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Charles Russell MOORE, Sr. v. Ronald S. SMITH 
No. 94, September Term, 1989
 
Court of Appeals of Maryland
 
321 Md. 347; 582 A.2d 1237; 1990 Md. LEXIS 190

 December  24, 1990

   PRIOR HISTORY: [***1]  
 
Circuit Court for  Anne Arundel  County pursuant to certiorari to Court of Special Appeals of Maryland; Eugene M. Lerner, Judge.

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID BY PETITIONER.

CORE TERMS:  testator, undue influence, deed, testatrix, bequest, beneficiary, personal representative, conveyed, survive, devise, ward, bequeathed, contingent beneficiary, benefited, financial affairs, invalidation, partially, bequeath, appoint, drafted, nephew, hired, coercion, exertion, execute, legacy, real property, entire estate, invalidating, invalidate

COUNSEL: Thomas P. Bernier (Jeanette Lockhart Cole, Fowley, Beckley, Stevens & Cole, P.A., all on brief), Baltimore, for appellant.

   Charles Bagley, IV (Donna G. McCabe, Council, Baradel, Kosmerl & Nolan, P.A., all on brief), Annapolis, for appellee.

JUDGES: Murphy, C.J., and Eldridge, Cole, Rodowsky and McAuliffe, JJ., Adkins, * J. (retired), and Charles E. Orth, Jr., J. (retired, specially assigned).

* Adkins, 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: COLE

OPINION: [*349] [**1237] In this case, involving testamentary law, we are asked to decide two issues: whether there was sufficient evidence to support a finding of undue influence and, if so, whether the circuit court erred in invalidating the testator's entire will instead of only [**1238] that part which was the result of the undue influence. n1

 n1 In his brief and at argument, Petitioner also challenged on sufficiency grounds the trial court's finding of fraud.  Under the disposition we make as to undue influence, we find it unnecessary to address the sufficiency of the evidence as to fraud.

[***2]

   [*350] Andrew O. Koontz, the testator in this case, died on October 19, 1985, at the age of sixty-eight.  In May 1987, a petition for probate was filed by the Petitioner, Charles Russell Moore, Sr., (Moore), in the Orphan's Court for Anne Arundel County.  Thereafter, the Respondent, Reverend Ronald S. Smith (Smith), the testator's nephew and closest immediate relative, filed a petition to caveat.  In May 1988, following a lengthy hearing, the Orphan's Court ruled that the will submitted by Moore was void because it had been procured by undue influence and fraud exerted by the Petitioner.  Pursuant to Md.Code (1974, 1989 Repl.Vol.), § 12-502 of the Courts and Judicial Proceedings Article, Moore appealed to the Circuit Court for Anne Arundel County for a de novo hearing.  We set forth the substance of the evidence produced at that hearing.

   Andrew Koontz (testator or Koontz), owned and lived in a waterfront property located in Arnold, Maryland.  For more than ten years, he shared this home with Grace Allen (Allen) who was the last of several women who had lived with Koontz and his housekeeper, Nada White, as part of an adult women's foster care program.  After Ms. White's death, [***3] Allen remained as Koontz's sole ward. In 1980, the testator executed a will prepared by his attorney (Edward Monaghan) in which he left one half of his estate to his nephew, Smith.  The testator devised the other half to Allen and directed that it be held in trust by Smith for Allen's benefit during her lifetime.  He named his attorney as personal representative and Smith as alternate personal representative.

   In 1983, the testator suffered a severe stroke which left him partially paralyzed, and physically dependent on others.  The testator was also partially blind.  The facts disclosed that the testator had always been dependent on those close to him to handle his financial affairs because he was unable to read or write, although he could sign his name.  Allen [*351] had a history of mental illness n2 and alcoholism, and, therefore, was also incapable of handling either testator's or her own financial affairs. Furthermore, she was incapable of providing sufficient physical support to assist the testator in moving about the house.  Consequently, in September 1984, the testator and Allen placed an advertisement in the newspaper seeking a live-in, male helper.  Petitioner Moore [***4] responded to the advertisement and was hired. Moore's compensation for this job was $100 a month plus room and board.  Because his duties did not require him to be home all day, Moore also held an outside job which paid approximately $7,000 per year.  Within a month of being hired, Moore went to an attorney, Franklin M. Ward, whom he knew, and requested that he prepare wills for both the testator and Allen.  Ward drafted the wills pursuant to Moore's instructions.  Ward never met the testator or Allen, nor did he consult with them regarding the contents of their wills.  Moore picked up the wills from Ward's office in November 1984 and took them home to be executed by Koontz and Allen.  According to Moore, he read the testator's will to him before he signed it.  Moore was a witness to each will and Koontz and Allen witnessed each other's will.  Moore stored the wills in his room.  Neither Koontz's nor Allen's family was advised of the execution of these wills at that time.

n2 According to medical documentation, Allen was diagnosed as Manic Depressive Reaction, Depressed and had been committed to Crownsville Hospital for treatment of this condition.

[***5]

   In addition to being named personal representative in both wills, Moore was also a contingent beneficiary. The relevant provision found in Koontz's two-page will reads as follows:
 
After the payment of all expenses of administration and other charges and obligations properly payable therefrom, I give, devise, bequeath and appoint all of my estate and property, real and personal, [**1239] whether in possession, expectancy or remainder, including any property [*352] over which I may have power of appointment to Grace Elizabeth Allen, if she survives me; but if she does not survive me, then I give, devise, bequeath and appoint the same to Charles R. Moore, Sr. [n3]
 
There was no mention of Koontz's nephew, Smith, in the testator's new will. Near the time these wills were executed, Smith underwent a series of life-threatening operations which prevented him from visiting the testator until two months before his death.

n3 The provision in Ms. Allen's will contained slightly different wording, and provided:
 
After the payment of all expenses of administration and other charges and obligations properly payable therefrom, I give, bequeath, devise and appoint all of my estate and property, real and personal, whether in possession, expectancy or remainder, including the property, if any, over which I may have power of appointment to Andrew Ottaway Koontz, if he survives me; but if he does not survive me, then I give, bequeath, devise and appoint the same to Charles R. Moore, Sr.

[***6]

   Approximately six months after the testator's death, Moore executed a deed in which he, purportedly as personal representative of the estate of Andrew O. Koontz, conveyed the testator's real property to Allen.  Simultaneously, a second deed was executed in which Allen conveyed her fee simple interest in this property to herself and Moore as joint tenants.  Over a year later, on May 27, 1987, Moore filed the petition for probate of Koontz's will.  On that same date, the two deeds described above were recorded.  Following the circuit court's affirmance of the ruling by the Orphan's Court invalidating the 1984 will, Moore appealed to the Court of Special Appeals.  We issued a writ of certiorari before proceedings commenced in that court and shall affirm.

   I

   Moore argues that there was insufficient evidence to prove that he exerted undue influence over the testator within the one-month period preceding the execution of the new will.  In response, Smith maintains that when considered [*353]in its totality, the evidence sufficiently supported the court's findings.

   Generally, undue influence amounts to physical or moral coercion that forces a testator to follow another's judgment instead[***7] of his own.  Page On Wills § 15.2 at 712 (1965).  In Nalley v. Nalley, 253 Md. 197, 251 A.2d 849 (1969), we stated that
 
undue influence which will avoid a will must be unlawful on account of the manner and motive of its exertion, and must be exerted to such a degree as to amount to force or coercion, so that free agency of the testator is destroyed.
 
253 Md. at 202, 251 A.2d 849, (Quoting Stockslager v. Hartle, 200 Md. 544, 547, 92 A.2d 363 (1952)). Although we have not laid down a test to determine the existence of undue influence with mathematical accuracy, we have recognized in many appellate cases several elements characteristic of its presence, including: 
 
1. The benefactor and beneficiary are involved in a relationship of confidence and trust;
 
2. The will contains substantial benefit to the beneficiary;
 
3. The beneficiary caused or assisted in effecting execution of will;
 
4. There was an opportunity to exert influence;
 
5. The will contains an unnatural disposition;
 
6. The bequests constitute a change from a former will; and
 
7. The testator was highly susceptible[***8] to the undue influence.
 
See Nalley, 253 Md. at 202, 251 A.2d 849, Shearer v. Healy, 247 Md. 11, 23-25, 230 A.2d 101 (1967); Arborgast v. MacMillan, 221 Md. 516, 521, 158 A.2d 97 (1960); Sellers v. Qualls, 206 Md. 58, 70-71, 110 A.2d 73 (1954); Stockslager supra, 200 Md. at 547, 552, 92 A.2d 363 (1952); Koppal v. Soules, 189 Md. 346, 350-52, 56 A.2d 48 (1947); Frush v. Green, 86 Md. 494, 501-02, 39 A. 863 (1898); Hiss v. Weik, [*354] 78 Md. 439, 446-47, 28 A. 400 (1894); Wall v. Heller, 61 Md.App. 314, 330, 486 A.2d 764, cert. denied, 303 Md. 297, 493 A.2d 350 [**1240](1985); Hess v. Frazier, 27 Md.App. 150, 154-55, 340 A.2d 313, cert. denied, 276 Md. 745 (1975). These same elements have been enumerated by courts in other jurisdictions. n4

 n4 See, e.g., Smith v. Crites, 781 S.W.2d 189, 191 (Mo.App.1989); Coppock v. Carlson, 547 So.2d 946, 947 (Fla.App. 3 Dist.1989); In re Estate of Opsahl, 448 N.W.2d 96, 100 (Minn.App.1989); Matter of Estate of Eubank, 50 Wash.App. 611, 749 P.2d 691, 695 (1988); In re Estate of West, 522 A.2d 1256, 1264 (Del.Supr.1987); Estate of Baker, 182 Cal.Rptr. 550, 556, 131 Cal.App.3d 471 (1982) Sheets v. Estate of Sheets, 345 A.2d 493, 495 (Me.1975); In re Gold's Estate, 408 Pa. 41, 182 A.2d 707, 713 (1962); In re Burrell, 251 Iowa 185, 100 N.W.2d 177, 184 (1959).

[***9]

   We have also pointed out that proving the existence of undue influence may be more difficult when it is perpetrated upon an individual with cunning and craftiness.  Consequently, notwithstanding the fact that direct testimony establishing the existence of undue influence is not presented, it still may be proved by circumstantial evidence.  Mills v. Glenn, 152 Md. 464, 468, 136 A. 831 (1927).

   In the instant case, the trial court made the following findings:
 
a) That Mr. Moore was actively involved in the preparation of a Will for Mr. Koontz approximately less than one month after beginning employment as his caretaker;
b) That Mr. Koontz could not read or write, except for signing his name;
c) That Mr. Koontz never personally consulted an attorney regarding the 1984 Will;
d) That Mr. Moore and Mrs. Allen, the two witnesses, were the sole beneficiaries under the Will;
e) That Mr. Moore prepared the Will and was largely benefited by it;
f) That the Will was executed in the seclusion of the Koontz home;
[*355] g) That none of Mr. Koontz's friends or family were present at the signing of the Will, or were informed of the Will until after his death;
[***10] h) That six months after Mr. Koontz's death, Mrs. Allen executed a deed making Mr. Moore a joint tenant with Mrs. Allen of Mr. Koontz's property.

   The lower court relied on Mills, supra and Grove v. Spiker, 72 Md. 300, 20 A. 144 (1890), as support for its conclusion that the will in the instant case was procured by undue influence. We now discuss these cases in turn.

   In Grove, the testatrix, who was eighty-seven, illiterate, and feeble-minded, leased office space to the caveatee, Grove, who was a lawyer.  After separating from his wife, Grove moved into the testatrix's home where he paid no rent.  He also stopped paying rent for use of the office space.  The testatrix later conveyed the office property to Grove, for which he paid nothing.  This transaction was executed without the knowledge of the testatrix's business agent who had always handled all of the testatrix's business transactions.  The testatrix's original will did not contain a bequest to Grove.  In 1885, however, Grove drafted a codicil to this will which reduced a legacy of $1,000, made to the testatrix's sister-in-law, to $250 and bequeathed the [***11] remaining $750 to himself.  This codicil was also executed without the business agent's knowledge.  Thereafter, in 1886, Grove secretly drafted and had executed a completely new will which left Grove and his daughter approximately 80 percent of the testatrix's estate.  Relying heavily on the clandestine circumstances through which the will was executed, the Court concluded that the exertion of undue influence by Grove was unmistakable.  72 Md. at 305, 20 A. 144.

   In Mills, the testatrix, Kate Glenn, asked a couple, the Mills, to move in and assist in her daily care.  Glenn's husband's job required him to be away from home for long periods of time and Glenn, seventy-one years old, illiterate, and crippled, was dependent upon the aid of others.  The Mills received no compensation for their duties.  Two [*356] months after the Mills moved in, Glenn executed a will leaving the majority of her property to the couple. Glenn's husband was not informed of the will, which left him a legacy of only $25.  The will was prepared by an attorney who met with Glenn; the Mills were not present at [**1241] this meeting or when the will was executed.  Two months after the [***12] will was executed, Glenn with Mr. Mills' guidance, then executed a deed conveying the house to the Mills.  On the same day, the Mills executed a mortgage to secure a loan in order to make repairs on the property. As Glenn explained to one witness, the deed was executed in order to secure the loan for repairs and to repay the Mills for all they had done.  Once again, Glenn's husband was not informed of these transactions.  Following Glenn's death, the Mills informed Glenn's husband of the execution of the will and deed. 

   In support of its conclusion that the deed was procured by the Mills' undue influence and fraud, the court relied heavily on the circumstances surrounding execution of the will and subsequent deed noting:

   It appears very unlikely that of her own free will she would dispose of [the home] without receiving any considerable part of its value, thus throwing herself and her husband in their old age, and in her extremity, upon the benevolence of others for a home, and, in part, for support.

   * * *

   They were living in intimacy with her, and she was much dependent upon their care.  They were in a favorable position for obtaining an unfair advantage, if they desired, and if[***13] it could be done.
 
152 Md. at 469, 136 A. 831. The Court also found the reasons upon which Glenn conveyed the property (to secure a loan for repairs and to repay the Mills) to be unconvincing; it concluded (1) that the loan could have been secured without execution of the deed, and (2) that the testatrix had already sought to "repay" the Mills through execution of her will.  Id. at 470, 136 A. 831. Consequently, the deed was set aside.

   [*357] Having reviewed the record in the instant case, we cannot say that the trial court's findings were clearly erroneous or insufficient to support the conclusion that there was undue influence in the procurement of the 1984 will. We explain.

   a.

   Susceptibility of testator, Confidential relationship and opportunity to exert undue influence

   The evidence seems to suggest that in 1980, Koontz enjoyed reasonably good health.  Although dependent upon others to handle his financial and business transactions due to his inability to read and write, Koontz was otherwise functionally independent and personally attended to his daily needs as well as those of his ward, Allen.  Koontz also[***14] demonstrated his ability to manage his affairs by consulting with a lawyer and instructing him to set up a trust for Allen to insure that she was cared for after his demise.  Overall, the testator, through his actions, indicated an awareness of his circumstances and limitation.

   Following his stroke in 1983, Koontz's circumstances changed dramatically. He was partially paralyzed, virtually immobile, and partially blind. Consequently, Koontz's dependence upon others increased significantly as he then needed assistance in washing and dressing himself, in preparing his meals, and in moving about the house.  Allen was physically incapable of lifting or moving Koontz.  Moreover, Allen was incapable of assuming full responsibility of the household chores.  Due to her medical-related problems and short term memory loss, she required constant supervision.  These circumstances compounded the limitations resulting from Koontz's illiteracy and made it imperative that he get help, for which Koontz subsequently advertised.  In sum, Koontz's situation created a perfect setting over which someone could take advantage.  Moore, recently divorced and discharged in bankruptcy, applied for this job [***15] and was hired.

   It appears that the stage was set for Moore not only to satisfy the requirements of his employment, but also to [*358] take the extra step to ingratiate himself with Koontz.  Moore assumed responsibility for tasks Koontz was no longer able to handle alone.  In light of the intimate nature of Koontz's physical limitations and reliance on Moore to attend his personal and physical needs, as well as Koontz's financial [**1242] affairs, the development of a confidential relationship was inevitable.  It was through these circumstances that Moore contrived to do whatever was necessary to coerce Koontz into undoing what he had rationally done in his 1980 will.

   b.

   Change from former will and unnatural disposition

   Allen was the primary devisee in the testator's 1984 will and Koontz was the primary devisee in Allen's will.  Moore was a contingent beneficiary under both wills.  Conversely, in the testator's 1980 will, one half of his estate was bequeathed to Smith, his nephew; and the other half of the estate was bequeathed to Allen, in trust, for her lifetime.  Moore maintains that the fact that the testator changed the bequests in his 1984 will is not per se indicative of the [***16]exertion of undue influence. What Moore fails to consider, however, are the inferences to be drawn from this and other facts which support the trial court's conclusions.  While the testator's intent to care for Allen has never been questioned, the evidence reveals that the testator expressed doubt as to Allen's ability to care for herself.  Thus, it is not likely that, having bequeathed one half of his estate to Allen in trust in his 1980 will, the testator would then bestow upon Allen his entire estate in total disregard of her limitations.  This result completely belies the intent manifested in Koontz's 1980 will.  Neither is it likely that, absent Moore's importunity or coercion, the testator would have named someone whom he knew less than a month as his personal representative and a contingent beneficiary. Those who had handled the testator's personal and financial affairs in the past were long-term acquaintances.  These [*359] people included testator's ex-wife, his brother-in-law, and a close childhood friend of Allen's.

   Moreover, we disagree with Moore's contention that the lower court failed to consider the significance of Smith's failing physical health.  Moore maintains [***17]that the testator may have changed his will in case Smith died before he did, which obviously would have prevented Smith from serving as trustee pursuant to the will.  Even if true, this does not explain why the testator would have seen a need to change the personal representative as well.  More important, Smith's inability to assume the role of trustee does not sufficiently explain why the testator would devise his entire estate to Allen outright, absent the concomitant appointment of a trustee to oversee Allen's use of this legacy. The circuit court obviously concluded that Moore intentionally placed himself in a position to control the assets of the estate.

   c.

   Beneficiary caused or assisted in causing execution of new will

   Like the Court in Grove and Mills, the trial court took into consideration the circumstances surrounding execution of the wills.  Within a month from the time he was hired (October 1984), Moore went to see an attorney and requested that he prepare wills for Koontz and Allen.  The evidence reveals that Koontz and Allen both had visitors, family and friends, on a regular basis, any of whom could have witnessed the execution of these wills.  Still, [***18] despite Koontz's illiteracy and Allen's short-term memory lapses, Moore had Allen and Koontz attest each other's will.  The trial court could reasonably infer from this fact that Moore was bent upon hiding the existence of the wills.  Moore never advised the testator's family or friends of the new will until after the testator's death.

   [*360] d.

   Substantial benefit to beneficiary

   The record is replete with evidence which supports the circuit court's finding that Moore was largely benefited by Koontz's will.  The benefits to be received by Moore, albeit not immediate, were both substantial and inevitable. Upon testator's death, his estate automatically passed to Allen and Moore's contingent interest under that will vanished.  Because he was also a contingent beneficiary under Allen's will, however, his interest under that will then became [**1243] vested, subject only to the possibility, however remote, that Allen would change her mind and make a new will naming a different beneficiary. In order to avoid this uncertainty, Moore then drafted two deeds. Under the first deed, Moore as personal representative of testator's estate purportedly conveyed the real property to Allen.  This conveyance[***19] was made notwithstanding the fact that the testator's will had not been admitted to probate.  Consequently, Moore had not been granted letters of administration and did not have the authority to convey the testator's property. n5 Moore manipulated Allen to execute the joint tenancy deed with the intention of preventing her from dispossessing herself and thereby thwarting his scheme to possess the entire Koontz estate.  Clearly, Moore's intent was to become the sole beneficiary under Allen's will, survivor under the deed, See, Young v. Young, 37 Md.App. 211, 217, 376 A.2d 1151, cert. denied, 281 Md. 746 (1977), and thereby acquire fee simple ownership of this real property.

n5 See Maryland Code (1974) § 6-105 of the Estates and Trusts Article.

   While the quantum of proof necessary to establish undue influence varies according to the susceptibility of the testator, Sellers, supra, 206 Md. at 70, 110 A.2d 73, here the evidence is abundant[***20] so as to manifest the existence of all seven elements.  Accordingly, we believe the trial court was correct in concluding that Moore had coerced Koontz to execute the 1984 will.

   [*361] II

   Moore next contends that because the trial court's finding of undue influence applied only to him, the trial court erred in invalidating the balance of the will which included the bequest to Allen.  Moore contends that, instead of voiding the entire will, the trial court needed only to invalidate that portion of the will which benefited him.  In this way, he continues, the testator's intent to provide for Allen following his death could have been realized.

   Smith, on the other hand, maintains that invalidation of the entire will was essential.  Smith reasons that Moore's goal, in unduly influencing Koontz, was to obtain his property.  The bequest to Allen was the means to that end. Therefore, partial invalidation of the will was not an option.

   The general rule, recognized in Maryland, is that undue influence which deprives a testator of his free agency is sufficient to invalidate a will, not only in relation to the person who unduly influenced the testator, but also as to all others who are so[***21] intended to be benefited by the undue influence. Davis v. Calvert, 5 G & J 269, 302 (1833); Grove, supra, 72 Md. at 307, 20 A. 144; Sellers, supra, 206 Md. at 71, 110 A.2d at 80; accord Matter of Estate of Jones, 370 N.W.2d 201, 203-04 (S.D.1985). As to partial invalidation of a will, we stated in Goertz v. McNally, 185 Md. 170, 175, 44 A.2d 446 (1945), that where a part of a testamentary instrument is shown to have been the result of undue influence, other portions of the will may still be given effect, if they can be separated from the invalid parts leaving intact an intelligible instrument.

   The primary bequest in the 1984 will left the entire estate to Allen, if she survived the testator. In the event she did not survive him, the estate was to go to Moore as the contingent beneficiary. Because Allen did survive Koontz, it would appear on the surface that Moore's undue influence did not defeat Koontz's donative intent.  In his 1980 will, Koontz, mindful of Allen's infirmities sought to insure his provision for Allen by leaving Allen one half[***22] of [*362] his estate to her in trust for life.  In the 1984 will, however, he bequeathed his entire fee simple estate to Allen outright.  Once this property passed to Allen, the provision in Allen's will devising all of this property to Moore then became effective.  We agree with the trial court that this second provision is not consistent with the 1980 intent.  We have already concluded that the trial court properly ruled that this result never would have occurred but for Moore's undue influence. Therefore, we may abbreviate our explanation as to why invalidation of the entire will was proper in this case.

   [**1244] As the trial court's memorandum opinion and order make clear, Moore's scheme to obtain Koontz's property was only to be realized through Koontz's unconditional devise to Allen.  Thus, Moore had to make access to Koontz's property feasible.  By coercing the testator to change the bequest to Allen of the life estate in trust in the 1980 will to the bequest of the entire fee simple estate in the 1984 will, Moore made this goal foreseeable.  As the sole beneficiary under Allen's will, Moore would acquire everything Koontz had originally devised to Allen.  As a safeguard against[***23] any act by Allen throwing his scheme out of sync, Moore had Allen execute a deed in which she conveyed the property to herself and Moore as joint tenants.  Upon execution of that deed, Moore sealed his right, albeit invalid, to ownership of Koontz's property.

   It is clear that Moore intended for Allen to serve as the conduit through which he ultimately benefited. Therefore, had the trial court invalidated only the clause in Koontz's 1984 will making Moore a beneficiary, and upheld the bequest to Allen, the taint of Moore's actions would have remained.  The only way to ensure that Moore did not benefit from his actions was to invalidate the entire will.  By doing so, the 1980 will was revived, and the testator's true donative intent was effected.

   JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED.  COSTS TO BE PAID BY PETITIONER. 

Paul HARRISON et al. v. JOHN F. PILLI & SONS, INC. 
No. 43, September Term, 1989
 
Court of Appeals of Maryland
 
321 Md. 336; 582 A.2d 1231; 1990 Md. LEXIS 193

 December  21, 1990

   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 VACATED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO VACATE THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AND TO REMAND THE CASE TO THAT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION; COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID ONE-HALF BY PETITIONERS AND ONE-HALF BY RESPONDENT.

CORE TERMS:  purchaser, water, sewer, seller, improved, deferred, settlement, deferred charges, canon, disclosure, subtitle, residential real property, twice, statutory construction, rescission, contract of sale, summary judgment, accrued, waived, actually paid, installment, ownership, entitled to judgment, remedial, waive, real property, entitled to summary judgment, residential purposes, required disclosure, piece of property

COUNSEL: Anthony P. Palaigos (Blum, Yumkas, Mailman, Gutman, & Denick, P.A., on brief), Baltimore, for petitioner.

   John S. Simcox (Steven J. Parrott, Hartman and Crain, on brief), Annapolis, for respondent.

JUDGES: Murphy, C.J., and Eldridge, Cole, Rodowsky, McAuliffe and Adkins, * JJ., and Marvin H. Smith, Associate Judge of the Court of Appeals of Maryland, retired, Specially Assigned, JJ.

* 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: [*338] [**1232] In 1985, John F. Pilli & Sons, Inc. (seller) entered into contracts with petitioners for the sale of homes in the Fair [***2]Oaks subdivision in Anne Arundel County.  Each of the six contracts involved in this case specified a particular lot and a particular home to be built by the seller on that lot, and required conveyance of the improved property within a specified time.

   At the time the contracts were signed, § 14-118 of the Real Property Article of the Maryland Code (1974, 1988 Repl.Vol.) provided, in pertinent part, as follows: n1

   (a) A contract of sale of improved, residential real property shall disclose to the initial purchaser the estimated cost, as established by the appropriate water and sewer authority, of any deferred water and sewer charges for which the purchaser may become liable . . . .

   [*339] (b) Violation of this section entitles the initial purchaser to recover from the seller two times the amount of deferred charges he is required to pay.
 
None of petitioners' contracts disclosed the existence or amount of any deferred water or sewer facilities charges. n2 Indeed, one cannot determine from the printed form contract used in each instance whether the property was subject to deferred water or sewer charges of any kind.  Each contract provided for adjustment at settlement of any[***3] such charges if they did exist, but also provided that "[t]he septic system and well, if any, are being installed under the direction of the county health officer . . . ."

n1 The disclosure provisions of § 14-118 were transferred to § 14-117 of the Real Property Article by chapter 756 of the Acts of 1989.

n2 A deferred water or sewer facilities charge represents the cost of installation of a water or sewer system, or a part thereof, that is fairly allocated to a particular piece of property served by the system, the payment of which is deferred in favor of annual payments over a stated number of years. Ordinarily, a lien for the deferred charges is imposed on the property.  See, e.g., Maryland Code (1982, 1987 Repl.Vol.) § 9-949 of the Environment Article.

   At settlement, or soon thereafter, petitioners learned that their lots were subject to a lien for the payment of deferred water and sewer charges.  Each lot owner was obliged to pay annual charges of $240 for water facilities charges, and a like amount for[***4] sewer facilities.  The deferred charges, which began in 1984, will continue until 2017.

   [**1233] In October of 1986, petitioners sued the seller in the Circuit Court for Anne Arundel County, seeking judgment for twice the amount of the deferred water and sewer charges, computed over the entire 31 year period of payments due subsequent to settlement. The seller denied liability, and each party moved for summary judgment. Judge Eugene M. Lerner granted petitioners' motion, finding that the seller was liable to each property owner for twice the amount of the deferred water and sewer facilities charges that had accrued at the time of the hearing.

   Each party appealed to the Court of Special Appeals.  The seller contended, among other things, that: 1) the contracts at issue were not for the "sale of improved, [*340] residential real property" within the meaning of the statute, because the lots were not improved at the time the contracts were signed; 2) the purchasers waived any right they may have had under the statute when they learned, at settlement, of the lien for deferred charges, and failed to object; 3) there was no evidence that Belleview Sewer and Water, Inc., the entity imposing the[***5] deferred charges, was an "appropriate water and sewer authority" within the meaning of the statute; and 4) in any event, damages should have been limited to twice the amount actually paid, rather than twice the amount of payments accrued.

   The purchasers contended they were entitled to judgment for twice the amount of the entire deferred charges, without regard to the amount that had accrued or been paid.  The Court of Special Appeals reversed the judgment of the circuit court, holding that the contracts were not for the "sale of improved, residential real property," and therefore the disclosure statute did not apply. Harrison v. John F. Pilli & Sons, 78 Md.App. 199, 204, 552 A.2d 971 (1989). The purchasers sought certiorari on the issue decided by the Court of Special Appeals.  The seller filed a conditional cross-petition for certiorari, asking that in the event we agreed with the purchasers, we address the remaining questions the seller raised in the intermediate appellate court.  We granted both petitions.

   I.

   We first address the applicability of the disclosure statute to the contracts involved in this case.  As previously noted, § 14-118 of the[***6] Real Property Article required disclosure, in any "contract of sale of improved, residential real property," of any deferred water and sewer charges for which the initial purchaser might become liable.  We conclude that under the clear language of the statute, these contracts are covered by the statute.  In each instance, the purchaser agreed to buy and the seller agreed to sell a piece of property with a single-family residential dwelling on it.  The purchase price in each instance was for the lot improved [*341] by the home.  The subject matter of each contract of sale was, therefore, "improved, residential real property."

   It is of no consequence that the lots were unimproved at the time the contracts were signed.  The contracts required the seller to make the improvements in order to convey that which it had agreed to sell.  The sale of "custom" homes forms a substantial part of the residential real estate market, and is every bit as much a "sale of improved, residential real property" as is the sale of a "speculation" home, i.e., one completed by the seller before being offered for sale.

   In reaching a contrary result, the Court of Special Appeals was persuaded by two factors. [***7] First, that Court held that the statute must be strictly construed because it is in contravention of common law.  78 Md.App. at 203, 552 A.2d 971. The canon of construction relied on by the Court of Special Appeals may have efficacy in appropriate cases.  It must be recognized, however, that most statutes have the effect of changing existing law, and therefore the canon "has been most commonly employed where the statute threatens to invade an existing property or contract right, or tends to interfere substantially with a cherished personal liberty." 3 Sutherland Statutory Construction, § 61.06 (4th ed. 1986 rev.).  Moreover, as Chief Judge Murphy pointed out for this Court in State v. Fabritz,[**1234] 276 Md. 416, 422, 348 A.2d 275 (1975), cert. denied, 425 U.S. 942, 96 S.Ct. 1680, 48 L.Ed.2d 185 (1976), even in the case of statutes ordinarily calling for strict construction, it is the intention of the legislature that governs and, like other statutes they "are to be fairly and reasonably construed, and courts should not, by narrow and strained construction, exclude from their operation, [***8] cases plainly within their scope and meaning." Finally on this point, we note that the statute is clearly remedial, and that there also exists a canon of statutory construction that remedial statutes are liberally construed to suppress the evil and advance the remedy.  See State v. Barnes, 273 Md. 195, 208, 328 A.2d 737 (1974); Fisher v. Bethesda Discount Corp., 221 Md. 271, 157 A.2d [*342] 265 (1960); Smith v. Higinbothom, 187 Md. 115, 48 A.2d 754 (1946); 2 Sutherland Statutory Construction § 60.01 (4th ed. 1986 rev.).  Conflicting canons of statutory construction are nothing new, as Judge Adkins pointed out for the Court in Kaczorowski v. City of Baltimore, 309 Md. 505, 512, 525 A.2d 628 (1987), for "[j]ust as in the science of Physics every action has an equal and opposite reaction, so it seems that every canon of statutory construction has an equal and opposite canon."

   The cardinal rule of statutory construction is to determine the intent of the legislature.  The logical starting place is with the language of the statute, and where that language is[***9] clearly consistent with the apparent purpose of the legislation, and does not produce any absurd results, further research may be unnecessary.  Kaczorowski, supra, 309 Md. at 515, 525 A.2d 628; Taylor v. Dep't of Employment and Training, 308 Md. 468, 472, 520 A.2d 379 (1987). Here, the language of the statute clearly embraces the sales contracts involved in this case, and the result of this interpretation is entirely consistent with the obvious intent and purpose of this remedial legislation. Resort to conflicting canons of construction is neither necessary nor desirable in this case.

   The second factor the Court of Special Appeals found persuasive is the definition of "property" within the Land Installment Contracts subtitle of the Real Property Article.  Section 10-101(d) provides as follows:

   'Property' means improved property or improved chattels real, occupied or to be occupied by the purchaser as a dwelling, or an unimproved, subdivided lot or lots intended to be improved for residential purposes.
 
The Court of Special Appeals reasoned that § 10-101(d) distinguished between improved real property and unimproved[***10] property intended to be improved for residential purposes. Additionally, the Court noted that § 14-118 had originally been enacted as § 10-109, and therefore had originally been included within the Land Installment Contracts subtitle.

   [*343] We do not find it necessary to interpret § 10-101(d) as it applies to land installment sales contracts.  It is clear to us the legislature never intended the definition provided by § 10-101(d) to apply to the disclosure requirements of a contract not involving installment sales.  As the legislative history of § 14-118 makes clear, the initial placement of that section in the Land Installment Contracts subtitle of Title 10 was an error, and that error was corrected when the disclosure statute was moved to Title 14 in 1982.  The Attorney General advised the Governor in 1977 that House Bill 712, the original disclosure statute, was incorrectly codified within the Land Installment Contracts subtitle, and suggested that the oversight be corrected by subsequent legislation. n3 Senate Bill 138, enacted as chapter 262 of the Acts of 1981, made the suggested correction by transferring the statute from Title 10 to Title 14 of the Real Property Article. [***11] The title of that bill provides, in part, that it is proposed:
 
For the purpose of altering the placement of certain provisions in the Annotated Code relating to contracts of sale [**1235] of real property in order to clarify the intent of the legislature . . . .
 
Thus, the definition of property in the Land Installment Contacts subtitle of the Real Property Article is not directly applicable because the disclosure statute had been removed from that subtitle before these contracts were executed, and the definition is of no value by analogy or history because it is apparent that the legislature never intended it to apply to this statute.

n3 Letter of May 9, 1977, from Attorney General Francis B. Burch to Governor Marvin Mandel, currently found in the 1977 committee files relating to House Bill 712, Maryland Department of Legislative Reference.

   II.

   Having determined that § 14-118 did require disclosure in the contracts at issue, we turn to the seller's [*344] contention that the rights granted by the statute were waived[***12] by the purchasers when they failed to interpose any objection at settlement. In Food Fair Stores v. Blumberg, 234 Md. 521, 531, 200 A.2d 166 (1964), this Court stated:
 
Waiver is the intentional relinquishment of a known right, or such conduct as warrants an inference of the relinquishment of such right, and may result from an express agreement or be inferred from circumstances.
 
Private rights conferred by statute, as well as those obtained by contract, may be waived. Hudson v. Maryland State Housing Co., 207 Md. 320, 330, 114 A.2d 421 (1955).

   In this case, however, we find no evidence of waiver.  The statute grants certain rights to purchasers when the required disclosure is not made in the contract of sale. These are not rights that need be, or could be, exercised at settlement. Indeed, the remedy granted by the statute -- recovery by the initial purchaser of "two times the amount of deferred charges he is required to pay" -- clearly contemplates that the purchaser will settle on the contract and take title to the property.  Assuming that the purchasers had a right to rescind the contracts because of the [***13] failure of the seller to disclose these charges, but see Vincent v. Palmer, 179 Md. 365, 373, 19 A.2d 183 (1941) (unilateral rescission available only for substantial breach tending to defeat the object of the contract), the purchasers would waive that right by proceeding to settlement. But we are not concerned here with the right of rescission. Rather, we are concerned with the right to proceed with the contract and receive the damages provided by statute for the failure to disclose.  This is not a situation, where, as in Hudson v. Maryland State Housing Co., supra, 207 Md. at 320, 114 A.2d 421, the statute granted a purchaser the right to avoid a land installment sales contract because of non-disclosure of information, and the purchaser waived that right by accepting the benefits of the contract for a year and a half and had indicated his satisfaction with the extent of the information that was provided.  Id. at 330, 114 A.2d 421.

   [*345] Section 14-118, as it appeared at the time the contracts were signed, n4 did not purport to grant a right of rescission, but rather contemplated [***14] settlement of the contract and a subsequent right of the purchaser to recover statutory damages.  The purchasers in this case were not required to lodge any protest at settlement, and their failure to do so does not constitute a waiver of their rights under the statute.

n4 Section 14-118 was amended by chapter 517 of the Acts of 1988 to modify the recovery available to the purchaser, and added, as a potential recovery "any deposit monies actually paid by the purchaser that were lost as a result of violation of this subtitle." We intimate no view concerning the possible effect of this change on the purchaser's right of rescission.

   III.

   The seller next argues that the purchasers were not entitled to summary judgment because they did not show that Belleview Sewer and Water, Inc. (Belleview) was "the appropriate water and sewer authority." The record shows that the purchasers alleged that Belleview billed them for the deferred water and sewer facility charges, and copies of those bills were attached to the amended complaint. [***15] The purchasers also alleged that their obligation to pay the deferred charges was created by agreements recorded in the land records of Anne Arundel County in 1984, but those agreements are not in the record.  The seller did [**1236] not admit these allegations, and specifically argued that Belleview was not the appropriate water and sewer authority. n5

n5 In support of its motion for summary judgment, the seller argued that Belleview was a private corporation, and therefore could not fit the definition of "authority" established by § 9-901(b) of the Environment Article, Maryland Code (1982, 1987 Repl.Vol.).  At the time the contracts in this case were signed, that section of the Code did not apply to the part of Anne Arundel County in which these properties are located.  Section 9-922 of the Environmental Article, Maryland Code (1982).

   The purchasers refer us to sections of the Anne Arundel County Code permitting the County to enter into agreements [*346] which allow developers to recoup from subsequent users certain costs[***16] of improvements made by the developer to the County's water or waste water system.  The purchasers do not, however, offer any evidence of the existence or content of such an agreement between the County and Belleview.  We do not propose to discuss, in a vacuum, the circumstances under which Belleview might properly be considered an "appropriate water and sewer authority" within the meaning of the statute.  We cannot determine whether the facts that may be dispositive of that issue are contested, because those facts are not before us.  It was incumbent upon the purchasers, if they were to have summary judgment, to produce uncontested facts which, as a matter of law, demonstrated that Belleview was an appropriate water and sewer authority.  This they have failed to do, and we must therefore direct that the summary judgment entered in their favor be vacated.

   IV.

   The final question concerns the amount of damages awarded.  The purchasers originally contended they were entitled to judgment for double the total amount of deferred water and sewer facilities charges.  They have now abandoned that position, and we think appropriately so.  The additional dispute that originally existed between[***17] the parties involved the question of whether the judgment should be based upon payments that have accrued during continued ownership of the initial purchaser, or are restricted to payments actually made during continued ownership of the initial purchaser. The parties agreed at oral argument that recovery should be based on payments actually made if the purchasers ultimately prevail in this case.  Thus, no issue involving the computation of damages remains before us for resolution.

   V.

   In summary, we find that former § 14-118 (now § 14-117(b)) of the Real Property Article applied to the [*347] contracts in this case; that the purchasers did not waive their claim to statutory damages by failing to object at the time of settlement; that the purchasers were not, however, entitled to summary judgment, because the evidence of record does not establish that Belleview is "the appropriate water and sewer authority" within the meaning of the statute; and, that if the purchasers are entitled to damages, those damages shall be twice the amount of deferred water and sewer facilities charges actually paid by each initial purchaser during that purchaser's continued ownership of the property. [***18]

   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 TO REMAND THE CASE TO THAT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION; COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID ONE-HALF BY PETITIONERS AND ONE-HALF BY RESPONDENT. 

LETTERING UNLIMITED et al. v. Janet GUY et al. 
No. 34, September Term, 1990
 
Court of Appeals of Maryland
 
321 Md. 305; 582 A.2d 996; 1990 Md. LEXIS 188

 December  11, 1990

   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 THE APPELLANTS.

CORE TERMS:  screening, silk, accidental injury, claimant, knee, occupational disease, shirt, lever, accidental, injurious, exposure, screen, trauma, clearly erroneous, disability, repetitive, machine, ink, sewing machine, carpal tunnel syndrome, workers' compensation, compensable, recommended, unexpected, bilateral, soreness, resting, tunnel, stint, pull

COUNSEL: Alfred J. Dirska (Dirska and Levin, on brief), Columbia, for appellants.

   Antonio R. Lopez and Theodore B. Cornblatt (Alfred M. Porth, Smith, Somerville & Case, on brief), Baltimore, for appellees.

JUDGES: Murphy, C.J., and Eldridge, Rodowsky, McAuliffe and Chasanow, JJ.

OPINIONBY: RODOWSKY

OPINION: [*306] [**996] In this workers' compensation case the issue is whether the claimant's bilateral carpal tunnel syndrome is an occupational disease or an accidental injury. Resolution of the issue controls which of two compensation insurers is on the risk.

   The claimant, Janet Guy (Guy), was employed by Lettering Unlimited.  She was awarded temporary total disability for the period October 31, 1987, to January 14, 1988, by the Workmen's Compensation Commission (the Commission).  The Commission found that Guy sustained an occupational disease, that the date of last injurious exposure was October 30, 1987, and the first date of disablement was October 31, 1987.  West American Insurance [***2] Company (West American) ceased being Lettering Unlimited's compensation insurer on October 27, 1987, and Hartford Accident & Indemnity [*307] Co. (Hartford) went on the risk on October 28.  Accordingly, the Commission dismissed Guy's claim against West American and entered the award against Lettering Unlimited and Hartford.

   The employer and Hartford appealed to the Circuit Court for Anne Arundel County [**997] contending, inter alia, that Guy had suffered an accidental injury or, if the condition was an occupational disease, that the date of last injurious exposure was prior to October 28.  Were Hartford successful on either contention, West American would be responsible for Guy's benefits.

   The action was tried without a jury.  At the close of Hartford's case, West American moved for judgment which the circuit court granted.  It acted pursuant to Maryland Rule 2-519(b): "When a defendant moves for judgment at the close of the evidence offered by the plaintiff in an action tried by the court, the court may proceed, as the trier of fact, to determine the facts and to render judgment against the plaintiff . . . ." In so ruling the court observed that "[t]here's testimony from Ms. Guy that[***3] she had this [painful condition] . . . she was suffering with it before.  This wasn't some unexpected result out of her normal employment."

   The employer and Hartford appealed to the Court of Special Appeals.  We issued the writ of certiorari on our own motion prior to consideration of the case by that court.

   Hartford's principal contention is that Guy's disability was produced by her performing intensively, over a period of two weeks, a silk screening process. Hartford submits that this period of work was so unusual that the disability should be classified as an accidental injury. West American contends that, throughout Guy's employment at Lettering Unlimited, silk screening had been a task which Guy was called upon periodically to perform so that the injury was not "accidental."

   Our task is to determine whether the trial court's findings were clearly erroneous. Inasmuch as judgment was entered [*308] pursuant to the above-quoted provisions of Rule 2-519(b), "the trial judge was allowed to evaluate the evidence, as though he were the jury, and to draw his own conclusions as to the evidence presented, the inferences arising therefrom, and the credibility of the witnesses [***4] testifying." Pahanish v. Western Trails, Inc., 69 Md.App. 342, 353, 517 A.2d 1122, 1127 (1986). The fact-finding aspect of Rule 2-519(b) applied here is derived from Fed.R.Civ.P. 41(b).  In reviewing judgments entered under that aspect of Rule 41(b) federal appellate courts apply the clearly erroneous standard.  See Wilson v. United States, 645 F.2d 728 (9th Cir.1981); Shull v. Dain, Kalman & Quail, Inc., 561 F.2d 152 (8th Cir.), cert. denied, 434 U.S. 1086, 98 S.Ct. 1281, 55 L.Ed.2d 792 (1977).

   Three witnesses, Guy, her attending physician, and Hartford's examining physician testified in the circuit court.  We summarize the relevant evidence.

   Guy, then age twenty, began work for Lettering Unlimited in 1980.  After the first year or two her primary duties were to do personalized machine embroidery on jackets and silk screening on tee shirts. She was an "all-round person" capable of doing any of the tasks in the shop.  Because embroidering required more skill, that was Guy's predominant task.

   The silk screening process, as described by Guy, involves applying ink through[***5] a screen onto a shirt. The shirt is first held in place on a flat surface by "a metal thing" and a screen is pulled down on top of that. "You put ink at the top of the screen with a spatula, and you take both hands and you have to push down and pull back as hard as you can at the same time to make the squeegee flex and pull the ink through the screen to go onto the shirt."

   Silk screening was something which Guy was asked to do on an ongoing, although somewhat unpredictable, basis.  She would do "a job here and a job there in [her] spare time," or when there was a great demand for silk screening, or when the shop was short staffed.

   [*309] Beginning several years before 1987, Guy had had problems with her left hand, consisting of soreness in the fingers and "a little bit of discomfort and pain up into [her] elbow." The condition only arose when she worked "a lot." It would go away after resting, for example, after resting over the weekend.

   In August 1987, Guy returned to work following a three month maternity leave. [**998] Lettering Unlimited had insufficient personnel to perform silk screening, and Guy was exclusively assigned to silk screening for two consecutive weeks.  She had never[***6] before done so much silk screening on a continuous basis.  Following that stint she experienced extreme pain and swelling in her right hand and soreness and pain in her left hand.

   On October 12, 1987, Guy saw her family physician, Dr. Robert P. Kroopnick. He suspected bilateral carpal tunnel syndrome, but his working diagnosis was sprain of the right wrist.  He recommended that Guy discontinue working, take an anti-inflammatory medicine and return in two weeks if the condition were not improved.

   Guy nevertheless continued working through October 30, 1987.  On October 26 she again saw Dr. Kroopnick.  From various tests he concluded that surgery was probably required.  He apparently embodied that opinion in a note dated October 30 explaining why Guy would thereafter be absent from work.  Guy underwent a right carpal tunnel release in November 1987.  A similar operation was performed on her left hand in October 1988.

   "In this State . . . the failure of some essential function of the body[] is held to be accidental injury only when it results from some unusual strain or exertion of the employee or some unusual condition in the employment." Kelly-Springfield Tire Co. v. Daniels, 199 Md. 156, 161, 85 A.2d 795, 797-98 (1952).[***7] And see Courtney v. Board of Trustees, 285 Md. 356, 363, 402 A.2d 885, 889 (1979) (analogizing statutes authorizing payment of accidental disability retirement benefits to accidental injury under workers' compensation [*310] statute).  "[I]n Maryland the term 'accidental injury' does not include unexpected results not produced by accidental causes . . . ." Bethlehem Steel Co. v. Golombieski, 231 Md. 124, 129, 188 A.2d 923, 926 (1963). In the case at hand silk screening was part of Guy's regular duties, not simply as a matter of job description, but by actual performance.  Although the two week stint in August was the longest continuous time during which Guy performed that task, the circuit court was not clearly erroneous in concluding that the disability was the result of an occupational disease as opposed to an accidental injury. n1

 n1 Carpal tunnel syndrome has been recognized as an occupational disease in other contexts in recent Maryland case law.  See Miller v. Western Elec. Co., 310 Md. 173, 528 A.2d 486 (1987); James v. General Motors Corp., 74 Md.App. 479, 538 A.2d 782 (1988). At no point did appellants argue that Guy's medical difficulties were neither an accidental injury nor an occupational disease.

[***8]

   Hartford emphasizes Foble v. Knefely, 176 Md. 474, 6 A.2d 48 (1939) and Holbrook v. GM Assembly Division, General Motors Corp., 15 Md.App. 425, 291 A.2d 171 (1972). In Foble the claimant was a sewing machine operator in a shirt factory.  The needle on the sewing machine typically was raised and lowered by a lever controlled by pressure applied by the operator's knee. The lever on the machine operated by the claimant was defective.  Among other defects a plate, adjustable on the lever rod to the height of the operator's knee, had turned so that the claimant was pressing her knee against the set screw.  This Court affirmed a circuit court judgment holding that the claimant had suffered an accidental injury. R. Gilbert & R. Humphreys, Jr., Maryland Workers' Compensation Handbook § 5.1, at 84-85 (1988) have commented on Foble.

   "It appears that some students of the [Maryland Workers' Compensation] Act accept the above facts as standing for the proposition that injury caused by repetitive trauma constitutes a compensable claim.  This notion is mistaken and subverts the actual basis of the decision by the Court[***9] of Appeals.  A thorough review of Foble discloses [*311] that the knee lever which caused the injury was defective . . . .  It was the additional trauma created by the machine's fault which made the injury an accidental one.  Nowhere within the opinion did the Court of Appeals hold that injury caused by repetitive but ordinary, usual or expectable trauma could provide the basis for a compensable accidental injury. While ordinary [**999] or usual job-related repetitive trauma cannot predicate a claim for accidental injury, it might form the basis for an occupational disease claim."
 
(Footnotes omitted).  We agree with the authors' analysis of Foble.

   Holbrook v. GM Assembly Division involved an automobile assembly line worker, the circumstances of whose job had changed.  For some years the worker had performed his task seated on a stool.  Apparently in order to expedite the performance, the employer directed the claimant to work in a kneeling position. Knee pads were provided which bit into the claimant's legs when his knees were bent and the skin on the claimant's knees was irritated from friction with the pad.  Guy's claim does not involve any change of circumstances[***10] in the silk screening technique.

   Hartford also argues that the day of last injurious exposure, by which Hartford means of silk screening by Guy, must be earlier than October 28 because Dr. Kroopnick recommended on October 12 that Guy not work.  But there is testimony by Guy as follows:

    "Q. Well, specifically on that date, October 28, 1987, if you recall doing any silk screening on that date[?]

   "A. Maybe forty-five minutes for each job."
 
Decisions of the Commission are prima facie correct, and the burden of proof is upon the party attacking the Commission's decision.  Md.Code (1957, 1985 Repl.Vol.), Art. 101, § 56(c).  To the extent that Guy's testimony was ambiguous, it was Hartford's obligation to clarify the same.  The circuit court was not clearly erroneous in concluding that [*312] the last day of injurious exposure was the last day of work by Guy at Lettering Unlimited.

   JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED.  COSTS TO BE PAID BY THE APPELLANTS. 

BELLEVIEW CONSTRUCTION CO., INC. v. RUGBY HALL COMMUNITYASSOCIATION, INC. 
No. 70, September Term, 1989
 
Court of Appeals of Maryland
 
321 Md. 152; 582 A.2d 493; 1990 Md. LEXIS 177

 November  30, 1990

   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, WITH COSTS.

CORE TERMS:  covenant, developer, dwelling, deed, recorded, re-subdivision, regulations, erected, restrictive covenants, single family, purchaser, conveyed, plat, acre, zoning, ambiguity, restrictive covenant, defeat, dwelling house, newly-created, constructed, subdivide, frontage, rule of strict construction, property owner, distinguishable, contemplation, neighborhood, construing, inclusion

COUNSEL: Milissa A. Murray, Royal G. Shannonhouse, Blumenthal, Wayson, Downs and Offutt, P.A., all on brief, Annapolis, for petitioner.

   William M. Simmons and Dorothy B. McCullough, both on brief, Annapolis, for respondent.

JUDGES: Murphy, C.J., Eldridge, Cole, Rodowsky, McAuliffe and Adkins, * JJ., and Charles E. Orth Jr., Judge Retired, Specially Assigned.

* 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: [*154] [**494] We are concerned here with the proper interpretation of a restrictive covenant affecting petitioner's property in the community of Rugby Hall Estates, located in Anne Arundel County.  The restriction states that "only one single family dwelling for private residence purposes shall be erected on each lot." The question is whether "each lot" described in the restriction means each lot as conveyed by the developer, or each lot that thereafter may be created by any[***2] re-subdivision conforming to the subdivision and zoning regulations of the county as they exist from time to time.  We hold that the former interpretation accords with the intent of the parties, whether measured solely by the four corners of the documents creating the covenant, or by those documents as supplemented by other documents of record and by information readily available to grantees, including remote grantees.

   Rugby Hall Estates, located on the eastern shore of the Severn River between Ringgold Cove and Asquith Creek, was developed by Rugby Hall Estates, Inc. (the developer).  The lots in the first section of Rugby Hall Estates were created by deed, before comprehensive zoning and subdivision regulations had been adopted for this portion of Anne Arundel County.  By deed dated 12 January 1953, the developer conveyed two lots, by metes and bounds description, to the initial purchasers. The habendum clause of the deed stated that the property was subject to covenants, restrictions, and conditions created by a deed of restrictions dated 27 March 1952, which had been recorded by the [*155] developer. Through mesne conveyances, the lots were deeded, in 1977, to Alan and Frances [***3]Jackson (the Jacksons).  The deed to the Jacksons also accomplished an adjustment of the division line between the two lots.  A plat, recorded as a part of the deed, shows lot A was increased in size from 1.71 acres to 2.17 acres, and lot B was reduced from 1.54 acres to approximately 1 acre. n1 It is lot A with which we are here concerned.

n1 The parties to this action do not complain about the revision of the lot line.  The revision ostensibly was recorded to correct an error that occurred when a driveway serving the residence that had been constructed on lot A was found to have encroached on lot B.

   In 1982, pursuant to the provisions of the original deed of restrictions, n2 a majority of the owners of the lots in Rugby Hall Estates, together with the developer, executed and recorded an "Extension and Amendment of Deed of Covenants, Restrictions, and Conditions," by which they amended in part and continued in force the original restrictions.  Rugby Hall Community Association, Inc. (the association) was substituted[***4] for the developer as the party having authority to approve plans for construction, to grant variances from set-back requirements, to approve fences, and the like.  The restriction that "only one single family dwelling for private residence purposes shall be erected on each lot" was retained.  The Jacksons signed the deed amending and extending the restrictions.

n2 Paragraph 11 of the 1952 Deed of Restrictions provided as follows:

   All the covenants, restrictions and conditions contained herein shall be in perpetuity, but on or after thirty years from the date of these presents a majority of owners of the lots may amend, cancel, annul or abrogate any and all of the covenants, restrictions or conditions by a writing duly executed and properly recorded among the Land Records of Anne Arundel County.  (Emphasis in original).

   In May of 1983, the Jacksons recorded a plat of subdivision of lot A, creating new lots A and C.  New lot A, surrounding the residences earlier constructed at the rear of original lot A, contained[***5] 1.247 acres. Newly-created lot C contained .922 acres of unimproved land.  On 30 June 1987, the Jacksons conveyed newly-created lots A and C, [*156] together with lot B, to Belleview Construction Company, Inc. (Belleview), the petitioner.

   Belleview proposed to construct a single family dwelling on newly-created lot C and, as required by the restrictive covenants, submitted plans to the association for approval.  The association refused to consent to the construction of a dwelling house on lot C, on the grounds that: 1) the original and the amended covenants prohibited such [**495] construction because a dwelling had already been constructed on original lot A, from which lot C had been carved; and, 2) the proposed construction would be "contrary to the scheme of development of the community."

   Belleview then sued the association in the Circuit Court for Anne Arundel County, seeking declaratory and injunctive relief.  Judge A. Chester Goudy, Jr. entered judgment in favor of the association, declaring that the restrictive covenants were valid, and that the clear meaning of the restriction of "only one single family dwelling . . . on each lot" applied to the lots as conveyed by the developer. [***6] Thus, he held that although an owner might lawfully subdivide an original lot in accordance with county regulations, that did not create a right to construct an additional dwelling prohibited by the restrictive covenants. Belleview appealed, and the Court of Special Appeals affirmed the judgment in an unreported opinion.  We granted Belleview's petition for certiorari, and we affirm.

   The original and extended covenants are covenants running with the land. They were recorded in a separate instrument, and were referred to in deeds subsequently executed by the developer. They are, by their terms, enforceable by the developer, the association, or any lot owner.  The covenants were clearly established as part of a general plan of development for this community.  A preliminary paragraph of the original Deed of Covenants recited:
AND WHEREAS 'The Developers' intend to sub-divide a certain portion of said tract of land into lots for sale to the public, which said portion is hereinafter particularly [*157] described, but subject however to certain covenants, conditions and restrictions to run with the land and to be binding alike upon the developers and purchasers, their successors, [***7] assigns, heirs, executors and administrators.
 
The deed further provided that "all lots of ground sold out of the . . . tract shall be subject to the [described] covenants, conditions, and restrictions . . . ." The developer reserved the right to change or modify the lot lines or method of subdivision of unsold lots without the consent of purchasers, provided the change did not immediately affect the right of any purchaser.

   As originally written, the requirement that "only one single family dwelling . . . shall be erected on each lot" was qualified by the clause "without the written permission of 'THE DEVELOPERS.'" When the covenants were amended and reimposed in 1982, the qualifying clause was removed.

   In construing covenants, "[i]t is a cardinal principle . . . that the court should be governed by the intention of the parties as it appears or is implied from the instrument itself." Live Stock Co. v. Rendering Co., 179 Md. 117, 122, 17 A.2d 130 (1941). The language of the instrument is properly "considered in connection with the object in view of the parties and the circumstances and conditions affecting the parties and the property . . . ." Levy v. Dundalk Co., 177 Md. 636, 648, 11 A.2d 476 (1940).[***8] This principle is consistent with the general law of contracts.  See Anne Arundel County v. Crofton Corp., 286 Md. 666, 673, 410 A.2d 228 (1980) (court, in construing agreement, must first determine from the language of the agreement itself, what a reasonable person in the position of the parties would have meant at the time the agreement was effectuated).  If the meaning of the instrument is not clear from its terms, "the circumstances surrounding the execution of the instrument should be considered in arriving at the intention of the parties, and the apparent meaning and object of their stipulations should be gathered from all [*158] possible sources." Live Stock Co. v. Rendering Co., supra, 179 Md. at 122, 17 A.2d 130.

   If an ambiguity is present, and if that ambiguity is not clearly resolved by resort to extrinsic evidence, the general rule in favor of the unrestricted use of property will prevail and the ambiguity in a restriction will be resolved against the party seeking its enforcement.  Martin v. Weinberg, 205 Md. 519, 526, 109 A.2d 576 (1954); Himmel v. Hendler, 161 Md. 181, 187, 155 A. 316 (1931);[***9] Guilford Ass'n Inc. v. Beasley, 29 Md.App. 694, 699, 350 A.2d [**496]169, cert. denied, 277 Md. 735 (1976). The rule of strict construction should not be employed, however, to defeat a restrictive covenant that is clear on its face, or is clear when considered in light of the surrounding circumstances.
The courts seem to have generally recognized that there is no public policy against a fair and reasonable construction, in the light of surrounding circumstances, of restrictions designed, in general, to accomplish the same beneficial purposes as zoning.
 
Martin v. Weinberg, supra, 205 Md. at 527, 109 A.2d 576.

   The courts, it would seem, are under a duty to effectuate rather than defeat an intention which is clear from the context, the objective sought to be accomplished by the restriction and from the result that would arise from a different construction.
 
Guilford Ass'n Inc. v. Beasley, supra, 29 Md.App. at 700, 350 A.2d 169. See also Lake Barrington Shore Homeowners v. May, 196 Ill.App.3d 280, 143 Ill.Dec. 107, 109, 553 N.E.2d 814, 816 (1990)[***10] (rule of strict construction in favor of free use of property not applied to defeat obvious purpose of restriction, even if not precisely expressed).

   We think it is clear the limitation that "only one single family dwelling . . . shall be erected on each lot" refers to each lot conveyed by the developer. The deed of covenants made specific reference to the intention of the developer to "sub-divide a certain portion of [a] tract of land into lots for sale to the public." The deed further provides that "all lots [*159] of ground sold out of the . . . tract shall be subject to the . . . covenants, conditions, and restrictions . . . ." The restrictions were for "the mutual benefit to be derived by the developers and the purchasers." The general plan of development was for an attractive and desirable community consisting of lots of substantial but varying sizes, with little or no repetition in shape.  Though contemplated, and soon to be put in place, there were no zoning or subdivision regulations controlling this portion of Anne Arundel County at the time the original covenants were recorded. n3 The developer who conceived the community, and those who bought from him, had every right[***11] to rely upon the carefully conceived plan of development, and to rest assured that the lots created by the developer and to which the restrictions attached, would not subsequently be divided into such pieces as might satisfy zoning and subdivision regulations which might thereafter be adopted.

n3 Zoning by municipalities in this State was authorized by Chapter 599 of the Acts of 1933.  An enabling act relating specifically to Anne Arundel County was enacted as Chapter 551 of the Acts of 1943.  Zoning regulations were thereafter enacted for parts of Anne Arundel County.  See Anne Arundel County v. Ward, 186 Md. 330, 46 A.2d 684 (1946). A comprehensive zoning ordinance was later passed, and became effective 1 July 1952.

   The interpretation urged by the association is reasonable and logical.  The interpretation urged by Belleview is, at best, only remotely plausible.  Indeed, it almost defies common sense to suggest that although "lot" obviously means a lot as conveyed by the developer virtually[***12] everywhere it is used in the deed of restrictions, it should somehow be afforded a different meaning, tied to subdivision regulations not then in effect, when it is used in this restriction.  An ambiguity does not exist simply because a strained or conjectural construction can be given to a word.

   Moreover, if the intent of the parties concerning the meaning of the restriction is to be measured by the circumstances prevailing 30 years later, when the restriction was reimposed, the result is equally clear.  During the entire [*160] intervening period of time, not a single lot was subdivided for the purpose of constructing a second dwelling on an original lot.  The long-standing interpretation given the restriction by the developer and all the lot owners furnishes additional evidence of their intent at the time of the reimposition of the restriction.

   Belleview relies on several out-of-state decisions to support its position. We find each case distinguishable from the case before us.  In Andrews v. Lake Serene Property Owners Ass'n, 434 So.2d 1328 [**497] (Miss.1983), a property owner was allowed to subdivide lots that were subject to restrictive covenants, and was permitted[***13] to build a dwelling on each new lot.  The particular covenant at issue provided:
 LOT AREA & WIDTH: No dwelling shall be erected or placed on any lot having a width of less than 50 feet at the minimum building setback line nor shall any dwelling be erected or placed on any lot having an area of less than 17,500 square feet.
 
The covenants did not specifically prohibit re-subdivision. Each new lot created by the owner's re-subdivision contained at least 20,000 square feet.  The significant distinction that we note between the covenant involved in the Mississippi case and the covenant which is before us is the presence in the former of a required minimum area for each building lot.  The inclusion of a required minimum area strongly suggests contemplation of re-subdivision, because in the absence of such division the requirement would be unnecessary.  Another case relied on by Belleview, Callaham v. Arenson, 239 N.C. 619, 80 S.E.2d 619 (1954), is also distinguishable on the same basis.

   Hickson v. Noroton Manor, 118 Conn. 180, 171 A. 31 (1934), deals with the applicability of a restrictive covenant prohibiting the creation[***14] by subdivision of any lot having a "frontage" of less than 100 feet.  The property involved was a corner lot having more than the required "frontage" along one street, but less than that required along the intersecting street.  The Connecticut Court simply applied the least restrictive of two possible interpretations, and the [*161] result there reached is not inconsistent with our decision in the instant case.

   The case of Turnley v. Garfinkel, 211 Tenn. 125, 362 S.W.2d 921 (1962), although containing language generally supporting Belleview's position, may also be distinguished on its facts.  There, a plat of subdivision and a deed of restrictive covenants pertaining to the subdivision, were recorded within two days of each other.  The covenants did not contain any express restriction concerning the size, frontage, or minimum area of any lot, nor did they expressly deny to any owner the right to subdivide a lot.  There was included in the covenants, however, a requirement that "[n]ot more than one dwelling shall be built on any lot and maintained thereon at any one time." The Supreme Court of Tennessee approved a re-subdivision of one of the platted[***15] lots, and approved the construction of a dwelling on each of the resulting lots.  It did so, however, by referring to provisions included by the developer in the original plat of subdivision, which specifically contemplated re-subdivision of the lots when certain conditions were met.  The court held that the restrictive covenants had to be read together with the provisions for subdivision appearing on the recorded plat, and thus could not logically be read to preclude re-subdivision and the construction of a dwelling on each lot that met the requirements established by the plat.

   More in point, we think, is the case of Belle Terre Ass'n v. Brosch, 216 So.2d 462 (Fla.App.1969). There, a covenant running with the land was recorded to require that "only one dwelling house . . . shall be erected on any single lot or plot and each dwelling house shall be for one family only." A property owner divided an existing improved lot by a deed of conveyance, and obtained a building permit to construct a dwelling on the additional lot thereby created. The neighborhood association and individual lot owners brought an action for declaratory relief.  After distinguishing cases [***16] in which the covenants, by the inclusion of minimum lot sizes, demonstrated contemplation of further subdivision, the Florida appellate court held that the restriction [*162]was valid, meant what it said, and prohibited the construction of an additional dwelling.

   If this transparent device [division of a lot by deed] is approved, there goes the neighborhood. Thousands of Floridians who have in good faith undertaken to comply with restrictions intended for the benefit of themselves and their neighbors could no longer have confidence that some purchaser could not chop his lot up into the smallest lots permitted by ordinance.
 
[**498] Id. at 463. To the same effect, see Sky Mountain Ranch Subdiv. Prop. O. Ass'n v. Williams, 12 Ariz.App. 244, 469 P.2d 478 (1970).

   The trial judge correctly determined that the clear meaning of the restrictive covenant in the case before us precluded the construction of an additional dwelling on lot C.

   JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED, WITH COSTS. 

Jody Kathleen BOYD v. STATE of Maryland 
No. 62, September Term, 1989
 
Court of Appeals of Maryland
 
321 Md. 69; 581 A.2d 1; 1990 Md. LEXIS 169

 October  29, 1990

   SUBSEQUENT HISTORY: [***1]

   As Corrected October 30, 1990.

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 AFFIRMED, WITH COSTS.

CORE TERMS:  codefendant, disqualification, recusal, murder, disqualified, confession, bias, dynamite, presided, appearance of impropriety, shooting, recuse, kill, disqualify, presumed, impartial, reasonable person, attempted murder, extrajudicial, conspiracy, sentence, personal knowledge, impartiality, explosive, apartment, blow, sentencing proceeding, evidence presented, common law rule, state of mind

COUNSEL: Michael R. Braudes, Asst. Public Defender (Alan H. Murrell, Public Defender, on brief), Baltimore, for petitioner.

   Richard B. Rosenblatt, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for respondent.

JUDGES: Murphy, C.J., Eldridge, Cole, Rodowsky, McAuliffe and Adkins, * JJ., and Charles E. Orth, Jr., Associate Judge of the Court of Appeals of Maryland, retired, specially assigned.

* 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: [*71] [**2] The question presented is whether the trial judge erred in refusing to recuse himself.  The facts involve successive [*72] court trials of codefendants by the same judge.  We find no error in the denial of the motion for recusal.

   On 2 July 1987, Michael Boyd was shot to death in the parking lot of his apartment complex in Anne Arundel County.  Four persons were accused [***2] of complicity in the murder, and of having unsuccessfully attempted to dynamite the victim's car several days earlier.  The petitioner, Jody Kathleen Boyd, was accused of employing others to kill her husband, and of aiding and abetting them in the endeavor.  Michael Gregory Woods was accused of actually shooting the victim, and Donald Dare was accused of being present and directly aiding Woods. James Hayes, a juvenile, was accused of aiding and abetting the murder.

   The plan to kill Michael Boyd, aptly described by the Court of Special Appeals as "one of the worst kept secrets in Anne Arundel County," n1 came to the attention of the police shortly after the murder. The four suspects were arrested, and each gave an incriminating statement.  Because the State's Attorney believed that the confession of each defendant was inadmissible against the other defendants, he secured separate indictments and did not attempt to consolidate the cases for trial.

n1 Boyd v. State, 79 Md.App. 53, 56, 555 A.2d 535 (1989).

[***3]

   All of the cases were assigned to Judge H. Chester Goudy, Jr. for trial. Woods came to trial first.  He waived his right to a jury trial, and was tried by Judge Goudy.  He was found guilty of first degree murder, attempted murder (as a result of the attempt to bomb the victim's car), conspiracy with Dare to dynamite the victim's car, and the use of a handgun in the commission of a felony.  This Court affirmed the convictions.  Woods v. State, 315 Md. 591, 556 A.2d 236 (1989).

   On the second day of Woods's three-day trial, Judge Goudy began hearing motions to suppress in the petitioner's case, and in Dare's case.  At the beginning of the hearing of the motions, both defendants orally moved to have Judge [*73] Goudy recuse himself, contending that his participation in Woods's trial precluded him from hearing the motions in the codefendants' cases. Judge Goudy denied the motions, declaring his confidence in his ability to fairly hear and determine the motions on their merits.  He stated that if the defendants wished to renew their motions for recusal in connection with their trials, he would consider [**3] those motions in light of facts existing at that[***4] time.

   Two weeks later, as petitioner's trial was about to begin, her attorneys renewed the motion for recusal. Judge Goudy suggested that petitioner should first elect whether she would be tried by a jury or by the court, on the basis that if she elected a jury trial, there would be no conceivable grounds for recusal. Petitioner declined to make an election until the judge ruled on her motion.  After considering additional proffers and arguments of counsel, Judge Goudy denied the motion for recusal. The petitioner then waived her right to be tried by jury, and the waiver was accepted by the court.  Judge Goudy declared a brief recess, and upon his return to the bench, announced that he had read all the cases on recusal given him by counsel and had re-evaluated his ability to try the case.  He then said he was convinced he "could use the proper test and be impartial in the matter."

   Petitioner was found guilty of murder in the first degree, attempted murder, and conspiring with Woods and Dare to dynamite her husband's car.  She was sentenced to life imprisonment without possibility of parole on the murder conviction, and was given concurrent life sentences on the remaining convictions. [***5] n2 She appealed to the Court of [*74] Special Appeals, and that Court affirmed the convictions.  Boyd v. State, 79 Md.App. 53, 555 A.2d 535 (1989). We granted certiorari to consider whether the trial judge erred in denying the request for recusal.

n2 The sentence of life without parole was later reduced to a life sentence by a sentence review panel.  Although petitioner has not raised the point, we note that the sentence of life imprisonment for the crime of attempting to dynamite a vehicle exceeds the statutory maximum of 20 years' imprisonment, Maryland Code (1957, 1987 Repl.Vol.) § 119 of Article 27, and is, therefore, an illegal sentence. We assume that this sentence will be corrected by the trial court after the case is remanded pursuant to our mandate.  See Maryland Rule 4-345(a).

   The traditional common law rule was that disqualification for bias or prejudice was not permitted.  Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 820, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986).[***6] Moreover, constitutionally based claims, suggesting that failure to disqualify may result in a denial of due process, are successful "only in the most extreme of cases." Id. at 821, 106 S.Ct. at 1585.

   Although the rigors of the common law rule have been relaxed, this Court has acknowledged that trial judges necessarily enjoy a broad range of discretion in ruling on motions for recusal when there is no constitutional or statutory disqualification.
 
There may be, and doubtless are, many circumstances in which a delicate sense of propriety would, and probably should, induce a judge to decline to sit in a given case and, upon his own motion or upon motion of either of the parties, remove the cause to another jurisdiction or request some other judge of the same jurisdiction to preside at the trial.  However, if the presiding judge, under such circumstances, refuses to do this, he is within his legal rights; and his action in that respect is not the subject of review.  Where the alleged disqualification does not amount to a constitutional or legal disqualification, the question is left to the enlightened conscience, delicacy of feeling, and [***7]sense of fairness possessed by the individual judge.  The long and honorable history of the judiciary of this state impels the belief that the decision of such questions can be safely left where the responsibility now reposes.  Judges are selected to be useful public servants, and no judge's view of the proprieties in such questions should be carried to such an extent as would [*75] result in the serious curtailment of his usefulness as a public officer.
 
Ex Parte Bowles, 164 Md. 318, 326, 165 A. 169 (1933).

   More recently, the rules of disqualification have been established by statute or by rule of court.  In the case before us, petitioner relies upon Canon 3C of the Maryland Code of Judicial Conduct, Maryland Rule 1231, which provides in pertinent part that:
 
[**4] (1) A judge should not participate in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:

   (a) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; . . .
 
In Doering v. Fader, 316 Md. 351, 558 A.2d 733 (1989),[***8] we held that the trial judge was not disqualified from hearing a sentencing proceeding in a capital punishment case simply because he had presided at an earlier trial and sentencing proceeding in the same case, and had formed and expressed an opinion concerning the propriety of a death sentence under the circumstances of that case.  We quoted from the leading Supreme Court case on the subject, as follows: 

   The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.
 
United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966). We acknowledged that there were occasions when information received by the trial judge would result in disqualification, 316 Md. at 357 n. 3, 558 A.2d 733, n3 but held that Doering was not such a case.

n3 We cited as examples of required disqualification: Santobello v. New York, 404 U.S. 257, 263, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971) (resentencing should be accomplished by a different judge when plea agreement has been violated and appropriate relief is specific performance of the agreement); Miller v. State, 272 Md. 249, 255, 322 A.2d 527 (1974) (same); Cornish v. State, 272 Md. 312, 321-22, 322 A.2d 880 (1974) (information that should not have been presented to the trial judge may sufficiently impair the judge's ability to be impartial so as to justify a mistrial in a non-jury proceeding).

[***9]

   [*76] The question involved before us differs somewhat from that presented by Doering.  We are here concerned with information acquired by the trial judge as a result of prior judicial proceedings involving codefendants, rather than information gained from a previous trial of the same defendant.  We conclude, however, that the answer in each case is the same.  The information was acquired during prior judicial proceedings, and is not, therefore, personal knowledge or bias requiring disqualification.

   As we pointed out in Doering, supra, the word "personal" as used in Canon 3C means knowledge acquired from extrajudicial sources.  Id. at 355-57, 558 A.2d 733. Federal courts, interpreting a statute similar in content to Canon 3C, n4 draw the same distinction.  In Craven v. United States, 22 F.2d 605, 607-08 (1st Cir.1927), the court said:
 
At most, then, the affidavit charges a 'bias and prejudice,' grounded on the evidence produced in open court at the first trial, and on nothing else.  We hold that such bias and prejudice (if these be appropriate terms for a well-grounded state of mind, [***10] [Berger v. United States] 255 U.S. [22,] 42, 41 S.Ct. [230,] 236, 65 L.Ed. 481) is not personal; that it is judicial.  "Personal" is in contrast with judicial; it characterizes an attitude of extra-judicial origin, derived non coram judice.  "Personal" characterizes clearly the prejudgment guarded against.  It is the significant word of the statute.  It is the duty of a real judge to acquire views from evidence.  The statute never contemplated crippling our courts by disqualifying a [*77] judge, solely on the basis of a bias (or state of mind, 255 U.S. [at] 42, 41 S.Ct. [at] 236, 65 L.Ed. 481) against wrongdoers, civil or criminal, acquired from evidence presented in the course of judicial proceedings before him.  Any other construction would make the statute an intolerable obstruction to the efficient [**5] conduct of judicial proceedings, now none too speedy or effective.
 
More recently, the United States Court of Appeals for the Ninth Circuit has said that "the alleged prejudice must result from an extrajudicial source" and "[p]arties cannot attack a judge's impartiality on the basis of information [***11]and beliefs acquired while acting in his or her judicial capacity." United States v. Monaco, 852 F.2d 1143, 1147 (9th Cir. 1988), cert. denied, 488 U.S. 1040, 109 S.Ct. 864, 102 L.Ed.2d 988 (1989), quoting from United States v. Studley, 783 F.2d 934, 939 (9th Cir.1986), and United States v. Frias-Ramirez, 670 F.2d 849, 853 n. 6 (9th Cir.), cert. denied, 459 U.S. 842, 103 S.Ct. 94, 74 L.Ed.2d 86 (1982). To the same effect, see United States v. Page, 828 F.2d 1476, 1481 (10th Cir.), cert. denied, 484 U.S. 989, 108 S.Ct. 510, 98 L.Ed.2d 508 (1987); First Alabama Bank of Montgomery v. Parsons Steel, 825 F.2d 1475, 1487 (11th Cir.1987), cert. denied, 484 U.S. 1060, 108 S.Ct. 1015, 98 L.Ed.2d 980 (1988); In re Cooper, 821 F.2d 833, 838-39 (1st Cir.1987); United States v. Ratcliff, 806 F.2d 1253, 1255 (5th Cir.1986), cert. denied, 481 U.S. 1004, 107 S.Ct. 1625, 95 L.Ed.2d 199,[***12] reh'g denied, 481 U.S. 1072, 107 S.Ct. 2470, 95 L.Ed.2d 878 (1987); United States v. Merkt, 794 F.2d 950, 960 (5th Cir.1986), cert. denied, 480 U.S. 946, 107 S.Ct. 1603, 94 L.Ed.2d 789 (1987); United States v. Haldeman, 559 F.2d 31, 132-34 (D.C.Cir.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977); United States v. Partin, 552 F.2d 621, 636-39 (5th Cir.1977); United States v. Patrick, 542 F.2d 381, 390 (7th Cir.1976); United States v. Bernstein, 533 F.2d 775, 784-85 (2d Cir.1976); United States v. Falcone, 505 F.2d 478, 485 (3d Cir.1974), cert. denied, 420 U.S. 955, 95 S.Ct. 1338, 43 L.Ed.2d 432 (1975); United States v. DiLorenzo, 429 F.2d 216, 220-21 (2d Cir.1970).

 n4 28 U.S.C. § 455 provides in pertinent part that:

   (a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

   (b) He shall also disqualify himself in the following circumstances:

   (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; . . .

[***13]

   [*78] As indicated previously, this Court has applied the distinction between personal and judicial information in interpreting and applying Canon 3C. Doering v. Fader, supra; State v. Calhoun, 306 Md. 692, 749, 511 A.2d 461 (1986). The Court of Special Appeals also has consistently pointed to the same distinction.  See Carey v. State, 43 Md.App. 246, 249, 405 A.2d 293 (1979), cert. denied, 445 U.S. 967, 100 S.Ct. 1660, 64 L.Ed.2d 244 (1980); Laws and Dorman v. State, 7 Md.App. 84, 87, 253 A.2d 780 (1969); Day v. State, 2 Md.App. 334, 337-38, 234 A.2d 894 (1967). A number of state courts have accepted the same analysis.  See the cases cited in Doering, 316 Md. at 356-57, 558 A.2d 733. In addition, see State v. Thompson, 150 Ariz. 554, 556-58, 724 P.2d 1223, 1225-27 (1986); In re Richard W., 91 Cal.App.3d 960, 968, 155 Cal.Rptr. 11, 17 (1979); People v. Neumann, 148 Ill.App.3d 362, 101 Ill.Dec. 899, 904, 499 N.E.2d 487, 492 (1986);[***14] Jones v. State, 416 N.E.2d 880, 881-82 (Ind.App. 1981).

   Although it is clear that information obtained by a judge in prior proceedings involving the same case is not "personal" knowledge within the meaning of Canon 3C, the question presented here is whether information gained from prior proceedings involving codefendants is also properly treated as "judicial" and not "personal" information.  We hold that it is.

   In Thanos v. Superintendent, 204 Md. 665, 667-68, 104 A.2d 926 (1954), we said:
 
This Court has recently stated that, in the absence of a constitutional or statutory provision to the contrary, the Judge who presided at the trial of a case which is reversed on appeal and remanded for a new trial is not disqualified to retry the case.  Board of Medical Examiners v. Steward, 203 Md. 574, 583, 102 A.2d 248, 252 [(1954)].  The principle se[e]ms sufficiently broad to cover the issue here raised and no convincing reason appears that would require a trial judge who had previously tried related cases involving different defendants to disqualify himself in petitioner's trial.
 
[*79] Similarly, [***15] the decision of the Court of Special Appeals in Carey v. State, supra, is on point.  In Carey, the defendants sought disqualification of the trial judge because, among other things, the judge had participated in earlier proceedings involving a codefendant. The intermediate appellate [**6] court found no error in the refusal of the trial judge to recuse himself, stating that:
 
Participation in prior legal proceedings involving related parties or issues is simply not grounds for a judge to recuse himself.
 
43 Md.App. at 249, 405 A.2d at 296.

   Decisions from other jurisdictions are in accord.  See, e.g., United States v. Monaco, supra, 852 F.2d at 1147 (knowledge obtained from judicial proceedings involving a codefendant does not require recusal); United States v. Phillips, supra, 664 F.2d at 1002-03 (motion for recusal may not ordinarily be predicated upon the judge's rulings in the same or a related case); United States v. Partin , 601 F.2d 1000, 1011 (9th Cir.1979), cert. denied, 446 U.S. 964, 100 S.Ct. 2939, 64 L.Ed.2d 822 (1980)[***16] (recusal not required where judge had presided at trials of all codefendants); United States v. Haldeman, supra, 559 F.2d at 132-33 (trial judge not disqualified because he presided over a series of criminal proceedings emanating from a single transaction); United States v. Mathis, 550 F.2d 180, 182 (4th Cir.1976), cert. denied, 429 U.S. 1107, 97 S.Ct. 1140, 51 L.Ed.2d 560 (1977) (that trial judge presided at trial of codefendant is not ground for disqualification); United States v. Bernstein, 533 F.2d 775, 784-85 (2d Cir.), cert. denied, 429 U.S. 998, 97 S.Ct. 523, 50 L.Ed.2d 608 (1976) (disqualification not required because judge received guilty pleas from codefendants); United States v. DiLorenzo, supra, 429 F.2d at 221 (same judge may preside at seriatim trials of coconspirators); United States v. Cook, 400 F.2d 877, 878 (4th Cir.1968), cert. denied, 393 U.S. 1100, 89 S.Ct. 898, 21 L.Ed.2d 792 (1969) (judge is presumed not to confuse evidence in one[***17] case with that in another); United States v. Myers, 381 F.2d 814, 817-18 (3d Cir.1967), cert. denied, 390 [*80] U.S. 973, 88 S.Ct. 1065, 19 L.Ed.2d 1185 (1968) (judge not disqualified from presiding at court trial by having received prior guilty plea from codefendants); State v. Thompson, supra, 150 Ariz. at 557, 724 P.2d at 1226 (no per se disqualification because judge presided over trial of codefendant); In re Richard W., supra, 91 Cal.App.3d at 968, 155 Cal.Rptr. at 17 (judge not disqualified because he heard the case of a codefendant); People v. Neumann, supra, 499 N.E.2d at 492 (trial judge not disqualified because he accepted guilty pleas from codefendants); Jones v. State, supra, 416 N.E.2d at 881-82 (judge not disqualified because he conducted court trial of codefendant).

   Our determination that Judge Goudy was not disqualified per se because he had presided at a codefendant's trial does not end our inquiry.  Boyd argues that Judge Goudy was in fact biased or prejudiced against[***18] her because of his earlier participation in the trial of Woods.  This is not, of course, an allegation of "personal misconduct" that would require the trial judge to permit another judge to decide the motion for recusal. See Surratt v. Prince George's County, 320 Md. 439, 466, 578 A.2d 745 (1990). With respect to a claim of actual prejudice made under these circumstances, it has been said that "[a] judge is presumed to be impartial," United States v. Sidener, 876 F.2d 1334, 1336 (7th Cir.1989); that "[a] judge is presumed not to confuse the evidence in one case with that in another," Dove v. Peyton, 343 F.2d 210, 214 (4th Cir.1965); and, that "judges are men [and women] of discernment, learned and experienced in the law and capable of evaluating the materiality of evidence," State v. Babb, 258 Md. 547, 550, 267 A.2d 190 (1970). As Blackstone put it, "the law will not suppose a possibility of bias or favour in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea." 3 W. Blackstone, Commentaries of Laws [***19]  of England 361 (1st ed. 1769).  Thus, where an allegation of actual bias or prejudice is made, the burden is upon the defendant to make [*81] that showing from the record.  Carey v. State, supra, 43 Md.App. at 248-49, 405 A.2d at 296.

   The defendant has not met her burden in this case.  The record discloses that the trial judge, after having been fully apprised of the concerns of the defendant, determined that he could set aside any judicially acquired information that was not [**7] admissible against the defendant, and decide her case fairly and impartially, solely upon the evidence presented in her case. We have examined the record of the earlier trial of Woods, as well as the record in the instant case.  We find nothing undermining either the general presumption that a trial judge can and will separate that which may be considered from that which may not, or which suggests that Judge Goudy failed to do so in this case, or was otherwise biased or prejudiced against the defendant by reason of his participation in Woods's case.  Unlike the case of In re George G., 64 Md.App. 70, 494 A.2d 247 (1985), in which a statement[***20] made by the trial judge that the defendant "might be able to prove that he is innocent" supported the defendant's contention of a lingering bias, there is nothing in the record of this case to suggest that Judge Goudy was influenced by the testimony given in the previous case, or by any findings he had made based upon that testimony.

   In the first trial, Woods was charged with murder, attempted murder (in connection with the attempt to dynamite the victim's automobile), conspiring with Donald Dare to dynamite the victim's car, and the use of a handgun in the commission of a felony.  The State called 16 witnesses to prove its case, including the detective who testified concerning the confession Woods had given. 

   In his confession, Woods admitted that after learning from Jody Boyd that her husband had been beating her and she "couldn't take it anymore," he agreed "to take care of her husband for her." Woods said that he, James Hayes, and Donald Dare agreed "to take care of this." He admitted that he had tried on two occasions to "blow up" the [*82] victim in his car, and failing in those efforts, had lain in wait for the victim and shot him on the evening of 2 July 1987.  He said he[***21] knew the victim would be in the parking lot at the time because Jody Boyd "was agreeing to send her husband out to Hardee's on this particular evening . . . ." The gun used to kill the victim was recovered from Woods's home.

   James Hayes, who had agreed to testify for the State in return for the State's agreement that he would be tried as a juvenile, testified against Woods. Hayes testified to an attempt by Woods and Dare to blow up the victim's car, and said that Jody Boyd had given Woods a roll of black speaker wire before that attempt was made.  Hayes said he drove Woods and Dare to the immediate vicinity of the victim's apartment on the night of the shooting. He said Dare had the pistol at first; Dare and Woods went through a wooded area to the apartment while Hayes waited in the car; Dare thereafter ran back, stating that Woods had shot the victim; and, Woods ran back shortly thereafter, carrying the gun.

   Shirley Ann Rutherford testified in Woods's case that she had overheard Jody Boyd tell Michael Woods and another that "she wished they'd kill him and get it over with," and that Woods had replied, "we'll kill him -- we'll get him."

   Michelle Madden testified that before the [***22] shooting she had heard Jody Boyd complain on more than one occasion that she wanted to get rid of her husband.  She testified petitioner said she wanted to put a hole in the brake fluid line of her husband's car, and had asked Woods if he knew how to do that.

   Woods did not take the stand, or call any witnesses.  His arguments were essentially as follows: his confession was not adequately corroborated; the testimony of Hayes, an accomplice, was not corroborated; the conspiracy, if any, took place in a different county; the "quarter stick" of explosives allegedly used was not dynamite; and, he could not be convicted of attempted murder because it was impossible [*83] for a "quarter stick" of explosives attached to a car to kill anyone.  Judge Goudy found Woods guilty on all counts.

   It is immediately apparent that Judge Goudy was not confronted with any significant question bearing on the credibility of the witnesses testifying at the Woods trial.  No testimony was offered to contradict the State's witnesses. Woods challenged the admissibility of his confession, but the confession [**8]was admitted and was supported by independent evidence of the corpus delicti.  That, coupled with[***23] the other unrebutted evidence against Woods, clearly forecast the result which ensued.

   Judge Goudy was not required to find that Jody Boyd had procured the death of her husband in order to find Woods guilty of murder. Nor, contrary to the argument advanced here, was Judge Goudy required to find that Jody Boyd was a conspirator in order to find Woods guilty of conspiracy. Woods was charged only with having conspired with Dare, not with Jody Boyd.

   Most of the testimony presented at Woods's trial was also presented at petitioner's trial.  In addition, petitioner's statement to the police was admitted.  In her statement, she admitted speaking with Michael Woods about killing her husband.  She said she had complained to Woods about physical abuse she was receiving from her husband.  She admitted giving Woods a "stereo cable cord," but said she did not know what he intended to do with it.  She admitted that "Mike [Woods] said he was going to do something but he didn't say when," and that Woods and Dare had discussed with her and a friend, Laura Dilley, the amount to be paid to Mike Woods.  She said Woods told her of two attempts to blow up her husband's car, and that he was "going to [***24] try something different." She said Woods called her on the night of the shooting and asked if there was any way she could get her husband out of the apartment, and she replied "he's going out to Hardee's to get us cheeseburgers around 10:00." She explained she thought Woods "just wanted to come over and talk." She said her husband [*84] left at 9:46 p.m. and she was told of the shooting at 10:05 p.m. Although at one point in her statement she said her first remark to Woods about killing her husband was given "in a laughing manner," she later said she agreed to pay Woods $1,800 for the murder, and that it was her idea to have her husband killed.  She explained that her husband had "raped me three times in the past three months" and had "beat on me and the children for the past year."

   Petitioner did not testify.  She presented testimony from Laura Dilley about a bruise the witness had observed on petitioner's face.  She proffered evidence from Ms. Dilley and other witnesses concerning bruises she and her children had displayed, and concerning complaints with respect to abusive conduct visited upon her and the children by her husband.  She also proffered the testimony of psychologists[***25] that she was suffering from "battered wife's syndrome."

   Judge Goudy held that the proffered testimony was insufficient to generate an issue of perfect or imperfect self-defense, and the defendant conceded that the evidence was insufficient to generate an issue of lack of criminal responsibility.  The proffered testimony was, therefore, not introduced, and the defendant rested.  The defendant argued that: 1) the evidence was insufficient to show that dynamite had been used; 2) the evidence did not show that the car to which the explosive was affixed belonged to the victim; and, 3) petitioner could not be convicted of murder because the evidence did not show that she was actually or constructively present at the scene of the murder. n5

n5 The State pointed out that an accessory before the fact to murder may be indicted and convicted of murder in the first degree.  Evans v. State, 304 Md. 487, 533, 499 A.2d 1261 (1985). The State also argued that the evidence was sufficient to support a finding that the petitioner was a principal in the second degree to the murder.

[***26]

   The evidence before Judge Goudy was compelling on the question of the petitioner's guilt in the three offenses for which she was convicted.  Virtually all of the evidence that had been before Judge Goudy in Woods's trial was again [*85] before him in petitioner's trial, and it was again unrebutted.  The single important exception was Woods's confession, which Judge Goudy considered in Woods's case, but which was not before him in petitioner's case.

   We have already noted that the knowledge of Woods's confession, acquired by the judge in a prior judicial proceeding, is not, per se, a reason for disqualification. [**9] In an analogous situation, this Court has held that a trial judge sitting without a jury is not disqualified by having learned the details of a confession which he ruled inadmissible.  In State v. Hutchinson, 260 Md. 227, 271 A.2d 641 (1970), we said:
 
[A]though opinion may have been to the contrary elsewhere, [footnote omitted] it is clear that we have consistently reposed our confidence in a trial judge's ability to rule on questions of admissibility of evidence and to then assume the role of trier of fact without having carried over[***27] to his factual deliberations a prejudice on the matters contained in the evidence which he may have excluded.
 
Id. at 236, 271 A.2d 641. We have also noted Judge Goudy's statement that he was confident of his ability to disregard evidence not admissible in the petitioner's case.

   We reviewed the records of both trials in an effort to determine whether, under the circumstances of this case, there may have been some practical limitation on the ability of the judge to do that which he is ordinarily presumed competent to do.  We find no such impediment.  Nor do we find any statement of the judge which would remotely suggest that he was unable to, or did not, consider Jody Boyd's case in a fair and impartial manner, uninfluenced by the prior proceedings or the judgment in Woods's case.

   Finally, petitioner argues that even if there was no actual impropriety in Judge Goudy hearing the successive trials of codefendants, he should have declined to do so to avoid the appearance of impropriety. It is, of course, important that the judicial process not only be fair, but that [*86] it appear to be fair.  The proper test for disqualification on the basis of [***28]an appearance of impropriety is well stated by the United States Court of Appeals for the Second Circuit:
 
[T]he test to be applied is an objective one which assumes that a reasonable person knows and understands all the relevant facts.  [citations omitted.] We disagree with our dissenting colleague's statement that recusal based on an appearance of impropriety . . . 'requires us to judge the situation from the viewpoint of the reasonable person, and not from a purely legalistic perspective.' Like all legal issues, judges determine appearance of impropriety -- not by considering what a straw poll of the only partly informed man-in-the-street would show -- but by examining the record facts and the law, and then deciding whether a reasonable person knowing and understanding all the relevant facts would recuse the judge.  (Emphasis in original).
 
In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1313 (2d Cir.1988), cert. denied, 490 U.S. 1102, 109 S.Ct. 2458, 104 L.Ed.2d 1012 (1989). Applying that test to the facts of this case, it is clear that disqualification was not required to avoid even the appearance of[***29] impropriety.

   JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED, WITH COSTS. 

ERIC JAMES WALLACE v. STATE OF MARYLAND 
No. 88, September Term, 1990
 
Court of Appeals of Maryland
 
320 Md. 693; 579 A.2d 1184; 1990 Md. LEXIS 154

 October  1, 1990, Filed

   PRIOR HISTORY: [*1]  
 
Certiorari to Court of Special Appeals; Circuit Court for  Anne Arundel  County; Robert S. Heller, Jr. JUDGE.

COUNSEL: SUBMITTED BY Michael R. Malloy, Assistant Public Defender (Alan H. Murrell, Public Defender, both of Baltimore, Maryland, FOR PETITIONER.

   SUBMITTED BY Mary Ellen Barbera, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, both of Baltimore, Maryland, FOR RESPONDENT.

JUDGES: Submitted to: Robert C. Murphy, C.J., Eldridge, Cole, Rodowsky, McAuliffe, Chasanow, JJ.

OPINIONBY: PER CURIAM ORDER

OPINION: PER CURIAM ORDER

   The Court having considered and granted the petition for a writ of certiorari in the above captioned case, it is this 1st day of October, 1990

   ORDERED, by the Court of Appeals of Maryland, that the judgment of the Court of Special Appeals be, and it is hereby, reversed in part and the case is remanded to that court with instructions to vacate the conviction of distribution of marijuana. See State v. Owens,    Md.   ,    2.d    (1990), No. 56, September Term, 1988, filed September 26, 1990. Costs in the Court of Special Appeals to be paid one-half by the Petitioner and one-half by Anne Arundel County. Costs in this Court to be paid by Anne Arundel County. 

WILLIAM WILLIS SCHRIEFER v. STATE OF MARYLAND 
No. 89, September Term, 1990
 
Court of Appeals of Maryland
 
320 Md. 694; 579 A.2d 1184; 1990 Md. LEXIS 157

 October  1, 1990, Filed

   PRIOR HISTORY: [*1]  
 
Certiorari to Court of Special Appeals; Circuit Court for  Anne Arundel  County; Eugene M. Lerner, Judge.

COUNSEL: Submitted by Michael R. Malloy, Assistant Public Defender (Alan H. Murrell, Public Defender, both of Baltimore, Maryland, for Petitioner.

   Submitted by Gwynn X. Kinsey, Jr., Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, both of Baltimore, Maryland, for Respondent.

JUDGES: Robert C. Murphy, C.J., Eldridge, Cole, Rodowsky, McAuliffe, Chasanow, JJ.

OPINIONBY: PER CURIAM

OPINION: PER CURIAM ORDER

   The Court having considered and granted the petition for a writ of certiorari in the above captioned case, it is this 1st day of October, 1990

   ORDERED, by the Court of Appeals of Maryland, that the judgment of the Court of Special Appeals be, and it is hereby, reversed in part and the case is remanded to that court with instructions to vacate the conviction of possession with intent to distribute marijuana. See State v. Owens,    Md.   ,    A.2d    (1990), No. 56, September Term, 1988, filed September 26, 1990. Costs in the Court of Special Appeals to be paid one-half by the Petitioner and one-half by Anne Arundel County. Costs in this Court to be paid by Anne Arundel County. 

STATE of Maryland v. Steven Chris OWENS 
No. 56, September Term, 1988
 
Court of Appeals of Maryland
 
320 Md. 682; 579 A.2d 766; 1990 Md. LEXIS 150

 September  26, 1990

   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 IN PART AND REVERSED IN PART; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO AFFIRM THE CONVICTIONS OF CONSPIRACY AND OF DISTRIBUTION OF PCP, AND TO VACATE THE CONVICTION FOR DISTRIBUTION OF MARIHUANA; COSTS IN THE COURT OF SPECIAL APPEALS TO BE DIVIDED EQUALLY BETWEEN RESPONDENT AND ANNE ARUNDEL COUNTY; COSTS IN THIS COURT TO BE PAID BY ANNE ARUNDEL COUNTY.

CORE TERMS:  marihuana, heroin, morphine, spectrum, legislative intent, simultaneous, manufacture, loveboat, sentence, cocaine, bag, phencyclidine, imprisonment, classified, carrying, felony, dealers, fine, mechanically, separately, chemically, envelopes, capsules, tighter, embrace, mixed, Maryland Controlled Dangerous Substances Act, possession of heroin, clear legislative, narcotic drug

COUNSEL: Cathleen C. Brockmeyer, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for petitioner.

   Victoria S. Keating, Asst. Public Defender (Alan H. Murrell, Public Defender, both on brief), Baltimore, for respondent.

JUDGES: Murphy, C.J., and Eldridge, Cole, Rodowsky, McAuliffe, Adkins * and Blackwell, ** JJ.  Cole, J., dissents.

* Adkins, 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.

** Blackwell, 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 of this opinion.

[***2]

OPINIONBY: McAULIFFE

OPINION: [*684] [**766] In this case, we must decide whether an individual found to have distributed marihuana coated with phencyclidine (PCP) is subject to separate conviction and punishment for distribution of each of two controlled dangerous substances.

   Respondent, Steven Chris Owens, was charged with distribution of PCP, distribution of marihuana, and conspiracy to violate the controlled dangerous substance law.  At trial, an undercover Anne Arundel County police officer testified that on 18 August 1986, Owens aided Jeffrey Dan Ray in the sale of "loveboat" in the Woodland Beach area of Anne Arundel County.  Loveboat is the street name for marihuana laced with PCP.

   A jury sitting in the Circuit Court for Anne Arundel County found Owens guilty of all three charges.  The trial judge sentenced [**767] Owens to four years imprisonment on each count, all to run concurrently.  Owens appealed and the Court of Special Appeals, in an unreported opinion, affirmed Owens's convictions for distribution of marihuana and for conspiracy but vacated the conviction for distribution of PCP by merging it into the marihuana distribution conviction.  We granted the State's petition for certiorari.

   The State contends[***3] that loveboat consists of two different controlled dangerous substances that are subject to two different penalties. The State maintains that the legislature, in enacting Article 27, § 286, intended to permit multiple prosecutions for simultaneous distribution of controlled substances listed under different schedules.  Alternatively, the State argues that if there must be a merger, the offense carrying the lesser penalty (distribution of marihuana) should merge into the greater offense (distribution of PCP).

   Respondent contends that because he performed only one act of distribution, he should be subject to only one conviction for distribution.  He also argues that when two controlled dangerous substances are combined in such a way that they can never again be divided into two separate [*685] substances, a single distribution of the resulting product cannot support multiple convictions.

   Maryland Code (1957, 1987 Repl.Vol., 1989 Cum.Supp.) Article 27, § 286(a) of the Maryland Controlled Dangerous Substances Act prohibits the manufacture, distribution or possession of any controlled dangerous substance.  The statute provides in pertinent part:
(a) Except as authorized by this [Act], [***4] it is unlawful for any person: (1) [t]o manufacture, distribute, or dispense, or to possess a controlled dangerous substance in sufficient quantity to reasonably indicate under all circumstances an intent to manufacture, distribute, or dispense, a controlled dangerous substance . . . .
The penalty subsection provides:
(b) Any person who violates any of the provisions of subsection (a) with respect to:
 
   (1) A substance classified in Schedules I or II which is a narcotic drug is guilty of a felony and is subject to imprisonment for not more than 20 years, or a fine of not more than $25,000, or both.

   (2) Phencyclidine . . . is guilty of a felony and is subject to imprisonment for not more than 20 years, or a fine of not more than $20,000, or both.

   (3) Any other controlled dangerous substance classified in Schedule I, II, III, IV, or V shall, upon conviction, be deemed guilty of a felony and sentenced to a term of imprisonment for not more than 5 years or a fine of not more than $15,000, or both.

   The Act establishes a classification of controlled dangerous substances into five separate schedules based upon the potential for abuse of a drug, the degree of psychic or physical dependence[***5] associated with the drug, and the drug's acceptability for medical use.  See Cunningham v. State, 318 Md. 182, 567 A.2d 126 (1989). Marihuana is listed in Schedule I and PCP is listed in Schedule II.  Neither is classified as a narcotic drug. "Loveboat" is not separately listed on any schedule.

   [*686] Our task is to determine the legislative intent in this case, and thus the appropriate unit of prosecution.  We faced a similar problem in Randall Book Corp. v. State, 316 Md. 315, 558 A.2d 715 (1989), where we said:

   The multiple sentence-single statute problems, with which we are concerned here, embrace a wide range of factual situations and statutory provisions.  The key, of course, is legislative intent. 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.' United States v. Universal Corp., 344 U.S. 218, 221, 73 S.Ct. 227, 229, 97 L.Ed. 260 (1952).
Id. at 324, 558 A.2d 715.  The [***6] variety of factual situations involving simultaneous [**768] possession of two or more controlled dangerous substances necessarily embrace a wide spectrum. At one end of the spectrum is the defendant found with a brick of marihuana and a separate one-pound bag of cocaine in the trunk of his car.  Although the possession of each substance is simultaneous, each substance is separate and the possession of each clearly constitutes a separate offense.

   At the other end of the spectrum is the defendant found in possession of heroin, who the State seeks to charge with separate counts of possession of heroin and possession of morphine. The theory of such a prosecution would be that heroin is derived from morphine, and heroin continues to contain molecules of morphine even after it is compounded into heroin. One who possesses heroin, therefore, also possesses morphine. Assuming the scientific validity of this proposition, we think it clear that the legislature did not intend separate prosecutions and punishments for possession of the heroin and possession of the morphine contained within it.

   Due to the misdirected ingenuity of many persons who deal in the manufacture, distribution, and use of controlled[***7] dangerous substances, one may be certain that there will be [*687] any number of combinations falling at various places along the spectrum just described.  We addressed one such instance in Cunningham v. State, supra, 318 Md. 182, 567 A.2d 126. The instant case presents another.

   In Cunningham, the defendant possessed, within a single bag, quantities of heroin and cocaine. The two substances were not, however, mixed or compounded in such a way that they could not be readily separated.  The heroin was contained in five plastic envelopes; the cocaine was in 15 separate capsules. The two substances were mixed only in the sense that the envelopes and the capsules were in the same bag. Noting that the history of controlled drug legislation in this State, and indeed in this country, has been "to turn the screw of the criminal machinery . . . tighter and tighter," 318 Md. at 189, 567 A.2d 126, quoting Albernaz v. United States, 450 U.S. 333, 343, 101 S.Ct. 1137, 1144, 67 L.Ed.2d 275 (1981), this Court held that the legislature intended the possibility of separate punishment for[***8] the simultaneous possession of controlled dangerous substances under those circumstances.  The Court noted, however, that: 
[w]e do not here decide whether a defendant may be given separate sentences for controlled dangerous substances that have been mechanically or chemically combined in such manner that at the time of possession it is not possible, in any practical sense, to separate them.
318 Md. at 188 n. 2, 567 A.2d 126.

   The instant case involves marihuana that has been "laced" with phencyclidine (PCP) -- that is, the marihuana has been dipped into, or sprayed with, PCP. Although this process does not involve chemical changes in either of the substances used, it mechanically binds the two together in a way that renders it impossible, in any practical sense, to separate them.  This fact places this case more toward the end of the spectrum involving a controlled substance or compound that chemically contains another controlled dangerous substance, e.g., heroin containing molecules of morphine, than toward the other end represented by separate [*688] controlled dangerous substances separately packaged and available for separate sale, distribution, [***9] or use.

   An analogy may be drawn to the making of a martini by mixing together gin and vermouth, two alcoholic beverages.  Maryland Code (1957, 1987 Repl.Vol., 1989 Cum.Supp.) Article 27, § 400A makes it a civil offense for "any person under the age of 21 years to have in his possession . . . any alcoholic beverage . . . ." Surely, if a person under 21 is detected drinking a martini, he is not guilty of two offenses.

   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.

   We held, in State v. Jenkins, 307 Md. 501, 521, 515 A.2d 465 (1986), that "where [**769] there is merger by legislative intent, the offense carrying the lesser maximum penalty merges into the offense carrying the greater penalty." Accordingly, the conviction and sentence for distribution of PCP must be reinstated, and the conviction for distribution of marihuana vacated.

   JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED IN PART AND REVERSED IN PART; CASE REMANDED TO THAT [***10] COURT WITH INSTRUCTIONS TO AFFIRM THE CONVICTIONS OF CONSPIRACY AND OF DISTRIBUTION OF PCP, AND TO VACATE THE CONVICTION FOR DISTRIBUTION OF MARIHUANA; COSTS IN THE COURT OF SPECIAL APPEALS TO BE DIVIDED EQUALLY BETWEEN RESPONDENT AND ANNE ARUNDEL COUNTY; COSTS IN THIS COURT TO BE PAID BY ANNE ARUNDEL COUNTY.

DISSENTBY: COLE

DISSENT: COLE, Judge, dissenting.

   To me, the majority's decision sets a very dangerous precedent.  Throughout the state, drug dealers can feel safe in the knowledge that all they must do to avoid [*689] conviction on several counts of possession or distribution of controlled dangerous substances is dump all their "wares" into one container before being apprehended by the police.  This is clearly not the message we should be sending to those in the drug community.  Drugs in today's society are a deadly and pervasive problem.  Drug distributors are the root of that problem. A rule that is even the slightest bit lenient in favor of drug dealers is completely incongruous with the heinousness of their acts.

   Such a soft approach is also incongruous with the clear legislative intent to punish drug distributors heavily.  A quick glance at the harsh sentences provided for in the penalty[***11] section of Article 27, section 286 of the Maryland Controlled Dangerous Substances Act reveals that intent.  Combining two dangerous drugs into one even more lethal combination should not enable drug dealers to avoid extra punishment.  Nor should this Court circumvent the clear legislative mandate.  Owens should have been convicted for both distribution of PCP and of marijuana (as well as for the conspiracy charge).  Therefore, I dissent. 

BOARD OF SUPERVISORS OF ELECTIONS OF ANNE ARUNDEL COUNTY, etal. v. RAYBURN H. SMALLWOOD, et al. 
No. 71, September Term, 1990
 
Court of Appeals of Maryland
 
327 Md. 220; 608 A.2d 1222; 1990 Md. LEXIS 144

 September  20, 1990, 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.

CORE TERMS:  property tax, tax year, property tax revenues, board of supervisors, general election, general law, election, commencing, declare, voters

COUNSEL: ARGUED BY John R. Greiber, Jr. (Messinger & Greiber, both on brief) both of Annapolis, Maryland, for Petitioners.

   AMICUS CURIAE: Diana G. Motz and Frank, Bernstein, Conaway & Goldman of Baltimore, Maryland, for Talbot County Taxpayers' Association and the Tax Reform Initiative by Marylanders.

   ARGUED BY Roger D. Redden (Kurt J. Fischer, both at Baltimore, Maryland), both on brief; ARGUED BY: David A. Plymyer, Deputy County Attorney (Stephen R. Beard, County Attorney, both of Annapolis) both on brief, RESPONDENTS.

JUDGES: Murphy, C.J., John C. Eldridge, Senior Judge, Cole, Rodowsky, McAuliffe, Chasanow, Orth, Charles E., Jr., (retired, specially assigned), JJ.

OPINIONBY: ELDRIDGE

OPINION: [*224] 

   ORDER

   The Circuit Court for Anne Arundel County, by order of August 30, 1990, declared that the two proposed amendments to the Charter of Anne Arundel County known as the Ballot Initiative amendment and the Property Tax Limitation amendment violation "public general law and are unconstitutional and void under Article XI-A of the constitution of Maryland." [**2] The circuit court'sAugust 30, 1990, order also enjoined the Defendant Board of Supervisors of Elections of Anne Arundel County from placing the two proposed amendments on the ballot to be presented to the voters of Anne Arundel County at the general election to be held on November 6, 1990.

   For reasons to be stated in an opinion later to be filed, it is this 20th day of September, 1990,

   ORDERED, by the Court of Appeals of Maryland, that the part of the judgment of the Circuit Court for Anne Arundel County relating to the Ballot Initiative amendment is affirmed; and it is further

   ORDERED, by the Court of Appeals of Maryland, a majority of the Court concurring, that the part of the judgment of the Circuit Court for Anne Arundel County relating to the Property Tax Limitation amendment is reversed; and it is further

   ORDERED, by the Court of Appeals of Maryland, a majority of the Court concurring, that the case be remanded to the Circuit Court for Anne Arundel County with directions to declare that certain provisions of the Property Tax Limitation amendment, namely the so-called "rollback" to the 1988-1989 tax year and subparagraph [b], are invalid and severable, and to declare that the [**3]Property Tax Limitationamendment is otherwise, facially, not in conflict either with public general law or with Article XI-A of the Constitution of Maryland; and it is further

   ORDERED, by the Court of Appeals of Maryland, a majority of the Court concurring, that the circuit court order that the Defendant Board of Supervisors of Elections [*225] of Anne Arundel County submit to the voters of Anne Arundel County at the general election to be held on November 6, 1990, in accordance with the provisions of Article XI-A of the Constitution of Maryland and Maryland Code (1957, 1986 Repl. Vol.), Article 33, the Property Tax Limitation amendment in the following form:

    "PROPOSED AMENDMENT TO ANNE ARUNDEL COUNTY CHARTER PROPERTY TAX LIMITATION
 
"Article VII. Budgetary and Fiscal Procedures "Sec. 710. Reproduction of budget: effective date; tax levy; appropriations [after existing text, add the following new numbered paragraph (d)]"[d] Property Tax

   (1) Notwithstanding any other provisions of this article, commencing on 1 July 1991 (tax year 1991-92), the County Council may not establishproperty tax rates which would provide more property tax revenues than were raised during the 1990-91[**4] tax year, except as provided in subparagraph [a] 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 1991, 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 for other widely accepted index that measures from time to time the rate of inflation), or (2) by 4.5 percent, whicheveris the lesser amount."
 
Costs to be paid by Anne Arundel County. Appellants' request for attorneys' fees [**5] denied. Mandate to issue forthwith. 

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; 1990 Md. LEXIS 206
 
   September  20, 1990, Filed

   SUBSEQUENT HISTORY: [***1] Reported at 327 Md. 220, at 226.

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:  property tax, tax year, proposed amendment, general election, State Board of Election Laws, realized, invalid, ballot, voters

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 Baltimore County.

JUDGES:  
Murphy, C.J., Eldridge, Cole, [***2] * Rodowsky, McAuliffe and Chasanow, JJ., and Charles E. Orth, Jr., Judge of the Court of Appeals (retired), Specially Assigned. 

 * 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: [*226] [**1226]

   ORDER

   The Circuit Court for Baltimore County, by order of September 4, 1990, determined that the proposed amendment to the Charter of Baltimore County establishing a limit on property taxes violated Article XI-A of the Constitution of Maryland and certain provisions of the Annotated Code of Maryland.  The circuit court ruled that the proposed property tax limitation amendment "cannot remain on the ballot for referendum vote at the general election on November 6, 1990." The circuit court's order also enjoined the defendants, Board of Supervisors of Elections of Baltimore County and State Board of Election Laws, from keeping, after October 5, 1990, the proposed amendment on the ballot to be presented to the voters of Baltimore County at the general election to be held [***3]on November 6, 1990.

   For reasons to be stated in an opinion later to be filed, the Court of Appeals, a majority of the Court concurring, has determined that certain provisions of the property tax limitation amendment, namely the so-called "rollback" and subparagraph (d)(2), are invalid and severable, and that the property tax limitation amendment is otherwise, facially, not in conflict either with public general law or with Article XI-A of the Constitution of Maryland.

   It is this 20th day of September, 1990,

   ORDERED, by the Court of Appeals of Maryland, a majority of the Court concurring, that the injunctive order of the Circuit Court for Baltimore County is reversed; and it is further

   ORDERED, by the Court of Appeals of Maryland, a majority of the Court concurring, that the case be remanded [*227] to the Circuit Court for Baltimore County with directions to order that the defendants, Board of Supervisors of Elections of Baltimore County and State Board of Election Laws, submit to the voters of Baltimore County at the general election to be held on November 6, 1990, in accordance with the provisions of Article XI-A of the Constitution of Maryland and Maryland Code (1957, 1986 Repl.Vol.), [***4] Article 33, the proposed amendment in the following form:

   "BALTIMORE COUNTY -- PEOPLE'S PETITION TO LIMIT PROPERTY TAXES
 
"Purpose of Amendment To limit the property tax so that property tax revenues will not exceed those revenues realized by the County for the 1990-1991 tax year, except as provided in subparagraph (1) of the Amendment.
 
"Proposed Amendment In accordance with Article XI-A of the Maryland Constitution, Article VII, entitled Budgetary and Fiscal Procedure of the Charter of Baltimore County is hereby amended as follows:

   "After Section 710(c), add the following:

   "(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 1990-1991 except as provided in subparagraph (1) herein:

   "(1) For the tax year 1991-1992, and for succeeding years the County property tax may be increased, but by no more than 2 percent per year.

   "(2) 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 [***5] approved by the voters prior to the time this section becomes effective.

   "(3) If any paragraph, part, clause or phrase hereof is for any reason held to be invalid or unconstitutional, the [*228] remaining portions of the law shall not be affected but will remain in full force and effect."
 
Costs to be paid by Baltimore County.  Mandate to issue forthwith. 

Barry DeWayne BROOKS v. STATE of Maryland 
No. 160, September Term, 1989
 
Court of Appeals of Maryland
 
320 Md. 516; 578 A.2d 783; 1990 Md. LEXIS 135

 September  6, 1990

   SUBSEQUENT HISTORY: [***1]

   Motion for Reconsideration Denied October 9, 1990.

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 THE CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR A NEW TRIAL.  COSTS IN THE COURT OF SPECIAL APPEALS AND IN THIS COURT TO BE PAID BY ANNE ARUNDEL COUNTY.

CORE TERMS:  informer, detective, disclosure, seller, balancing test, narcotic, tipster, nondisclosure, cocaine, compel disclosure, photograph, illegal transaction, testifying officer, innocence, helpful, guilt, motion to compel, pretrial hearing, housing project, misidentification, intermediate, unmarked, sitting, motion to disclose, mistaken identity, public interest, denied sub nom, materiality, entrapment, accurately

COUNSEL: Gary S. Offutt, Asst. Public Defender (Alan H. Murrell, Public Defender, both on brief) Baltimore, for petitioner.

   Kreg Paul Greer, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief) Baltimore, for respondent.

JUDGES: Murphy, C.J., and Eldridge, Cole, Rodowsky, McAuliffe and Chasanow, JJ.

OPINIONBY: MURPHY

OPINION: [*518] [**784] At a jury trial in the Circuit Court for Anne Arundel County (Wolff, J.), Barry DeWayne Brooks was convicted of distribution of cocaine and sentenced to eighteen months' imprisonment.  The Court of Special Appeals affirmed the judgment in an unreported opinion.  We granted certiorari to determine whether, at a pretrial hearing, the court (Thieme, J.) erred in denying Brooks's motion to compel disclosure of the State's informer.
 
   I.

   On March 4, 1988, Detectives[***2] Foote and Young of the Anne Arundel County Police Department were conducting an undercover operation in the Bywater community, a housing project in Annapolis.  They drove into the area in an unmarked vehicle, accompanied by an informer, and bought cocaine from an individual while seated in their car.  On [*519] May 25, 1988, almost two months after the transaction, Brooks was arrested as the criminal agent and charged with distribution, possession with intent to distribute, and simple possession of cocaine.

   Prior to trial, Brooks moved to compel disclosure of the informer. He proffered to show that he had been misidentified as the seller and that the informer was a crucial witness to negate any police testimony [**785] to the contrary.  The State conceded that the informer was present throughout the transaction and that he introduced the seller to the detectives. It maintained, however, that the State's privilege to conceal the identity of informers was applicable because the informer was not an integral part of the transaction.

   The court rejected Brooks's proffer and denied the motion.  It ruled that disclosure is not required if the informer is a mere tipster so that, even if he accepted[***3] Brooks's proffer, "the only thing I've heard is that at most [the informer] was a tipster."

   At trial, Detective Foote testified that, prior to March 4, 1988, he had "received numerous names" of individuals, including Brooks, who were suspected of dealing narcotics. He also testified that, on the day of the sale, Detective Young was driving the unmarked vehicle, the informer was sitting in the front passenger seat, and Detective Foote was sitting in the back seat, behind the informer. Detective Young stopped the vehicle so that the driver's side was next to the passenger's side of an already-parked white Chevrolet Nova.  A tall, light-skinned black man was exiting the passenger side of the Nova.  The informer knew him.  Detective Young rolled down his window and the informer said, "Hey, Barry, can I holler at you for a minute?" The man came over to Detective Young's window and discussed with Young the type and quantity of narcotic he was seeking.  The man thereafter said he would return.  He walked towards the housing project and returned in five minutes, getting into the back seat of the car behind Detective Young and exchanging money for a package of what [*520] later was tested[***4] to be cocaine. He told the detectives to come to a housing project in the Newtown area, near Bywater, if they wanted more cocaine. He then left the vehicle.  According to Detective Foote, at no time did the seller stand next to the passenger's side of the unmarked car, where the informer was sitting.

   Detective Young gave a substantially similar version of the transaction. However, contrary to Detective Foote's testimony, Detective Young said that it was the informer, not he, who initiated discussion about purchasing narcotics.

   Neither detective had met Brooks before the day in question, and the police report written the day after the transaction only identified Brooks by height and weight.  Detective Foote testified that he had seen Brooks on approximately four prior occasions, always in the Newtown area.  He remembered seeing him once alone, twice in a crowd of mostly "dark-skinned, black males," and once driving a white Chevrolet. n1 On none of these occasions did Detective Foote approach him.  The detective also testified that he had seen a photograph of Brooks prior to the day of the unlawful transaction, but that his identification of Brooks at trial was based on the transaction. [***5] 

n1 Although not entirely clear from the transcript, this white Chevrolet apparently was not the white Chevrolet Nova from which the seller exited on March 4.

   Detective Young testified that he had seen Brooks on about five occasions before March 4, 1988, but that he could not have described Brooks's weight or any identifying characteristics before the day of the transaction; he had known only that Brooks was a tall, light-skinned black man.  Detective Young had run a check on the license plate of the Chevrolet that they had seen driven by an individual thought to be Brooks, and learned that Brooks owned the vehicle.  The detective did not run a similar check on the license plate of the white Nova which was observed on March 4.  The detective also saw the photograph of Brooks approximately two days after the transaction.  Neither [*521] detective reexamined the photograph in the subsequent seven months before trial, and there was no evidence that they saw Brooks in person again during that time.

   Brooks did not present[***6] any evidence.  He noted in closing argument that neither detective, either at the time of the transaction or at trial, had commented on Brooks's facial scar or his two gold-trimmed teeth as assisting them in identifying him.

   Before the Court of Special Appeals, Brooks argued that Judge Thieme committed [**786] reversible error when he denied the motion to compel disclosure of the informer's identity.  He claimed that Judge Thieme mislabelled the informer a "tipster," and then failed to weigh Brooks's specific claim of misidentification against the State's interest in withholding the identity of the informer.

   The Court of Special Appeals agreed that the informer was not a mere "tipster." It reasoned that the informer issue was "mid-point along a spectrum which is free of ambiguity at both ends." It held that, had the informer been a mere "tipster," his disclosure would not have been required.  On the other hand, it said that had the informer been an active participant in the crime itself, his disclosure could be compelled.  The court then held that, as a witness, the informer stood between the two categories and that, in those circumstances, the law entrusts the disclosure decision to the [***7] wide discretion of the judge at the pretrial hearing. The court concluded that Judge Thieme had fairly exercised his discretion in denying the motion.  It also found that, in making the motion, Brooks was "involved either on a fishing expedition or an opportunity to make procedural mischief for future appellate purposes." In so holding, the intermediate appellate court determined that Judge Thieme's decision not to compel disclosure of the informer's identity was fortified by the fact that the two officers had seen Brooks on three or four previous occasions, had seen his vehicle, and had identified his photograph.

   [*522] II.

   The State's privilege to withhold from disclosure the identity of its informers has long been recognized, not only in Maryland, Drouin v. State, 222 Md. 271, 279, 160 A.2d 85 (1960), but throughout the country.  McCray v. Illinois, 386 U.S. 300, 308, 87 S.Ct. 1056, 1061, 18 L.Ed.2d 62 (1967). The purpose of the privilege is to further and protect the public interest in effective law enforcement. Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed.2d 639 (1957).[***8] 
"'Communications of this kind ought to receive encouragement.  They are discouraged if the informer's identity is disclosed. . . .  Law enforcement officers often depend upon professional informers to furnish them with a flow of information about criminal activities.  Revelation of the dual role played by such persons ends their usefulness to the government and discourages others from entering into a like relationship.'"
McCray, 386 U.S. at 308-09, 87 S.Ct. at 1061 (quoting 8 J. Wigmore, Evidence § 2374 (McNaughton rev. 1961)).  The informer's privilege is especially important "'in the enforcement of . . . narcotics laws, [since] it is all but impossible to obtain evidence for prosecution save by the use of decoys.  There are rarely complaining witnesses.'" Lewis v. United States, 385 U.S. 206, 210-11, n. 6, 87 S.Ct. 424, 427 n. 6, 17 L.Ed.2d 312 (1966) (quoting Model Penal Code § 2.10, comment, p. 16 (Tent. Draft No. 9, 1959)).  Accord McCray, 386 U.S. at 312, 87 S.Ct. at 1063.

   While the State's interest in maintaining the anonymity of its informers [***9]is manifestly important, that interest is necessarily circumscribed by the defendant's interest in a fair trial.  In this regard, the Supreme Court held in Roviaro, its seminal case on this issue, that the privilege is limited by fundamental fairness requirements when determining the guilt or innocence of the accused.  "Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, [*523] the privilege must give way." 353 U.S. at 60-61, 77 S.Ct. at 627-628. This is the applicable standard when determining whether the State's privilege accedes to the defendant's constitutional rights of due process and confrontation.  United States v. Valenzuela-Bernal, 458 U.S. 858, 870, 102 S.Ct. 3440, 3448, 73 L.Ed.2d 1193 (1982). See also Md. Rule 4-263(c)(2).

   In that same vein, the Court held that the privilege is limited to its underlying purpose.  Roviaro, 353 U.S. at 60, 77 S.Ct. at 627. Thus, once the identity of the [**787] informer[***10] has been disclosed to those who would resent the communication, the privilege no longer applies if its purpose of protecting the anonymity of the informer is no longer served.  Id.

   Roviaro did not impose any absolute rule of when an informer's identity must be disclosed.  Id. 353 U.S. at 62, 77 S.Ct. at 628. See also McCray, supra, 386 U.S. at 311, 87 S.Ct. at 1062. Instead, the Court required trial judges to balance the public interest in protecting the flow of information against the individual's right to prepare a defense.  Roviaro, 353 U.S. at 62, 77 S.Ct. at 628. "Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors." Id. The Court suggested three defenses for which an informer's identity could be vital: entrapment, lack of knowledge of the contents of a package, and, as in this case, mistaken identity. Id. 353 U.S. at 64, 77 S.Ct. at 629.[***11]

   In Roviaro, the informer and the accused were the sole participants in a drug transaction, the testifying police officers only listened to the transaction or watched it from afar, the accused did not know the informer, and the defense was entrapment. The Court, applying its balancing test, held that the informer's name should have been released.  In so holding, it noted that the informer's "possible testimony was highly relevant and might have been helpful to the defense," id. 353 U.S. at 63-64, 77 S.Ct. at 629-630, in [*524] part because he was the "only witness [other than the accused] in a position to amplify or contradict the testimony of government witnesses." Id. 353 U.S. at 64, 77 S.Ct. at 629. n2

n2 Roviaro recognized, 353 U.S. at 64, 77 S.Ct. at 629, that the only other option was to require the accused to take the stand in his own defense, an option which severely impacted upon the accused's Fifth Amendment right not to testify.

[***12]

   Relying on Roviaro, we interpreted the nondisclosure privilege to be inapplicable "whenever the informer was an integral part of the illegal transaction." McCoy v. State, 216 Md. 332, 337, 140 A.2d 689, cert. denied sub nom., McCoy v. Pepersack, 358 U.S. 853, 79 S.Ct. 82, 3 L.Ed.2d 87 (1958). We noted that "[t]he cases universally recognize the exception to the nondisclosure privilege where the informer was a participant, accessory or witness to the crime." Gulick v. State, 252 Md. 348, 354, 249 A.2d 702 (1969). Judge Orth, in Nutter v. State, 8 Md.App. 635, 639, 262 A.2d 80 (1970), clarified the disclosure requirement in regard to an informer who witnesses the unlawful transaction:
"'[W]itness' as used in Gulick means a material witness, in the sense that his testimony is important to a fair determination of the cause.  It is then that his identity becomes necessary and relevant to a fair defense.  Thus in this context 'material' may be said to have a meaning more restrictive than its usual meaning.  So, although an eyewitness[***13] to a crime is clearly a 'material' witness as that word is ordinarily used, if he is an informer, simply observing an illegal transaction but not participating in it, the fact that he observes the transaction does not necessarily make his possible testimony so important as to compel disclosure of his identity in the face of the rationale of the nondisclosure privilege." (Emphasis in original.)
[*525] The decision to compel disclosure of an informer is within the sound discretion of the trial court.  Gulick, 252 Md. at 354, 249 A.2d 702.

   We have stressed that trial courts must apply the Roviaro balancing test in each case, regardless of the labels attached to the informer's role.  Gulick, 252 Md. at 354, 249 A.2d 702; Drouin, supra, 222 Md. at 286, 160 A.2d 85. Clearly, the practical application of the balancing test is more rudimentary in some cases.  For example, we recognize that the privilege ordinarily applies where the informer is a mere "tipster," who supplies a lead to law enforcement officers but is not present at the crime, while disclosure is usually required when the[***14] informer is a participant in the [**788] actual crime. United States v. Brinkman, 739 F.2d 977, 981 (4th Cir.1984); Jones v. State, 56 Md.App. 101, 110, 466 A.2d 895 (1983). Contrary to the view taken by the Court of Special Appeals in this case, the balancing test should be applied in all cases.  As noted in Nutter, the key element is not the role of the informer, but the materiality of his testimony to the determination of the accused's guilt or innocence balanced against the State's interest in protecting the identity of the informer.

   We thus reject the State's contention that the nondisclosure privilege applies when an informer merely points out or introduces a defendant to an undercover officer and is only a witness to, not a participant in, the illegal transaction. Such a rule would ignore the required Roviaro balancing test. Indeed, virtually all the cases cited by the State in favor of this proposition applied the Roviaro test to the particular facts of the case before concluding that disclosure was not necessary.

   A number of jurisdictions confronted with claimed misidentification cases similar to the instant case[***15] have balanced the State's interest in nondisclosure against the accused's interest in the informer's testimony and have found the latter interest to prevail.  State v. Blyther, 287 S.C. 31, 336 S.E.2d 151 (Ct.App.1985), cited with approval in State v. [*526] Burney, 294 S.C. 61, 362 S.E.2d 635 (1987) (disclosure required where informer introduced seller by different last name, and where police report written by testifying officer did not describe seller as having defendant's moustache or missing teeth, and did not accurately describe defendant's height); State v. Wandix, 590 S.W.2d 82 (Mo.1979), cert. denied, 445 U.S. 972, 100 S.Ct. 1665, 64 L.Ed.2d 248 (1980) (disclosure required even though informer introduced seller by defendant's name, because defendant had alibi and testifying officer had only seen defendant once before sale); State v. Tuell, 112 Ariz. 340, 541 P.2d 1142 (1975) (disclosure required where sale occurred in defendant's house because officer's description of defendant "Larry" more accurately described defendant's [***16] housemate "Gary"); Commonwealth v. Carter, 427 Pa. 53, 233 A.2d 284 (1967) (disclosure required where testifying officers only knew defendant from sale in question).  See also United States v. Ayala, 643 F.2d 244 (5th Cir.1981) (disclosure required where informer was present and both informer and testifying officer knew defendant only from sale in question); Sims v. State, 313 So.2d 27 (Miss.1975) (disclosure normally required where informers are present, since there is usually nothing secret, confidential or "undercover" about who they are).

   Jurisdictions that have denied disclosure in mistaken identity cases have also relied on the Roviaro balancing test. United States v. Soles, 482 F.2d 105 (2d Cir.), cert. denied, 414 U.S. 1027, 94 S.Ct. 455, 38 L.Ed.2d 319 (1973) (privilege applied where it was highly unlikely that police officer who spent substantial periods of time with defendant making two drug transactions was mistaken as to defendant's identity); State v. Milligan, 71 N.J. 373, 365 A.2d 914 (1976) (privilege[***17] applied even though officer's description of defendant had minor mistakes where narcotic sale occurred in defendant's house and not on street).

    In People v. Goggins, 34 N.Y.2d 163, 356 N.Y.S.2d 571, 313 N.E.2d 41, cert. denied, 419 U.S. 1012, 95 S.Ct. 332, 42 L.Ed.2d 286 (1974), the New York Court of Appeals held in [*527] two factually similar consolidated cases that disclosure was warranted in one case but not in the other.  Both cases involved an informer introducing an undercover officer to a narcotics dealer who then sold narcotics to the officer on two separate occasions.  In the first case, the sales were made in a public bar; in the second case, they were made in the defendant's apartment.  The officer's opportunity to identify the defendant as the seller was better in the second case than in the first.  These facts were pivotal in the court's holding that there was a colorable factual dispute on the issue of identity in the first case but not the second.  Goggins demonstrates that "the truly crucial factor in every case is the relevance of the informer's testimony to the guilt or[***18] innocence of the accused," 356 N.Y.S.2d at 576, 313 [**789] N.E.2d at 45, and not the label attached to the informer's role.

   III.

   The Court of Special Appeals erred when it held that Judge Thieme properly exercised his discretion when denying Brooks's motion to disclose the identity of the informer. As we see it, the trial judge erroneously labelled the informer a "tipster;" he then erred when he held that this determination, in effect, replaced his duty to balance Brooks's claim of misidentification against the State's interest in protecting the informer's identity.  The intermediate appellate court seemingly ignored the possibility that Brooks requested the disclosure of the informer's identity because he truly was misidentified by the police as the seller, and was therefore not at the scene of the crime to know the informer's identity.  In these circumstances, it is hardly beyond reason that the informer, who knew the seller, might exonerate him.  The measure of that possibility is for the trial court to determine, applying the balancing test set forth in Roviaro, based on the record made at the pretrial hearing. In this regard, we note that[***19] the intermediate appellate court inappropriately relied on the prosecution testimony at trial to support Judge Thieme's denial of the motion to disclose. [*528] As with pretrial suppression hearings, see Trusty v. State, 308 Md. 658, 670-71, 521 A.2d 749 (1987), the appellate court reviews only the record made at the pretrial motion to disclose, and not the record of the trial itself, in determining whether it was error to deny the motion.

   We conclude, in the circumstances of this case, that Brooks must be afforded a new trial.  Whether Brooks's motion to compel disclosure of the informer's identity should be granted upon retrial is governed by the principles set forth in this opinion. n3

n3 At the new hearing, Brooks must do more than merely speculate that disclosure will prove helpful. United States v. Gonzales, 606 F.2d 70, 75 (5th Cir.1979); United States v. Trejo-Zambrano, 582 F.2d 460, 466 (9th Cir.), cert. denied sub nom., Fierro-Soza v. United States, 439 U.S. 1005, 99 S.Ct. 618, 58 L.Ed.2d 682 (1978); Jones, supra, 56 Md.App. at 109, 466 A.2d 895. As the Court said in Valenzuela-Bernal, supra, 458 U.S. at 871, 102 S.Ct. at 3448, "[w]hile a defendant who has not had an opportunity to interview a witness may face a difficult task in making a showing of materiality, the task is not an impossible one." Nevertheless, the burden is on the defendant to assert a substantial reason indicating that the identity of the informer is material to his defense or the fair determination of the case.  Drouin, supra, 222 Md. at 286, 160 A.2d 85.

[***20]

   JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REMAND THE CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR A NEW TRIAL.  COSTS IN THE COURT OF SPECIAL APPEALS AND IN THIS COURT TO BE PAID BY ANNE ARUNDEL COUNTY. 

Dewayne W. WATERS v. STATE of Maryland 
No. 147, September Term, 1989
 
Court of Appeals of Maryland
 
320 Md. 52; 575 A.2d 1244; 1990 Md. LEXIS 101

 July  3, 1990

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

DISPOSITION: JUDGMENT AFFIRMED, WITH COSTS.

CORE TERMS:  security guard, guard, special police, Fourth Amendment, seizure, arrest, commissioned, state action, licensed, plastic bag, policeman, motion to suppress, private detective, security officer, police officer, state agent, policemen, regulated, cocaine, regular, pocket, seized, duties, state authority, criminal law, good order, authorization, trigger, peace, police officers

COUNSEL: Carroll L. McCabe, George E. Burns, Jr., Asst. Public Defenders, and Alan H. Murrell, Public Defender, on brief, Baltimore, for appellant.

   Gwynn X. Kinsey, Jr., Asst. Atty. Gen. and J. Joseph Curran, Jr., Atty. Gen., on brief, Baltimore, for appellee.

JUDGES: Murphy, C.J., and Eldridge, Cole, Rodowsky, McAuliffe, Adkins and Chasanow, JJ.

OPINIONBY: MURPHY

OPINION: [*54] [**1245] At a nonjury trial in the Circuit Court for Anne Arundel County (Goudy, J.), DeWayne Waters was convicted of possession of cocaine and sentenced to a term of imprisonment.  During the pendency of his appeal before the Court of Special Appeals, we granted certiorari on our own motion to decide whether, as Waters claimed, the Fourth Amendment prohibition against unreasonable searches and seizures was applicable in the circumstances of this case.

   I.

   On the evening of May 16, 1988, Paul Madden was employed as a security guard at Wayson's Corner in Anne Arundel County.  He accosted Waters as he leaned against a vehicle in the parking lot.  Observing that Waters appeared to have [***2]a large object in his pocket, Madden reached into Waters's pocket and extracted a beer can and a plastic bag containing a whitish substance.  Madden then called [*55] the Anne Arundel County Police Department and Waters was arrested and charged with possessing cocaine.

   Upon Waters's motion to suppress the seized cocaine, Madden testified that he was a plainclothes security guard licensed by the Maryland State Police and working in that capacity on the night of Waters's arrest. Asked whether he was a "special police officer," Madden replied, "No, I was just a plainclothes security officer for Wayson's." He testified that he did not have the general arrest powers of a policeman but believed that he had the power to detain on a felony.  He said that he had attended two security schools in the early 1980's for training.  He stated that he had been involved in about seventeen "drug busts" over a one-year period; his involvement had been as "eyewitness, spotting people, pointing them out, identifying them." Madden said that he was wearing a suit and tie with his "security officer" badge clipped to his belt on the night of Waters's arrest.

   Waters testified at the suppression hearing [***3] that at the time of the search, he was standing next to his friends' car when Madden drove up, jumped out of his car, drew a gun and forced him to lean against the car. Waters said Madden had "lost his grip" and was "out of control." He said Madden pulled the plastic bag from his pocket without asking permission.

   Waters argued that Madden was a state agent by reason of his employment and that the search and seizure conducted by him was in violation of the Fourth Amendment. Waters conceded that Madden was a private security guard employed by a private detective agency regulated by what is now Maryland Code (1989), §§ 13-101 through 13-801 of the Business Occupations and Professions Article.  But Waters maintained that security guards are like special police officers who are commissioned by the Governor and exercise general police powers in the protection of their employer's property.  Waters suggested that both security guards and special policemen are agents of the State because their duties are similar to those of regular police [*56] officers; they are both regulated by [**1246] the State and authorized to wear badges and to obtain permits to carry guns.  Thus, Waters urged the trial[***4] judge to conclude that Madden's seizure of the plastic bag involved state action, and because it was unreasonable, the evidence should be suppressed.

   Judge Goudy found that Madden's security guard employment did not make him an agent of the State.  In denying the motion to suppress, he said:
"[T]he Court finds from the evidence . . . that the witness in the case was not a police officer, not an agent of the State.  The witness was licensed by the State, but merely being licensed . . . does not show enough control to be an agent.

   "The witness was an employee of a private enterprise. . . .  The prohibition against [search and] seizure is a sanction against the State, not against private citizens, which is what the witness was in this case.  The search[,] while it could very well have been a trespass in this case, a trespass to the person, is not inadmissible . . . by the State against the Defendant."

   Before us, Waters renews his argument that because private security guards employed by private detective agencies, and special police officers commissioned by the Governor, perform duties similar to those of regular police officers, Madden's seizure of the plastic bag constituted illegal[***5] state action. Alternatively, Waters suggests that notwithstanding his concession at trial that Madden was a private security guard, reversal of his conviction is nevertheless mandated because the trial judge made no factual findings as to whether Madden was a security guard or a special policeman. As to this, he argues that Madden's use of the phrase "security officer" or "security guard," in describing his employment, was inconclusive as to his actual status.

   II.

   The Fourth Amendment of the United States Constitution guarantees the right of individuals to be secure [*57] against unreasonable searches and seizures. It applies to actions by the State, Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081 (1961), but generally does not apply to actions by private individuals.  United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984); Burdeau v. McDowell, 256 U.S. 465, 467, 41 S.Ct. 574, 574, 65 L.Ed. 1048 (1921). Thus when a private individual obtains incriminatory matter from an accused, no matter how[***6] improperly, and such matter comes into the possession of the government without a violation of the accused's rights by governmental authority, the exclusionary rule does not prohibit its use at trial.  Bowers v. State, 298 Md. 115, 139-40, 468 A.2d 101 (1983); Herbert v. State, 10 Md.App. 279, 284-85, 269 A.2d 430 (1970). A private search or seizure may, however, trigger Fourth Amendment protections if the private individual whose actions are in question, "in light of all the circumstances of the case, must be regarded as having acted as an 'instrument' or agent of the state." Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 2048, 29 L.Ed.2d 564 (1971).

   Maryland Code (1986 Repl.Vol.), Article 41, §§ 4-901 through 4-913 (entitled "Special Policemen"), authorizes the Governor to "appoint and deputize as special policemen persons he deems qualified for special police commissions." § 4-901.  Section 4-902 provides that applications for a commission shall be made to the Superintendent of the Maryland State Police by governmental agencies, political subdivisions, colleges[***7] or universities, or by private business entities for the purpose of protecting their properties.  Once commissioned, a special police officer "has, and may exercise, the powers of a police officer upon the property," including the power to preserve the "peace and good order" of the property and to make arrests. § 4-905.  A special police officer is considered the employee of the applicant for the commission, § 4-909, and is generally limited to exercising police powers on the property.  Huger v. State, 285 Md. 347, 352, 402 A.2d 880 (1979). Nevertheless, the police power itself is not so limited since the words "peace and [*58] good order," contained in the statute, "'permit a [**1247] special policeman, when on his employer's property, to enforce the criminal law generally.'" Id. at 351, 402 A.2d 880, quoting Gray v. State, 38 Md.App. 343, 349, 380 A.2d 1071 (1977), cert. denied, 282 Md. 732 (1978). When special police officers are enforcing the criminal law, they are exercising governmental powers which involve state action. See, e.g., Griffin v. Maryland, 378 U.S. 130, 135, 84 S.Ct. 1770, 1772, 12 L.Ed.2d 754 (1964)[***8] (holding that "[i]f an individual is possessed of state authority and purports to act under that authority, his action is state action").  Griffin involved special deputy sheriffs, employed by a private park, who were deputized pursuant to the provisions of a county ordinance which invested them with powers similar to those exercised by a special policeman commissioned by the Governor.  The Court said that the arrests made by these special deputies constituted state action. See also United States v. Lima, 424 A.2d 113, 118 (D.C.App.1980) (where security guard has powers akin to regular police officer, and is appointed by government official even though privately employed, sufficient trappings of state authority exist to trigger Fourth Amendment restrictions).  Thus, had Madden been a special police officer commissioned by the Governor under § 4-901, his seizure of the plastic bag would have been subject to the Fourth Amendment. See Huger, supra; Pratt v. State, 9 Md.App. 220, 263 A.2d 247 (1970).

   Unlike special policemen commissioned by the Governor, security guards are not vested with arrest[***9] or other police powers.  They are employed by private detective agencies which are licensed by the Superintendent of the Maryland State Police under Code, Title 13 of the Business Occupations Article. Section 13-101(k) of the Article defines a "Security guard" as an individual "who provides security guard services"; these services are defined in subsection (1) to include "any activity that is performed for compensation as a security guard to protect any individual or property, except the activities of an individual [*59] while performing as . . . (2) a special police officer [commissioned by the Governor under Article 41 of the Code]." As employees of detective agencies engaged to guard the property of their employer's clients, security guards have not been granted police powers by statute and therefore are not state agents in any traditional sense for purposes of the Fourth Amendment. See Huger, supra, 285 Md. at 353, 402 A.2d 880; Leach v. Penn-Mar Merchants Ass'n, 18 Md.App. 603, 610, 308 A.2d 446, cert. denied, 269 Md. 761 (1973). Without governmental powers, security guards are acting as[***10] private citizens when protecting property, and their private status is not altered because their interest in protecting property coincides with the public's interest in preventing crime generally.  The Attorney General of Maryland has also recognized that licensed security guards are not state agents.  See 50 Op. Att'y Gen. 309 (1965) (holding that since security guards act upon the authorization of their employer, that authorization can be no broader than that which the employer possesses, namely, the authority of a private citizen).  See Stevenson v. State, 287 Md. 504, 413 A.2d 1340 (1980) (defining a citizen's power to arrest); Great Atlantic & Pacific Tea Co. v. Paul, 256 Md. 643, 655, 261 A.2d 731 (1970) (shopkeeper's authority to arrest or detain is limited to the authority of a private citizen).  Moreover, mere state licensing of a private individual's occupation, without more, does not constitute sufficient state control to make the individual a state agent. See Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974); [***11]Bowers, supra, 298 Md. at 140, 468 A.2d 101. Nor does extensive state regulation of itself convert the actions of those regulated into state action. Jackson, 419 U.S. at 350, 95 S.Ct. at 453.

   III.

   The burden was upon Waters, as the proponent of the motion to suppress, to establish that his Fourth Amendment rights were violated by the challenged search and seizure. Ricks v. State, 312 Md. 11, and cases cited at 26, [*60] 537 A.2d 612 (1988). In the same vein, the burden of establishing government involvement in a [**1248] private search rests on the party objecting to the admissibility of the evidence.  See U.S. v. Snowadzki, 723 F.2d 1427, 1429 (7th Cir.), cert. denied, 469 U.S. 839, 105 S.Ct. 140, 83 L.Ed.2d 80 (1984); U.S. v. Miller, 688 F.2d 652, 657 (9th Cir.1982); U.S. v. Freeland, 562 F.2d 383, 385 (6th Cir.), cert. denied, 434 U.S. 957, 98 S.Ct. 484, 54 L.Ed.2d 315 (1977).

   The only evidence in the case was that Madden was[***12] a licensed security guard at the time he seized the plastic bags, and the trial judge so held.  Water's argument that Madden was a state agent is wholly unconvincing. Consequently, Judge Goudy correctly determined that the seized cocaine was admissible in evidence, there being no showing (or even an allegation) that Madden was working in collusion with the police at the time of the search, or otherwise acted as an instrument of the State in the performance of his duties.

   JUDGMENT AFFIRMED, WITH COSTS. 

Jeffrey SIMS v. STATE of Maryland 
No. 113, September Term, 1988
 
Court of Appeals of Maryland
 
319 Md. 540; 573 A.2d 1317; 1990 Md. LEXIS 86

 May  30, 1990

   SUBSEQUENT HISTORY: [***1] As Corrected June 19, 1990.

PRIOR HISTORY:  
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; COSTS TO BE PAID BY PETITIONER.

CORE TERMS:  self-defense, female, manslaughter, imperfect, evening, beige, male, adequate provocation, provocation, shot, parking lot, passion, hot-blooded, mitigation, looked, Criminal Law, white car, shorter, walked, rowdy, defense counsel, shooting, honestly, instruct, talking, street, walk, beer, feet, evidence sufficient

COUNSEL: Michael R. Braudes, Assistant Public Defender, Alan H. Murrell, Public Defender, both on brief, both of Baltimore, Maryland, for petitioner.

   Richard B. Rosenblatt, Assistant Attorney General, J. Joseph Curran, Jr., Attorney General, both on brief, both of Baltimore, Maryland, for respondent.

JUDGES: Murphy, C.J., and Eldridge, Cole, Rodowsky, McAuliffe, Adkins and Blackwell, * JJ.

* Blackwell, J., now retired, participated in the hearing and conference while an active member of this Court but did not participate in the decision and adoption of this opinion.

OPINIONBY: McAULIFFE

OPINION: [*543] [**1318] Shortly before midnight on 9 September 1986, someone shot and killed Michael Bucino in the parking lot of the 602 Club in Laurel, Maryland.  Jeffrey Sims claims that he was not present and did not shoot Bucino, but a jury in the Circuit Court for Anne Arundel County found to the contrary and convicted him of murder in the second degree.  Sims does not contest the sufficiency of the evidence to [***2] support the jury's finding, but contends that the trial judge erred in refusing to instruct the jury concerning voluntary manslaughter. Sims claims he was entitled to a manslaughter instruction because the evidence fairly generated the question of whether the shooter, 1) acted in hot-blooded response to legally adequate provocation or, 2) was entitled to claim imperfect self-defense. We find no fault with the defendant's attempt to interpose inconsistent theories of defense and mitigation, but hold that the evidence was insufficient to warrant an instruction on manslaughter.

   I

   Facts

   The victim, Bucino, was known to his friends as "Bear," apparently because he was six feet three inches tall, weighed 327 pounds, and wore a full beard and mustache.  He was a regular patron of the 602 Club, and sometimes volunteered his services in maintaining order and in securing the Club and its parking lot at closing.  Bucino arrived at the 602 Club sometime between 7 p.m. and 10 p.m. on September 9, and remained there until the bar closed.  He drank about two pitchers of beer during that time.

   The defendant entered the 602 Club shortly after 11:30 that evening, and ordered a beer. Although [***3] "last call" for [*544] drinks had been announced earlier, and the bartender had begun his closing duties, Sims was served a beer because the bartender recognized him. n1£ The first words between Sims and Bucino that evening occurred when Sims put a quarter in the jukebox and complained because it did not play.  According to Sims, Bucino said, "[T]hey don't play your kind of music."£ Sims is black and Bucino was white.  Sims testified that Bucino had also spoken to him on an earlier date, when they were [**1319] both at the package store adjacent to the bar.  On that occasion, Sims was advised by the clerk that the item he ordered was not in stock, and Bucino gratuitously interjected, "[T]ake what you get, boy."

n1 Sims worked nearby, and for business and social reasons was often in the 602 Club and on its parking lot.

   On the night in question, after the bartender explained to Sims that the jukebox had been turned off for the evening, Sims began talking to an inebriated white female, as well as to another black male who was [***4] described as being shorter than Sims.  The manager of the bar heard Bucino say to someone, she did not know to whom, "[Y]ou don't put your hands on a woman in here."£ Shortly thereafter, Bucino told the manager that he did not want any trouble, that Sims had been calling him "obscenities" and "fat boy."£ Just prior to midnight, Sims, the shorter black male, and the white female left the bar.  As they were preparing to leave, Bucino said to the female, "[W]hy are you leaving with them," or words to that effect.

    What happened outside the bar was described by two Navy enlisted men who were stationed at nearby Fort Meade, and who had been in the 602 Club earlier in the evening. John Harkness, Jr., testified that he and William Stevenson had gone to another bar in the area, the Tack Room, at about 5 p.m., where they each drank one beer. He said they came to the 602 Club about an hour later, and except for a period of approximately an hour when they were out for dinner, spent the rest of the evening in the 602 Club.  Harkness testified he had seen Bucino come into the [*545] 602 Club at about 7 p.m. and realized he had seen him earlier that evening at the Tack Room.  He said Bucino was [***5] "a little bit rowdy" at the Tack Room, but "didn't do anything" at the 602 Club.  Harkness and Stevenson left the 602 Club when last call was announced, apparently before Sims entered.  They walked across the street to a convenience store, bought soft drinks and potato chips, and returned to Stevenson's car in the 602 Club parking lot. As he was seated in the car talking to Stevenson, Harkness observed two black males and a white female exit the bar.  He said the taller male and the female walked along the front of the building to a beige automobile that was parked near the door to the adjacent package store.  The shorter black male went in a different direction to a white car. The shorter black male drove the white car to the area of the beige car, where the other two persons were talking. After what appeared to be a brief conversation, the person in the white car drove out of the parking lot. At this point, the female walked back into the lounge.  Other evidence indicated she had left her purse on the bar, and had returned to retrieve it.

   A few moments after the female re-entered the bar, Bucino came out, and walked to the area of the beige car.  By this time, the taller male [***6] was in the beige car.  When Bucino was within three to seven feet of the car, he appeared to engage the driver in conversation, and at one point was shaking his finger and appeared to be yelling at the occupant.  Harkness said, "[I]t looked like an argument," but because he was approximately 50 to 60 feet away, he could not hear what was said.  Bucino then turned and started to walk away from the car.  He stopped, turned back, and took a couple of steps toward the car.  At that point, Harkness's attention was diverted by a light coming on somewhere else on the lot, and he looked away.  He then heard two or three "loud cracks" from the direction of the beige car.  He immediately looked back, saw the beige car leave the lot "fast."£ He also saw Bucino lying on the [*546] sidewalk near the Club, and saw the female coming out of the Club.

   Stevenson's recollection was that he and Harkness had arrived at the 602 Club about 9 p.m., and had remained there until last call, which occurred at about 11:30 p.m. He said Bucino came into the Club at 9:45 p.m. or 10 p.m. Stevenson generally corroborated Harkness's account of what happened in the parking lot, except Stevenson testified that Bucino, [***7] when he first approached the beige car, had at one point "lean[ed] over the door."£ He said that at first Bucino and the occupant of the car appeared to be talking calmly, but "then it looked like they may have been arguing," because Bucino "was kind of shaking his finger at the man in the car."£ Stevenson [**1320] said Bucino then turned and walked away from the car, walking about halfway back to the door of the bar. At that point, Bucino stopped, turned around, and began walking back toward the car.  Stevenson observed Bucino say something to the occupant of the car, as he approached it, but Stevenson then averted his gaze to speak to Harkness. Stevenson heard what he believed to be a shot, looked back, and saw the flashes of muzzle fire from a gun in the area of the driver's seat of the vehicle as two additional shots were fired.  Stevenson testified that at the time the shots were fired, Bucino was four to five feet from the car.  He said the beige car then quickly left the lot.  Stevenson later identified a car belonging to the defendant's wife as the beige car from which the shots were fired.

   The defendant testified that he left the bar at the same time as the white female, although they [***8] were not together.  He said the shorter black male who had been in the bar with them then drove by in a white car, stopping long enough to invite the female to join him.  When she refused, the male in the white car left.  The defendant said that at about this time he noticed a tall white male standing by the entrance to the package store.  He said the female then returned to the bar, and Sims got in his car, a black Volkswagen [*547] "beetle", and left.  He said he heard a "pop or something" as he left the parking lot, but paid no attention to it.

   II

   The Requested Manslaughter Instruction

   At a bench conference called at the conclusion of all the evidence, the trial judge discussed with counsel the jury instructions to be given.  Defendant's attorney asked for an instruction on manslaughter. He said:
 
I think that the State in its evidence may have triggered the issue of manslaughter. And I would ask the court to instruct the jury and allow them to return a verdict of manslaughter if they feel that the killing of Mr. Bucino was done by my client but may have been done with mitigation.
 
The prosecutor assumed that the defense request was based on one of two theories: [***9] hot-blooded response to a legally adequate provocation, or imperfect self-defense. He addressed both theories, and opined that the evidence was insufficient to generate an instruction on either.  Defense counsel clarified his position:
 
What I'm saying, judge, I don't think this is an imperfect self-defense case at all.  I think this is a case where the jury may find that because of the man's size and because of his condition as to sobriety, or lack of same, that his -- he's been described as massive.  He was described as intimidating. . . .  That the jury may feel, and they are the trier of the fact, that the person responded to these gestures.  And that this coming back after he had left, came back in an aggressive-type manner, to be adequate provocation. And I think it's a question for the trier of fact to determine.  I think -- I don't think it's necessary for my client to substantially put himself at the scene.  If the State's evidence, and they're trying to show that he was a criminal agent, and if the State's evidence fairly generates the issue I think that it's up to the trier of fact to determine.
 
[*548] The trial judge denied the request, finding the defendant's [***10]testimony to be inconsistent with a theory of mitigation. He said:
 
It may have been had he remained silent, but once he takes the stand and denies it I'm not going to allow him to walk both sides of the street which is what you want to do.  The appellate court's going to have to permit that.  The court will deny the motion.

    The trial judge instructed the jury concerning murder in the first and second degrees but, consistent with his ruling, did not give an instruction concerning manslaughter. Although the defendant noted certain exceptions at the conclusion of the charge, he did not include an exception to the court's failure to instruct on manslaughter.

   [**1321] The defendant was convicted of second degree murder and sentenced to 25 years imprisonment. n2£ He appealed, and the Court of Special Appeals affirmed his conviction in an unreported opinion.  The intermediate appellate court, relying upon its earlier decision in Brown v. State, 29 Md.App. 1, 349 A.2d 359 (1975), held that where the defendant denied involvement in the shooting, the trial judge properly refused to instruct on manslaughter. We granted the defendant's petition for certiorari, [***11] and we affirm the conviction.  We do so, however, on the ground that the evidence adduced at trial was not sufficient to generate the issue of manslaughter, and not on the ground that the defendant was precluded from advancing alternative or inconsistent theories of defense.

n2 The defendant was also found guilty of the use of a handgun in the commission of a crime of violence, and was sentenced to five years concurrent imprisonment on that charge.

   Preliminary to our discussion of the substantive issues, we note a potential problem with respect to adequate preservation of this point for appellate review.  Maryland Rule 4-325(e) provides, in part:

   No party may assign as error the giving or the failure to give an instruction unless the party objects on the [*549] record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection.  (Emphasis added.)
 
We have said that under certain well-defined circumstances, when the objection is [***12] clearly made before instructions are given, and restating the objection after the instructions would obviously be a futile or useless act, we will excuse the absence of literal compliance with the requirements of the Rule. Gore v. State, 309 Md. 203, 208-09, 522 A.2d 1338 (1987); Bennett v. State, 230 Md. 562, 188 A.2d 142 (1963). We make clear, however, that these occasions represent the rare exceptions, and that the requirements of the Rule should be followed closely.  Many issues and possible instructions are discussed in the usual conference that takes place between counsel and the trial judge before instructions are given.  Often, after discussion, defense counsel will be persuaded that the instruction under consideration is not warranted, and will abandon the request.  Unless the attorney preserves the point by proper objection after the charge, or has somehow made it crystal clear that there is an ongoing objection to the failure of the court to give the requested instruction, the objection may be lost.  See Johnson v. State, 310 Md. 681, 685-89, 531 A.2d 675 (1987). In reading [***13] the transcript of these proceedings, for example, it is difficult, if not impossible, to determine whether defense counsel acquiesced in the judge's determination that the defendant could not "walk both sides of the street" or, whether having considered the apparent inconsistency of the two positions, counsel decided to abandon the request for a manslaughter instruction as a matter of sound trial tactics or, whether he intended to persist in his request.

   We shall consider the issue notwithstanding the defendant's failure to follow the precise dictates of Rule 4-325(e) because, as the State concedes, the Court of Special Appeals apparently considered the substantive question under the "plain error" exception built into the Rule, and that Court did not abuse its discretion in doing so.  See Dawkins v. State, 313 Md. 638, 643, 547 A.2d 1041 (1988).

   [*550] The trial judge was of the opinion that the defendant could not "walk both sides of the street" -- that is, that the defendant could not simultaneously advance inconsistent theories of defense.  We do not agree.  We hold that a defendant is entitled to have the jury instructed on any theory of defense [***14] that is fairly supported by the evidence, even if several theories offered are inconsistent.  This is the position taken by the federal courts, and by the vast majority of state courts.  See, e.g., Mathews v. United States, 485 U.S. 58, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988); People v. Perez, 62 Cal.2d 769, 44 Cal.Rptr. 326, 401 P.2d 934 (1965); State v. Harris, 189 Conn. 268, 455 A.2d 342 (1983); State v. Shehan, 242 Kan. 127, 744 P.2d 824, 827-28 (1987); State v. Knowles, 495 A.2d 335 (1985), appeal [**1322] after remand, 517 A.2d 1075 (Me.1986); Love v. State, 441 So.2d 1353 (Miss. 1983); State v. Baker, 277 S.W.2d 627 (Mo.1955); State v. Kills Small, 269 N.W.2d 771 (S.D.1978); People v. Fugua, 146 Mich.App. 133, 379 N.W.2d 396 (1985); Booth v. State, 679 S.W.2d 498 (Tex.App.1984).

   This holding is consistent with the requirement of Maryland Rule 4-325(c) that "[t]he court may, and at the request [***15] of any party shall, instruct the jury as to the applicable law. . . ."£ It is also consistent with the general proposition that a defendant is entitled to an instruction on every essential question or point of law supported by evidence.  Smith v. State, 302 Md. 175, 179, 486 A.2d 196 (1985); Blackwell v. State, 278 Md. 466, 477, 365 A.2d 545 (1976), cert. denied, 431 U.S. 918, 97 S.Ct. 2183, 53 L.Ed.2d 229 (1977). See also Hook v. State, 315 Md. 25, 41, 553 A.2d 233 (1989) (defendant entitled to an instruction on lesser included offense when that offense is fairly supported by the evidence).

   To the extent that language of the Court of Special Appeals in Brown v. State, supra, 29 Md.App. at 20, 349 A.2d 359, is inconsistent with our holding today, that language is disapproved.

   Although as a legal matter there is no bar to putting forth different or inconsistent theories of defense, there will [*551] often be practical problems of proof, particularly where different theories involve proof of different mental states [***16] on the part of the defendant.  Where, for example, a particular subjective belief is required, a defendant who testifies that he was not present may find it difficult or impossible to adduce evidence that will fairly support the required finding.  Indeed, that is the crux of the problem facing the defendant in this case.

   Sims argues that he was entitled to a manslaughter instruction on either of two theories -- hot-blooded response to provocation, or imperfect self-defense. Concerning the first, he argues that the jury could have found he acted in hot blood either as a result of a mutual affray, or in direct response to provocation evidenced by Bucino's words coupled with his conduct.

   In Cox v. State, 311 Md. 326, 331, 534 A.2d 1333 (1988), we defined voluntary manslaughter to include "intentional homicide, done in a sudden heat of passion, caused by adequate provocation, before there has been a reasonable opportunity for the passion to cool."£ In Whitehead v. State, 9 Md.App. 7, 11, 262 A.2d 316 (1970), Judge Orth for the Court of Special Appeals set forth the four elements of the rule of provocation described by Professor [***17] Rollin M. Perkins: n3
 
(1) There must have been adequate provocation;
(2) The killing must have been in the heat of passion;
(3) It must have been a sudden heat of passion -- that is, the killing must have followed the provocation before there had been a reasonable opportunity for the passion to cool;
(4) There must have been a causal connection between the provocation, the passion, and the fatal act.

n3 R. Perkins, Criminal Law 43-55 (1957).  More recently, see R. Perkins, Criminal Law 53-54 (2d ed. 1969); R. Perkins and R. Boyce, Criminal Law 84-85 (3d ed. 1982).

   Mutual combat has been recognized as a possible source of adequate provocation. Carter v. State, 66 Md.App. 567, 572, [*552] 505 A.2d 545 (1986); Shuck v. State, 29 Md.App. 33, 38-40, 349 A.2d 378 (1975), cert. denied, 278 Md. 733 (1976); Whitehead v. State, supra, 9 Md.App. at 11, 262 A.2d 316; R. Perkins and R. Boyce, [***18] Criminal Law 88-91 (3d ed. 1982); 2 C. Torcia, Wharton's Criminal Law § 159 (14th ed. 1979).  The rule of provocation will apply when persons enter into angry and unlawful combat with a mutual intent to fight and, as a result of the effect of the combat, the passion of one of the participants is suddenly elevated to the point where he resorts to the use of deadly force to kill the other solely because of an impulsive response to the passion and without time to consider the consequences of his actions.  In the case before us, there was no evidence of a mutual affray.  Insulting words or gestures, no matter how opprobrious, [**1323] do not amount to an affray, and standing alone, do not constitute adequate provocation. See 2 C. Torcia, Wharton's Criminal Law, supra, § 156; R. Perkins and R. Boyce, Criminal Law, supra, 93-94; Lang v. State, 6 Md.App. 128, 250 A.2d 276 (1969). Although there was evidence from which the jury could have found that Bucino had directed racial and derogatory comments toward Sims in the bar, this conduct did not constitute adequate provocation. Moreover, Sims testified that he was not upset by the comments.  He [***19] said:
 
I didn't pay him no attention.  I don't -- you know, I didn't want to argue about it, right.  So I just looked at him, you know, and that was it. . . .  Me and him never really had any words, you know, about anything.

   As the Court of Special Appeals noted in Lang v. State, supra, 6 Md.App. at 132, 250 A.2d 276, there is authority for the proposition that sufficient provocation may consist of words accompanied by conduct indicating a present intention and ability to cause the defendant bodily harm.  See 1 Wharton's Criminal Law and Procedure § 177 (Anderson ed. 1957).  Assuming, without deciding, that a combination of words and conduct may give rise to sufficient provocation, we find the evidence here insufficient to support that theory.

   [*553] Even if we were to find the evidence sufficient to objectively show adequate provocation, there is not a shred of evidence showing the state of mind of the defendant at the moment of the shooting. Sims' testimony sheds no light on this because he testified that he was not there.  No one else saw his facial expressions or heard his speech at the time critical to this determination.  Assuming [***20] that there might be a case where evidence of that type could demonstrate the sudden onset of hot-blooded passion that produced the mortal blow or shot, this is not such a case.  The blood must indeed be hot, and under some circumstances only the hot-blooded killer can attest to that.  See Price v. State, 82 Md.App. 210, 217, 570 A.2d 887 (1990); Cunningham v. State, 58 Md.App. 249, 259, 473 A.2d 40 (1984); Tripp v. State, 36 Md.App. 459, 469, 374 A.2d 384, cert. denied, 281 Md. 745 (1977); Bartram v. State, 33 Md.App. 115, 175, 364 A.2d 1119 (1976), aff'd, 280 Md. 616, 374 A.2d 1144 (1977).

   Although the ultimate burden of proving the absence of mitigation rests upon the State when that issue is properly in the case, the burden of initially producing "some evidence" on that issue (or of relying upon evidence produced by the State or adduced from witnesses called by the State) sufficient to give rise to a jury issue with respect to mitigation, is properly cast upon the defendant. Dykes v. State, 319 Md. 206, 215-17, 571 A.2d 1251 (1990); [***21] Simmons v. State, 313 Md. 33, 39-40, 542 A.2d 1258 (1988); State v. Evans, 278 Md. 197, 207-08, 362 A.2d 629 (1976). Sims was singularly unsuccessful in placing before the jury evidence sufficient to fairly generate the issue of mitigation by hot-blooded response to adequate provocation.

   Sims fares no better with his second argument, concerning the doctrine of imperfect self-defense. He did not preserve this point for appellate review. Indeed, he expressly disavowed any reliance upon the theory of imperfect self-defense when he requested an instruction on manslaughter. We add that had the point been preserved, we would have found it to be without merit.

   [*554] We recognized the doctrine of imperfect self-defense in State v. Faulkner, 301 Md. 482, 483 A.2d 759 (1984), and we have more recently discussed it in Simmons v. State, supra, and Dykes v. State, supra. Imperfect self-defense may be available to mitigate murder to manslaughter when the defendant is able to show that he honestly held certain subjective beliefs [***22] even though those beliefs may be objectively unreasonable, and all other requirements of "perfect" self-defense are present.  Judge Moylan, writing for the Court of Special Appeals in Watkins v. State, 79 Md.App. 136, 138, 555 A.2d 1087 (1989), noted:
 
Where . . . the defender unreasonably (though honestly) perceives the danger or unreasonably (though honestly) responds [**1324] with more than necessary force, it is a case of imperfect self-defense, which mitigates the level of blameworthiness down to the manslaughter level even though it does not totally exculpate.  (Emphasis in original.)

   Sims has never contended that he was entitled to an instruction on "perfect" self-defense. He does not contend that there was evidence from which the trier of fact could conclude that the person who shot Bucino had reasonable grounds to believe himself in immediate danger of death or serious bodily harm, and that resort to the use of fatal force was justified.  Rather, he contends that even in the absence of proof of an objectively reasonable belief concerning the level of danger he faced or the need to resort to fatal force, he was entitled to have [***23] the jury consider his subjective state of mind.  The difficulty with that argument is that there is not a scintilla of evidence concerning the beliefs actually entertained by the person who shot Bucino.  As we pointed out above, the defendant has the burden of presenting some evidence sufficient to reasonably generate the issue.  The issue in this instance involved the honestly held subjective feelings of the perpetrator at the moment of the shooting. When the defendant maintains that he was not the perpetrator, this becomes a very difficult, though probably not [*555] impossible, n4 burden to meet.  In this case, the defendant did not meet that burden.

n4 See the discussion in Lambert v. State, 70 Md.App. 83, 98, 519 A.2d 1340 (1987).

   III

   Evidence of Victim's Prior Conduct

   Harkness, one of the two Navy men who was present at the 602 Club on the night of the shooting, testified on direct examination that he had seen Bucino at the 602 Club, and had seen him earlier in the evening, [***24] at about 5 or 6 p.m., at the Tack Room.  He said, "[t]he reason he stuck in my mind was because he was a little bit rowdy at the last place I'd seen him."£ On cross-examination, when defense counsel began to ask about events at the Tack Room, the prosecutor objected and requested a bench conference.  The trial judge instructed defense counsel to state what he intended to ask the witness concerning the earlier events, and counsel replied "I'm going to ask him if [Bucino] got thrown out."£ He explained that he wished thereby to show that Bucino was "drunk and intoxicated and unruly that night."£ The prosecutor questioned the probative value of the proposed testimony, and argued that "you [can] be drunk and unruly in one place and then nice in another."£ The trial judge sustained the objection.

   The ruling was not error.  The defendant was attempting to show that because Bucino was rowdy at one bar at 5 p.m. or 6 p.m. in the evening, it was likely that he was also rowdy later in the evening at another bar. n5£ The inferential value of proof of the existence of a condition at one point in [*556] time to prove its existence at a later point of time depends on a variety of circumstances. [***25] 

   When the existence of an object, condition, quality, or tendency at a given time is in issue, the prior existence of it is in human experience some indication of its probable persistence or continuance at a later period.

   The degree of probability of this continuance depends on the chances of intervening circumstances having occurred to bring the existence to an end.  The possibility of such circumstances will depend almost entirely on the nature of the specific thing whose existence is in issue and the particular circumstances affecting it in the case in hand.  That a soap-bubble was in existence half-an-hour ago affords no inference at all that it is in existence now; that Mt. Everest was in existence ten years ago is strong evidence that it exists yet; whether the fact of a tree's existence a year ago will indicate its continued [**1325] existence today will vary according to the nature of the tree and the conditions of life in the region.  So far, then, as the interval of time is concerned, no fixed rule can be laid down; the nature of the thing and the circumstances of the particular case must control.  (Emphasis in original.)
 
2 Wigmore on Evidence § 437 (3d ed. [***26] 1940).

n5 The defendant does not argue that he was attempting to show the turbulent and dangerous nature of the victim in conjunction with a claim of self-defense. See Williamson v. State, 25 Md.App. 338, 345, 333 A.2d 653, cert. denied, 275 Md. 758 (1975). In any event, from what we have said it is clear that the defendant did not lay a proper foundation of evidence tending to show that he acted in self-defense.

   In Hammond v. Inloes, 4 Md. 138, 172 (1853), our predecessors held that "where seisen of an estate has been shown its continuance will be presumed."£ And, in Stitzel v. Kurz, 18 Md.App. 525, 538, 308 A.2d 430, cert. denied, 269 Md. 761 (1973), the Court of Special Appeals held that evidence concerning the condition of a road sign was properly admitted:

   When it is shown that a condition existed at a certain time, and the condition is one which by its nature is relatively permanent, rather than transitory or changeable, it is rational to infer that the same condition existed before and after the time shown, for a length of time reasonably consistent with the circumstances, unless [*557] there is evidence from which a change in the condition could reasonably be inferred.
 
In dealing with conditions more likely to change, however, this Court has recognized that evidence of the earlier condition may not have sufficient probative value to be admissible.  In Transit Company v. Metz, 158 Md. 424, 453, 149 A. 4, (1930) appeal dismissed, 282 U.S. 801, 51 S.Ct. 40, 75 L.Ed. 720 (1929), [***27] the Court held that evidence of the manner in which a truck was driven when it passed a detour about 1,000 yards from the place of the accident was properly excluded.  In Reid v. Humphreys, 210 Md. 178, 185, 122 A.2d 756 (1956), the Court found no error in the exclusion of evidence of the speed of a vehicle just prior to the accident, but one and one-half miles distant therefrom, saying:

   Generally, the admissibility of testimony as to the speed or reckless operation of a motor vehicle at some distance from the place where it afterwards collided with another vehicle is discretionary with the trial court, and a ruling admitting such evidence will not be disturbed on appeal in the absence of a clear abuse of discretion.
 
To the same effect, see Bennett v. Bass, 248 Md. 260, 266, 235 A.2d 715 (1967) (speed of vehicle at various points ranging from one and one-half miles to six blocks from scene of accident properly excluded).

   The defendant did not proffer any facts that Harkness might have been able to add to his previous testimony that Bucino had been "a little bit rowdy."£ He did not proffer that Harkness had knowledge [***28] that Bucino had "been thrown out" of the Tack Room, or if so, that Harkness knew what Bucino had done that may have brought about his ejection.  He did not proffer that Harkness was able to offer an opinion concerning the Bucino's sobriety when he saw him earlier. Given these circumstances, and considering the inherent impermanence of the condition that Sims sought to show by earlier conduct, we cannot say the trial judge abused his discretion in excluding the evidence.

   JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED; COSTS TO BE PAID BY PETITIONER. 

Florine HARVEY et al. v. Clarice WILLIAMS 
No. 106, September Term, 1989
 
Court of Appeals of Maryland
 
319 Md. 238; 572 A.2d 149; 1990 Md. LEXIS 56

 April  12, 1990

   SUBSEQUENT HISTORY: [***1] As Corrected April 27, 1990.

PRIOR HISTORY:  
Certiorari to Court of Special Appeals, (Circuit Court for  Anne Arundel  County), James C. Cawood, JUDGE.

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED; COSTS TO BE PAID BY PETITIONER.

CORE TERMS:  withdrawal, writ of certiorari, one-third, admit, issuance, conclusively, paternity, married, conclusive, fray, refusing to permit, marriage ceremony, subject property, deemed admitted, died intestate, real property, seven-twenty-fourths, granddaughter, one-twelfth, prescribes, partition, declares, battle, widow, worry, heir, died

COUNSEL: James D. McCarthy, Jr., Severna Park, Maryland, Morton Edelstein, Baltimore, Maryland, both on brief, for petitioners.

   Leonard A. Orman, Baltimore, Maryland, for respondent.

JUDGES: Murphy, C.J., and Eldridge, Rodowsky, McAuliffe, Adkins, Chasanow and Charles E. Orth, Jr., Judge of the Court of Appeals of Maryland (retired), Specially Assigned, JJ.

OPINIONBY: ORTH, JR.

OPINION: [*239] [**150] I

   The battle which this case provoked was joined on 14 September 1984 when Clarice Williams filed a complaint in the Circuit Court for Anne Arundel County. She sought the sale of a certain piece of real property in lieu of partition and requested that the residue of the proceeds after the payment of expenses be divided among the owners [*240] of the property according to their respective shares.  The battle ended at the nisi prius level on 14 June 1988 when the court rendered a final judgment.  The court ordered that the property be sold as one parcel.  It decreed, "[t]he rights, shares and interests" in the property [***2] to be as follows:
  
(a) Clarice Williams owns one-third;
 
(b) Elmer McDonald owns one-twelfth;
 
(c) Florine Harvey owns seven-twenty-fourths;
 
(d) Martha McDonald Johnson owns seven-twenty-fourths.
 
The court further ordered that "[t]he proceeds of such sale shall be distributed unto the above-listed parties in accordance with this proportional interest as found herein less the cost of sale and court costs," but that "any parties who paid taxes [were] entitled to reimbursement from any proceeds."

   Harvey and Johnson appealed from the judgment.  McDonald was apparently content with his one-twelfth. He did not appeal, thereby withdrawing from the fray, and has not been heard from since.  The Court of Special Appeals affirmed the judgment.  Harvey v. Williams, 79 Md.App. 566, 558 A.2d 756 (1989). At that point, it seems that Johnson had enough.  She left the field of battle, neither filing nor joining in a petition for a writ of certiorari. The only party who sought our review was [**151] Harvey.  We granted her petition for the issuance of a writ of certiorari and ordered that the records and proceedings be certified to us.  Thus, the only parties before us [***3] are Harvey and Williams.  Williams, of course, had sought the judgment in the trial court, fought against its reversal in the Court of Special Appeals, and now beseeches us to sustain it.  Johnson and McDonald have surrendered.  What they admitted or denied and what they did or did not do, while they were still active in the fray, are of no moment in this final skirmish.  It is true that Harvey will carry them with her in victory or defeat, but she alone shoulders the burden at this point.  In [*241] short, Johnson and McDonald have no voice, past or present, in the proceedings before us. n1

n1 The brief submitted to us, purporting to be that of "appellants," bears not only the name of Harvey's attorney but also the name of Johnson's attorney. As we have noted, Johnson was a party to the appeal before the Court of Special Appeals, but she did not petition us for the issuance of a writ of certiorari and is not a party to the proceedings before us.

   II

   Harvey's petition presented only one question:

   Did the Court [***4] of Special Appeals ignore the clear language of Section 1-201 of the Estates and Trusts article of the Annotated Code of Maryland and, therefore, err in holding that [Harvey's] admission that [Williams] was the child of [Williams'] Father thereby rendered the provisions of Section 1-208(b) of the Estates and Trusts article moot and of no legal effect?
  
We granted the petition as submitted.  However, Harvey's brief ignores the question as presented in her petition, and, in lieu thereof, substitutes four questions:

   1. Did the Circuit Court and the Court of Special Appeals err in giving de jure effect (conferring inheritance rights on the Appellee, Clarice Williams) to a de facto admission of the Appellee's paternity contrary to the provisions of Section 1-208 of the Estates and Trust Title of the Maryland Code?

   2. Did the trial court err or abuse its discretion in refusing to permit the defendants to withdraw an admission of fact which was deemed admitted only because the defendants had failed to deny the requested admission in a timely manner?

   3. Did the trial court err or abuse its discretion in refusing to permit the defendants to introduce evidence concerning the ancestry [***5] and legitimacy of the plaintiff?

   4. Did the trial court err in holding or concluding that the plaintiff's requested admissions of fact were sufficient [*242] to prove that she had an interest in the real property and in accepting as an admission of fact that which should be considered an issue of law?
 
These questions are not properly before us, and we decline to address them. Md.Rule 8-303(b)(6); Huger v. State, 285 Md. 347, 354, 402 A.2d 880 (1979). n2

n2 Once again we are constrained
 
to remind all hands that [our Rules] are not guides to the practice of law but precise rubrics "established to promote the orderly and efficient administration of justice and [that they] are to be read and followed."
 
Isen v. Phoenix Assurance Co., 259 Md. 564, 570, 270 A.2d 476 (1970), quoting Brown v. Fraley, 222 Md. 480, 483, 161 A.2d 128 (1960). See Robinson v. Bd. of County Comm'rs, 262 Md. 342, 346, 278 A.2d 71 (1971). Attorneys practicing in the courts of this State flout the rules adopted by this Court at their peril. They must assure that they are cognizant of our rules.  They may not ignore the rules and proceed according to their personal convenience and preference without suffering the consequences.

[***6]

   III

   A

   On 14 February 1985, in a pretrial foray, Williams filed a request for admission of facts pursuant to Md.Rule 2-424(a).  Paragraph (2) of the request called for the defendants to admit:
  
That John Timothy Thomas died on or about January 20, 1916, intestate, leaving as his sole heirs at law, his widow, Edna Thomas and a son, James Edward Thomas. The widow, Edna Thomas, intermarried [**152] with Mr. Melton, who died on or about July 17, 1962, in Philadelphia, Pennsylvania.  The son James Edward Thomas died intestate, on or about May 14, 1935, leaving one child, Clarice Williams, Plaintiff, who is the great-granddaughter of John Timothy Thomas, granddaughter of Edna Thomas.  Edna Thomas (Melton) died intestate in Philadelphia, Pennsylvania, on January 17, 1983, leaving Clarice Williams as her only heir at law who has now inherited 1/3 [*243] of the subject property previously owned by her great-grandfather, John Timothy Thomas (emphasis added).
 
Harvey did not answer the request until 7 June 1985.  Rule 2-424(b) prescribes, in pertinent part:
 
Each matter of which an admission is requested shall be deemed admitted unless, within 30 days after service of the request or [***7] within 15 days after the date on which that party's initial pleading or motion is required, whichever is later, the party to whom the request is directed files a response signed by the party or the party's attorney.
 
Harvey's untimely n3 answer to the second paragraph of the request for admission of facts read:
 
That she does not admit the allegations of fact in paragraph 2 of the Request because the Defendant is reasonably certain that John Timothy Thomas was never married to Edna Thomas.  The Defendant knew the person referred to in the Pleadings as Edna Thomas and said person was always known to the defendant as Edna Coates and later as Edna Coates Melton.  In addition, James Edward Thomas was never married to the Plaintiff's mother.  The last clause of this request contains a conclusion of law which the Defendant will not admit.

n3 See note 2, supra.

   B

   On 10 June 1985 the court conducted a hearing.  The court deemed that two matters were before it: (1) whether Williams had an interest in the [***8] property, and (2) whether the property was subject to partition. As we have seen, the request for admission of facts called for the admission that Williams was the only child of James Edward Thomas, and that as such, was entitled to a one-third interest in the subject property. Harvey's attorney, who had entered the case two weeks before the hearing, asked the court for "an extension of time to respond to the Request for Admission of Facts nunc pro tunc."£ The court treated this request as [*244] a motion to withdraw pursuant to Md.Rule 2-424(d), which declares:

    Any matter admitted under this Rule is conclusively established unless the court on motion permits withdrawal or amendment.
 
The judge denied the motion, citing Murnan v. Joseph J. Hock, Inc., 274 Md. 528, 534, 335 A.2d 104 (1975), to the effect that "if there is no withdrawal permitted by the court, then the facts set forth therein are conclusive and should be accepted by the court."£ The judge explained:

   Now, of course, Rule 2-424 is put in for a very valid purpose.  Sometimes it's not terribly easy to prove things and one of the methods of doing that is to request an admission [***9] because party on the other side has some burden of denying this and frequently doesn't deny things which are obvious but which require difficulty to prove.  It also can be used as a discovery tool in the sense that if you don't answer it, then I don't have to worry about it.  I can go ahead with my case and not worry about getting into any possible defenses that you may have with regard to all of that.  It does require that the Answers be made within thirty days. . . .

   [S]o the facts stand as admitted unless we permit withdrawal. The Rule is that "any matter admitted under this Rule is conclusively established unless the court on motion permits withdrawal or amendment.  The court may permit withdrawal or amendment if the court finds it would assist the presentation of the merits of the action and the party who obtained [**153] the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining the action or defense on the merits. . . .

   Now the two requests here that were made, one was the request that [Williams] was in fact I think the granddaughter of the original owners here as best I can read the Request for Admissions or get the facts out [***10] of them. . . .

   [*245] With regard to that request, there was no answer to it.  I think that's a clear request for a fact and I think that that certainly could and should have been raised long before.  Obviously [there was] nothing that [McDonald's present attorney] could do, he didn't get in the case until the 23rd of May, but the party was in the case, that could have been raised.  There's nothing in here that even comes close to raising it.  I think the Rule has validity, and I think we're going to have the Rules to have some validity, well, we have to admit exceptions to them at certain times, we at least ought to recognize the Rule and give effect to it, and I'm going to . . . deny the request to . . . object to that admission.
 
As we have seen, the propriety of this denial is not before us.  So, by the failure to file a timely answer to the request, the fact that Williams was the child of James Edward Thomas and was, therefore, entitled to a one-third interest in the property stood admitted. n4£ The matter of the interest of Williams was settled, at the trial level, once and for all.  This was confirmed in an opinion of the judge issued 25 January 1988 in which he declared, [***11]"We have already determined that [Williams] is the owner of a one-third share [in the property]."£ And, as we have seen, the final order of 14 January 1988 was in accord.  The adherence of the judge to our rule was not an abuse of discretion.

 n4 The question of divisibility in kind was left open, to be the subject of another hearing.

   IV

   Harvey argues that, even though she is deemed to have admitted that Williams was the child of James Edward Thomas, this was not conclusive. Harvey urges that further proof was required as called for by Md.Code (1974), § 1-208(b) of the Estates and Trusts Article, in the light of § 1-201 of that Article.  Section 1-208(b) prescribes the circumstances in which "[a] child born to parents who have not participated in a marriage ceremony with each other [*246] shall be considered to be the child of the father. . . ."£ Section 1-201 declares:

   In the absence of express language to the contrary, the rules of construction contained in this subtitle [2, designated "Determining Relationship"] [***12]shall be applied in construing all provisions of the estates of decedents law and the terms of a will.
 
We agree that the language of these sections is clear, as asserted by Harvey, but it is equally clear that their provisions are inapplicable here.  It is plainly and simply not necessary to resort to the circumstances set out in § 1-208(b) under which an illegitimate child shall be considered to be the child of a putative father when the party contesting the paternity admits that the alleged father is in fact the father.  Whether Williams was born in or out of wedlock is of no matter.  A man may beget a child outside the bonds of marriage. Paternity is not dependent upon a marriage ceremony. To say that a man is not the father of a child merely because he was not married to the mother is oxymoronic.  By failing to comply with Rule 2-424(b), Harvey was conclusively deemed to have admitted that James Edward Thomas was the father of Williams.  As the trial judge found, the failure took Harvey out of court on the issue, and, in the circumstances here, she carried Johnson, who did not seek review by way of certiorari, and McDonald, who did not appeal, with her.

   The answer to the [***13] question presented in Harvey's petition for the issuance of a writ of certiorari is "no," the Court of Special Appeals did not err in holding that Harvey admitted the parentage of Williams.  Sections 1-201 and 1-208(b) of the Estates and Trusts Article are not applicable.

   [**154] JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED; COSTS TO BE PAID BY PETITIONER. 

B & K RENTALS AND SALES CO., INC. v. UNIVERSAL LEAF TOBACCOCO., et al. 
No. 23, September Term, 1988
 
Court of Appeals of Maryland
 
319 Md. 127; 571 A.2d 1213; 1990 Md. LEXIS 50

 April  9, 1990

   PRIOR HISTORY: [***1]  
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 REVERSED, AND CASE REMANDED TO THE COURT OF SPECIAL APPEALS FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  COSTS IN THIS COURT TO BE PAID BY RESPONDENTS. COSTS IN THE COURT OF SPECIAL APPEALS TO ABIDE THE RESULT.

CORE TERMS:  notice of appeal, new trial, judgment notwithstanding, final judgment, notices of appeal, designate, amend, appealable judgment, limiting language, speedy trial, appealable, reconsideration, notice, entry of judgment, appealable order, surplusage, designated, incorrect, recited, dictum, Federal Rules, Maryland Rule, specify, Maryland Rules, liberally construed, report required, earlier opinion, designation, prehearing, appealing

COUNSEL: Leland S. Van Koten (Parks, Hansen & Ditch, Towson, Maryland and Georgia L. Lewis of Baltimore, Maryland), all on brief, for petitioner.

   Albert D. Brault (Janet S. Zigler and Brault, Graham, Scott & Brault, Rockville, Maryland), all on brief, for respondent.

JUDGES: Murphy, C.J., and Eldridge, Cole, Rodowsky, McAuliffe, Adkins and Blackwell, * JJ.

* BLACKWELL, 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: [*128] [**1214] We granted the petition for a writ of certiorari in this case to review the Court of Special Appeals' holding that the wording of the notice of appeal had limited the issues on appeal.
 
   The facts relevant to the procedural issue before us can be briefly stated. B [***2] & K Rentals and Sales Co., Inc., brought this action in the Circuit Court for Anne Arundel County seeking to recover damages for losses resulting from a fire.  The fire was allegedly caused by the negligence of the defendants Universal Leaf Tobacco Co. and others. n1£ Both at the close of the plaintiff's case, and at the close of all of the evidence, the trial court denied Universal's motion for a directed verdict and allowed the case to go to the jury.  The jury returned a verdict for the plaintiff B & K Rentals in the amount of $123,252.00.

n1 Hereinafter collectively referred to as Universal.

   On January 19, 1987, the trial court granted Universal's motion for judgment notwithstanding the verdict and entered judgment for the defendants for costs. Within ten days, on January 28, 1987, B & K Rentals filed a "Motion [*129] for Reconsideration and Motion for New Trial," seeking reconsideration of the judgment notwithstanding the verdict and seeking a new trial under Maryland Rule 2-533.  The circuit court, on February [***3] 17, 1987, entered an order that "both motions be and the same are hereby denied."

   Thereafter B & K Rentals filed a timely notice of appeal which stated:

   "It is respectfully requested that you enter an appeal to the Court of Special Appeals on behalf of B & K Rentals & Sales Co., Inc., Plaintiff, from this Court's Order denying Plaintiff's Motion for Reconsideration and Motion for New Trial, entered in this action on February 17, 1987."
 
In its brief in the Court of Special Appeals, B & K Rentals argued that the circuit court's ruling on the motion for judgment notwithstanding the verdict was erroneous.  B & K Rentals specifically contended, based upon the evidence, that the jury properly determined that the fire resulted from the defendants' negligence and that the defendants were liable.  B & K Rentals also claimed that the circuit judge had committed various errors during the trial.  B & K Rentals sought a new trial limited to damages.

   The Court of Special Appeals, however, refused to consider any of the matters raised by B & K Rentals in its brief.  B & K Rentals v. Universal Leaf, 73 Md.App. 530, 535 A.2d 492 (1988). The intermediate appellate [***4] court agreed with Universal's argument that the notice of appeal, by appealing from the order entered February 17, 1987, and not specifically "appeal[ing] the judgment of 19 January 1987," had limited the scope of the appeal.  73 Md.App. at 535, 535 A.2d at 495. The Court of Special Appeals relied upon the following dictum from its earlier opinion in Shipp v. Autoville Ltd., 23 Md.App. 555, 560 n. 4, 328 A.2d 349 (1974), cert. denied, 274 Md. 725 (1975):
 
"'We think that if there are two or more appealable judgments in a cause, an appellant designating one would be bound by the designation.'"£ 73 Md.App. at 535, [*130] 536-537, 535 A.2d at 495, 496. n2
 
In the present case the Court of Special Appeals took the position that, if the appellant [**1215] desired to appeal from the "judgment," the appellant designated an incorrect order in the notice of appeal. The appellate court thus stated: "This appeal from the denial of the 'motion to reconsider' the judgment does not serve as an appeal from the judgment," 73 Md.App. at 537, 535 A.2d at 496. The [***5] court held that "the only question before this Court is whether the trial judge abused his discretion in denying the 'motion for reconsideration' and the motion for new trial."£ 73 Md.App. at 534, 535 A.2d at 494. Concluding that the trial court had not abused its discretion, the Court of Special Appeals affirmed.

n2 This statement from a footnote in Shipp had no relationship to the facts or issue in Shipp and, as indicated above, was pure dictum. Moreover, as a broad unqualified proposition, the Shipp dictum is erroneous.  For example, an appeal from the final judgment in a case ordinarily brings up for appellate review an earlier appealable order in the case.  See, e.g., Vogel v. Grant, 300 Md. 690, 701, 481 A.2d 186 (1984); Carbaugh v. State, 294 Md. 323, 328, 449 A.2d 1153 (1982).

   Thereafter this Court granted B & K Rentals' petition for a writ of certiorari which presented the following single issue: "Is the [***6] Court of Special Appeals precluded from considering the propriety of the underlying decision on the merits solely because [the notice of appeal] designates, as the judgment appealed from, the decision of the trial court upon timely post-trial motions, where such judgment is the final decision rendered by the trial court in the case . . .?"£ We shall answer the question in the negative and reverse. In our view, the Court of Special Appeals' decision is erroneous for two reasons.

   (1)

   B & K Rentals did not designate an incorrect order as the final appealable "judgment" in the case.  Contrary to the position of the Court of Special Appeals, this is not a case where "'there are two or more appealable judgments in a cause'" and the appellant designated only one of them.  [*131] Under the applicable rules and case law, the order designated in B & K Rentals' notice of appeal became the only final appealable order in the case.

   If nothing had been done in the circuit court after January 19, 1987, the January 19th entry of judgment for the defendants for costs, pursuant to the court's direction, would have been the final appealable judgment in this case. See, e.g., Maryland Rule 2-601; [***7] Rohrbeck v. Rohrbeck, 318 Md. 28, 41-42, 45-46, 566 A.2d 767 (1989); Doehring v. Wagner, 311 Md. 272, 275-276, 533 A.2d 1300 (1987); Walbert v. Walbert, 310 Md. 657, 661, 531 A.2d 291 (1987); Houghton v. County Com'rs of Kent Co., 307 Md. 216, 221-222, 513 A.2d 291 (1986), and cases there cited.  The subsequent motions filed by B & K Rentals, however, deprived the January 19th judgment of its finality for appeal purposes. 

   Rule 2-533 provides, inter alia, that a party whose verdict has been set aside on a motion for judgment notwithstanding the verdict may file a motion for a new trial within ten days after entry of the judgment notwithstanding the verdict. n3£ Rule 2-534 states that a motion to alter or amend a judgment, based on a court decision, may be filed within ten days of the judgment, and may be joined with a motion for a new trial. n4£ The two motions filed by B & K [*132]Rentals on January 28, 1987, were timely motions pursuant to Rules 2-533 and 2-534.  Rule 8-202(c) provides, inter alia, that when a timely motion is filed pursuant to [***8] Rules 2-533 or 2-534, the notice of appeal shall be filed within 30 days after the denial or disposition of the motions. n5

n3 Rule 2-533 states in pertinent part as follows:

   "Rule 2-533.  MOTION FOR NEW TRIAL

   (a) Time for Filing.  -- Any party may file a motion for new trial within ten days after entry of judgment. A party whose verdict has been set aside on a motion for judgment notwithstanding the verdict or a party whose judgment has been amended on a motion to amend the judgment may file a motion for new trial within ten days after entry of the judgment notwithstanding the verdict or the amended judgment."

   * * *
n4 Rule 2-534 reads as follows:

   "Rule 2-534.  MOTION TO ALTER OR AMEND A JUDGMENT -- COURT DECISION

   In an action decided by the court, on motion of any party filed within ten days after entry of judgment, the court may open the judgment to receive additional evidence, may amend its findings or its statement of reasons for the decision, may set forth additional findings or reasons, may enter new findings or new reasons, may amend the judgment, or may enter a new judgment.  A motion to alter or amend a judgment may be joined with a motion for new trial."
[***9] 

n5 Rule 8-202(c) states:

   "(c) Civil Action -- Post Judgment Motions.  -- In a civil action, when a timely motion is filed pursuant to Rule 2-532, 2-533, or 2-534, the notice of appeal shall be filed within 30 days after entry of (1) a notice of withdrawing the motion or (2) an order denying a motion pursuant to Rule 2-533 or disposing of a motion pursuant to Rule 2-532 or 2-534.  A notice of appeal filed before the withdrawal or disposition of any of these motions does not deprive the trial court of jurisdiction to dispose of the motion."

   [**1216] Consequently, "when a motion to alter or amend an otherwise final judgment [or a motion for a new trial] is filed within ten days after the judgment's entry, the judgment loses its finality for purposes of appeal."£ Unnamed Atty. v. Attorney Griev. Comm'n, 303 Md. 473, 486, 494 A.2d 940 (1985). See Yarema v. Exxon Corp., 305 Md. 219, 241 n. 19, 503 A.2d 239 (1986); Sieck v. Sieck, 66 Md.App. 37, 42-44, 502 A.2d 528 (1986); Committee Note to Rule 8-202(c).  Under [***10] Rule 8-202(c), the order which was final in this case, and from which the time for appeal ran, was the order of February 17, 1987, denying both of B & K Rentals' motions.  Being final, the February 17th order was a "judgment." n6£ It was the only final appealable judgment in the case.

n6 Rule 1-202(m) defines "Judgment" as follows:
 
"'Judgment' means any order of court final in its nature entered pursuant to these rules."

   Moreover, the appeal from the February 17th final judgment subjected the January 19th "judgment" to review on appeal.  It is a long established principle of appellate procedure, now embodied in Rule 8-131(d), that an appeal from a [*133]final judgment ordinarily brings up for appellate review all earlier orders in the case.  See, e.g., Vogel v. Grant, 300 Md. 690, 701, 481 A.2d 186 (1984); Carbaugh v. State, 294 Md. 323, 328, 449 A.2d 1153 (1982); Lewis v. Lewis, 290 Md. 175, 184-185, 428 A.2d 454 (1981); [***11] Montgomery Co. v. Ian Corp., 282 Md. 459, 467-468, 385 A.2d 80 (1978); Wylie v. Johnston, et al., 29 Md. 298, 303 (1868) (explaining the reasons for the principle).  Thus, the Court of Special Appeals plainly erred in holding that an appeal from the February 17, 1987, order did "not serve as an appeal from the" January 19, 1987, order.

   Unlike Rule 3(c) of the Federal Rules of Appellate Procedure and many rules in other states, Maryland Rule 8-202 does not require that a notice of appeal specify the judgment or order appealed from.  Nevertheless, neither reason nor authority supports the view that a recital in the notice of appeal of the order constituting the only final appealable judgment in the case somehow limits the scope of the appeal.  As discussed in part (2) below, the cases have regularly held that the specification in the notice of appeal of an incorrect order as the final appealable judgment does not limit the issues on appeal.  In light of this, the mere recitation of the correct final appealable order obviously should not limit the issues on appeal.

   (2)

   As mentioned above, the current Maryland Rules do not require [***12] that a notice of appeal designate the order or judgment from which the appeal is taken.  In fact, the present and prior rules of procedure in this State have not regulated the content of a notice of appeal or an "order for appeal" as it was formerly called.  Therefore, Maryland cases usually have construed notices of appeal liberally and have ignored limiting language in notices of appeal, deeming it surplusage. The cases have taken the position that the purpose of a notice or order of appeal is not to designate or limit the issues on appeal. Instead, the designation of issues on appeal is a function of the information report [*134] required by Rule 8-205, the prehearing conference under Rule 8-206(b), and the briefs.  See generally, e.g., Newman v. Reilly, 314 Md. 364, 382-388, 550 A.2d 959 (1988); MPTH Assoc. v. St. Dep't of Assess., 302 Md. 319, 328 n. 6, 487 A.2d 1184 (1985); Institutional Mgt. v. Cutler Computer, 294 Md. 626, 628-633, 451 A.2d 1224 (1982); Williams v. Dawidowicz, 209 Md. 77, 82, 120 A.2d 399 (1956); Christy v. Hammond, 161 Md. 139, 144, 155 A. 322 (1931); [***13]Sweeney v. Trust Co., 144 Md. 612, 622, 125 A. 522 (1924); Anderson v. Stewart, 108 Md. 340, 346-348, 70 A. 228 (1908); Lowenthal v. Rome, 57 Md.App. 728, 738, 471 A.2d 1102, cert. denied, 300 Md. 153, 476 A.2d 722 (1948); [**1217] Joppa Sand & Gravel Corp. v. L. Epstein & Sons, Inc., 39 Md.App. 34, 43, 382 A.2d 1086 (1978); Johnson-Bey v. Reiger, 32 Md.App. 299, 306, 360 A.2d 457, 461, cert. denied, 278 Md. 725 (1976).

   For example, in Institutional Mgt. v. Cutler Computer, supra, the trial judge made certain rulings in an oral opinion delivered on December 3, 1980, and final judgments in the case were entered on December 9, 1980.  Within thirty days after the entry of final judgments, the appellant filed an order for appeal which specified that the appeal was being taken from the rulings on December 3, 1980.  The Court of Special Appeals dismissed the appeal on the ground that it was not taken from the final judgments.  This Court, however, reversed, [***14]saying (294 Md. at 630, 451 A.2d at 1226):

   "This Court and the Court of Special Appeals have both recognized that when an order for appeal is timely filed subsequent to the entry of a final judgment, an appellate court has jurisdiction.  It must entertain the appeal even though the text of the order for appeal indicates that the appeal is taken from something other than a final judgment."

   A similar situation was presented in Sweeney v. Trust Co., supra. There, a timely order for appeal was filed after the final decree in the case. Nevertheless, the order for appeal recited that the appeal was taken from an earlier opinion of the trial court.  In overruling the appellee's [*135] motion to dismiss, this Court stated that "we think the appeal should be regarded as having been taken from the decree," 144 Md. at 622, 125 A. at 526.

   This general issue was considered very recently by the Court in Newman v. Reilly, supra. There the circuit court had entered, as sanctions, separate money judgments against the plaintiff and the plaintiff's attorney.  The order [***15]for appeal, however, recited that the appeal was being taken by the plaintiff from the "judgment," with the latter word being in the singular and with no mention of the attorney.  In rejecting the Court of Special Appeals' position that the issues on appeal did not encompass the judgment against the attorney, Judge Rodowsky for the Court reviewed the Maryland law in this area (314 Md. at 383, 550 A.2d at 968-969):

   "The Maryland Rules do not regulate the content of an order for appeal to the Court of Special Appeals.  When the subject order was filed, the governing rule was former Rule 1011.a which provided that an appeal to the Court of Special Appeals 'shall be taken by filing an order for appeal with the clerk of the lower court[.]'£ Current Rule 8-201(a) is similarly silent concerning content of the order for appeal.  In civil cases the judgments and rulings complained of by an appellant are not required to be identified until the filing of the information report required by Rule 8-205 or the filing of the appellant's brief.  By contrast, Federal Rules of Appellate Procedure, Rule 3(c), requires that

   '[t]he notice of appeal shall specify the party [***16] or parties taking the appeal; shall designate the judgment, order or part thereof appealed from; and shall name the court to which the appeal is taken. . . .  An appeal shall not be dismissed for informality of form or title of the notice of appeal.'
 
"Inasmuch as the Maryland rule does not by its terms require that the body of the order for appeal identify the party appealing or the judgment appealed from, the limitation on the scope of this appeal applied by the Court of [*136] Special Appeals rests on language gratuitously included in the body of the order.  If Zerivitz had signed, as attorney for the plaintiff, a paper reading, 'Please note an appeal to the Court of Special Appeals' and the paper were filed within thirty days of the entry of the sanctions judgments, the legal effect would have been to bring up for appellate review all appealable judgments in the case."
 
The Newman opinion then held (314 Md. at 386, 550 A.2d at 970):

   "Viewed in this light, the order for appeal in the instant case does not operate to exclude Zerivitz.  Our cases, and [**1218] those of the Court of Special Appeals, have generally been quite liberal in construing [***17] timely orders for appeal."
 
Judge Rodowsky in Newman went on to discuss several earlier cases in this Court and in the Court of Special Appeals where limiting language in orders for appeal was treated as inadvertent or surplusage. He then continued (314 Md. at 387-388, 550 A.2d at 971):

   "The philosophy of these cases is also reflected in the Notes of the Advisory Committee on the Federal Rules of Appellate Procedure, 1979 Amendment, Note to Rule 3, subdivision c:
 
'Because of the fact that the timely filing of the notice of appeal has been characterized as jurisdictional . . . it is important that the right to appeal not be lost by mistakes of mere form.  In a number of decided cases it has been held that so long as the function of notice is met by the filing of a paper indicating an intention to appeal, the substance of the rule has been complied with.'"

   In other jurisdictions as well, including those where the content of notices of appeal is regulated by rule, courts do not construe notices of appeal so as to limit the issues on appeal.  See, e.g., Dawdy v. Sample, 178 Ill.App.3d 118, 127 Ill.Dec. 299, 306, 532 N.E.2d 1128, 1135, [***18] pet. denied, 125 Ill.2d 564, 130 Ill.Dec. 479, 537 N.E.2d 808 (1989) ("Notices of appeal are liberally construed. The notice of appeal [*137] informs the prevailing party that the unsuccessful party is seeking review of the judgment.  Briefs specify the precise points relied upon for reversal"); James v. Brumlop, 94 N.M. 291, 609 P.2d 1247, 1249 (N.M.App.), cert. denied, 94 N.M. 674, 615 P.2d 991 (1980) ("notices of appeal, even where technically defective, should be liberally construed to allow consideration of the merits of the appeal where they disclose the intention to appeal"); Kelly v. Kelly, 371 N.W.2d 193, 195 (Minn.1985); Maritime Mfrs., Inc. v. Hi-Skipper Marina, 70 Ohio St.2d 257, 436 N.E.2d 1034, 1035 (1982).

   A decision of this Court which appears to be out of step with the above-discussed principles and cases is Carter v. State, 286 Md. 649, 408 A.2d 1335 (1979). The Court of Special Appeals relied on Carter in reaching its decision in the present case.  Carter was a [***19] criminal case in which various issues were raised at trial, including whether the defendant's right to a speedy trial had been infringed.  After conviction and sentence, the defendant filed a timely order for appeal which recited that the appeal was "'on the constitutional question relating to Speedy Trials,'" Carter v. State, supra, 286 Md. at 651, 408 A.2d at 1336. In his briefs, however, the defendant did not raise a speedy trial issue; instead he argued various other matters.  Concluding that the order for appeal had limited the issues on appeal to those pertaining to a speedy trial, and that the failure to brief any speedy trial issues resulted in their waiver or abandonment, this Court ordered that the defendant's appeal be dismissed.  286 Md. at 651-652, 408 A.2d at 1336-1337.

   The Carter case is distinguishable from the present case and from the other cases in this Court which we have previously discussed.  The limiting language in the Carter order for appeal was very specific and clearly related to only one substantive legal issue.  The decision in Carter, even if correct, clearly does not support the [***20] Court of Special Appeals' position in the present case.

   [*138] Nevertheless, the Carter decision does appear to be inconsistent with the principles that limiting language in a timely notice of appeal will be treated as surplusage, and that the delineation of the issues on appeal is a function of the briefs, information report and prehearing conference, rather than of the notice of appeal. In order to avoid future confusion, we overrule Carter v. State and any other decisions to the same effect.

   JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED, AND CASE REMANDED TO THE COURT OF SPECIAL APPEALS FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  COSTS IN THIS COURT TO BE PAID BY RESPONDENTS.  [**1219] COSTS IN THE COURT OF SPECIAL APPEALS TO ABIDE THE RESULT. 

Aubrey Ryon PADGETT, Jr. v. STATE of Maryland 
No. 101, September Term, 1989
 
Court of Appeals of Maryland
 
319 Md. 74; 570 A.2d 1226; 1990 Md. LEXIS 46

 March  12, 1990

   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 REVERSED; CASE REMANDED TO THAT COURT WITH DIRECTION TO REMAND THE CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY WITH DIRECTION TO ENTER JUDGMENT IN ACCORD WITH THIS OPINION; COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY ANNE ARUNDEL COUNTY.

CORE TERMS:  probation, fine, defense counsel, jury trial, driving, sentence, intoxicated, prosecutor, designated, dollar, fundamental fairness, volunteer fireman, driving record, business deal, experiencing, installments, answered, supposed, speeding, alcohol, suspend, drinker, arrest, ticket, front

COUNSEL: John L. Kopolow, Assistant Public Defender (Alan H. Murrell, Public Defender, both on brief), both of Baltimore, Maryland, for petitioner.

   Cathleen C. Brockmeyer, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, both on brief), both of Baltimore, Maryland, for respondent.

JUDGES: Eldridge, Cole, Rodowsky, McAuliffe, Adkins and Chasanow, JJ., and Charles E. Orth, Jr., Associate Judge of the Court of Appeals of Maryland (retired) Specially Assigned.

OPINIONBY: ORTH, JR.

OPINION: [*75] [**1226] Aubrey Ryon Padgett, Jr., a resident of Prince George's County, was arrested in Anne Arundel County and charged with driving while intoxicated, driving while under the influence of alcohol, and failing to drive within a single lane.  Upon his demand for a jury trial, the case was transferred from the [***2] District Court of Maryland, sitting in Anne Arundel County, to the Circuit Court for Anne Arundel County.  When the case came on for trial in the circuit court, however, Padgett forwent his right to be judged by his peers and opted for trial by the court.  Although he pleaded not guilty, he agreed to submit the cause on a statement of facts.  The judge accepted this arrangement.  The prosecutor recounted the facts on the record and defense counsel stated that she had "no additions or corrections."£ Whereupon, the judge declared:
 
All right, the Court finds that there's adequate evidence to the reasonable doubt test to make a finding of Guilty of all counts, enter that finding.

   At the punishment stage of the trial, Padgett was afforded the opportunity of allocution.  He was then 47 years of age.  Defense counsel reviewed his background, his education, his business history, his active participation in church affairs, his work as a volunteer fireman for 31 years, his family life (five children, two of whom, 15 and 16 years old, were still living with him and were supported by him -- their mother having died), his volunteer work in the community helping the elderly, and his driving [***3] record for the past 31 years (only one speeding ticket).  She set out the circumstances leading to the current charges.

   On the evening in question, this event occurred on Halloween in 1987, so it's been over a year now since this occurred.  But at that time he was experiencing some [*76] pretty severe financial problems.  His house was up for sale and the settlement fell through.  He had -- he has a business of his own which he's had for approximately fourteen years.

   * * *

   He's had his own business for approximately fourteen years and on the day in question he had a business deal that didn't come through the way it was supposed [**1227] to -- it wasn't even a business deal, he was supposed to make three or four thousand dollars on a job that he did and he didn't do it so that he wasn't in the best frame of mind, we might say.
 
Defense counsel discussed Padgett's reaction to his arrest.

   He's undergone a lot of emotional suffering because this has happened.  As a volunteer fireman he's had plenty of occasions to scrape dead bodies up off the roads in Prince George's and Charles County so he knows what drunk drivers can do.  The fact that he's now finding himself in the position [***4] of having been a drunk driver has been very difficult for him.
 
She observed: "[H]e's dealt with the situation up front all along."£ Padgett had indicated to defense counsel that he was not a regular drinker. "He's what you might refer to as an occasional drinker."£ She said that she represented Padgett in civil matters and has "seen him on many occasions. . . .  I've certainly never seen anything in my dealings with him to indicate otherwise."

   All of this painted a picture of Padgett as a desirable, respected, and contributing member of society.  The prosecutor did not refute or dispute what defense counsel told the judge.  On the contrary, the facts presented by the prosecutor had set out Padgett's cooperation at the time of the arrest:

   He was . . . transported to the barracks.  He was advised of his rights [concerning the alcohol test].  He elected to take a chemical test which was performed in [*77] accordance with all the proper procedures, the results being a .19.

    He was polite and cooperative throughout the proceeding.  He also volunteered before being advised of his Miranda rights that he had been drinking, he had had whiskey and Pepsi and had had three drinks.
 
[***5] Defense counsel requested probation before judgment.  She suggested "that with Mr. Padgett's driving record and his history of never having any problem with alcohol or anything else . . .," probation before judgment "would be appropriate."£ The judge invited the prosecutor to comment.  The only thing he had to say was that he had "agreed not to oppose her request."£ The judge asked Padgett if he had anything to add.  Padgett answered:

   Only that I screwed up and I guarantee that it won't happen again.
 
The judge said:

   All right, I take it that you have a long driving history and that this is something that should be considered, the fact that you have no priors, no prior offense other than the one speeding ticket, and we've all had that experience, I believe, or at least most of us.

   I question why anybody would want to come here and not deal with a case like this somewhere else. n[1]£ Under [*78] the circumstances [**1228] if you agree I'll strike the finding of guilt, place you under -- grant you Probation Before Judgment but I'm going to charge you a thousand dollar fine. Can you pay that today?
 
Padgett answered: "No, sir."£ The judge asked: "How soon can you pay it?"£ After Padgett [***6] and defense counsel conferred off the record, Padgett replied: "Your Honor, it would take me probably at least six months to come up with that."

n1 Earlier in the proceedings, the judge had questioned why the case was in the circuit court.  He asked defense counsel:

   Ma'am, can you tell me why the case is here?
 
Defense counsel said that a jury trial had been demanded because I got into the case and was not able to get discovery and get myself prepared to even determine whether he had any defenses at all.  It was strictly a matter of it was either do that or file a motion for a continuance.
 
The court did not appear to be satisfied with that explanation.  He said:

   Well you know, you said he was being up front. Did he want a jury trial or didn't he want a jury trial?
 
There ensued the following colloquy:

   [DEFENSE COUNSEL]: At that point I recommended to him that he have a jury trial because I was not in a position to evaluate the case to determine whether or not he had any defenses whatsoever.  He did not --
 
   COURT: Well, do you ask for jury trials when you're not prepared to try a case?

   [DEFENSE COUNSEL]: On that occasion I did, Your Honor.  That is not my normal procedure but I did not have enough time to do anything else.  And it appeared to me on the facts as recited to him that there may have been a defense.  The case didn't walk into my office with me evaluating it as though there were absolutely no defense.  While my client was very honest and straightforward with me, as Your Honor well knows from practicing law himself, sometimes clients come in and they say yeah I did it I'm guilty but there may be a defense that you're able to glean from the documents and so forth that you obtain from the State's Attorney.
 
The judge let the matter drop for the moment.  But in the light of what he later said, it seems that he thought that defense counsel's explanation was casuistical.

[***7]

   Up to this point, the proceedings had progressed without untoward incident. What occurred next led to this appeal.  The judge proclaimed:

   Oh, no, I can't hear that.  All right.  Enter a finding of Guilty of "A" Count. n[2]£ Sentence you to six months Detention Center, fine you a thousand dollars, suspend [*79] the finding of -- suspend the detention of six months, place you on five years probation.
 
The judge added:

   All right.  You have the right to appeal.  Your appeal has to be filed within thirty days.  Within ten days of filing the appeal you -- you have to ask the steno for a written transcript or your appeal is defective.
 
Defense counsel said:

   Your Honor, I would like to point out to the Court that -- that Mr. Padgett is still experiencing extreme financial difficulties.  He has not paid me --
 
The judge interrupted:
 
Maybe he is but I -- you're here now, Ma'am, and that's the sentence.

   You're excused.

n2 "A" count charged the offense of driving while intoxicated.

   As we have seen, supra, the judge previously directed the entry of a verdict of guilty on all counts.  The docket entries reflect the verdict as being "Guilty to Warrant 1."£ Charging document # 292827, charged "driving while intoxicated," designated as "A".  It is also so designated on the "Traffic System Citation Information" report, and the "Traffic System Event Information" report.  The "Commitment Record" reflects "guilty" on the charge of driving while intoxicated, and "no verdict" on the other two charges.

[***8]

   Padgett noted an appeal.  The Court of Special Appeals affirmed the judgment. Padgett v. State, No. 1841, September Term, 1988, filed 22 June 1989, unreported.  We granted Padgett's petition for a writ of certiorari.  He questions the propriety of the abrupt change of heart of the circuit court judge.  He asks:

   May probation before judgment be withheld in favor of the entry of a judgment solely because of the defendant's inability to pay a $1,000 fine immediately?

   Maryland Code, Article 27, § 641(a)(1)(i)1 provides, in pertinent part:
 
Whenever a person accused of a crime . . . is found guilty of an offense, a court exercising criminal jurisdiction, if satisfied that the best interests of the person and the welfare of the people of the State would be served thereby, and with the written consent of the person after determination of guilt . . . may stay the entering of judgment, defer further proceedings, and place the person on probation subject to reasonable terms and conditions as appropriate.
 
"The terms and conditions may include ordering the person to pay a fine or pecuniary penalty to the State. . . ."£ Id.

   [*80] The judge was obviously satisfied that [***9] probation before judgment was appropriate in the circumstances and that the best interests of Padgett and the welfare of the people would be served thereby.  Not only did he first so indicate from the bench, but the Order for Probation originally designated that probation was granted before judgment.  The designation was later scratched out.  The order as filed shows the judgment entered.  A six-month sentence was imposed but was suspended with supervised probation for five years upon conditions.  One of the conditions was that Padgett pay a fine of $1,000 (the maximum authorized) and court costs of $130 within six months in such installments as the Maryland Division of Parole and Probation may "determine and direct."

   [**1229] Padgett does not complain about the order to pay the fine and costs.  And he accepts the six months permitted him to comply with the pecuniary payments in such installments as the Maryland Division of Parole and Probation may determine and direct.  After all, the condition was in accord with what Padgett had told the judge he was able to do.  And it evidences that the judge accepted that Padgett could not pay the fine immediately.  Ironically, however, it was because [***10] Padgett told the judge that he could not come up with the fine immediately but could pay it in six months that the judge denied him probation before judgment and insisted on entering a judgment, subjecting Padgett to all the consequences resulting therefrom.

   In the circumstances, Padgett is unhappy with the imposition of a sentence, thereby saddling him with a record.  We have heretofore recognized that "fundamental fairness is essential to the very concept of justice."£ Hook v. State, 315 Md. 25, 41-42, 553 A.2d 233 (1989). See Crawford v. State, 285 Md. 431, 453, 404 A.2d 244 (1979). Under the peculiar circumstances of this case, we believe that what the judge did here and how he did it was fundamentally unfair. The lack of fundamental fairness resulted in an abuse of the discretion bestowed on the judge with respect to the imposition of punishment.  Justice requires that the judgment he [*81] entered be reversed and probation before judgment be awarded.

   JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH DIRECTION TO REMAND THE CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY WITH [***11] DIRECTION TO ENTER JUDGMENT IN ACCORD WITH THIS OPINION; COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY ANNE ARUNDEL COUNTY. 

JOHN WILLIAM STAMM v. MARYLAND DEPARTMENT OFTRANSPORTATION/MOTOR VEHICLE ADMINISTRATION 
No. 157, September Term, 1989
 
Court of Appeals of Maryland
 
318 Md. 641; 569 A.2d 1222; 1990 Md. LEXIS 29
 
 February  16, 1990

   PRIOR HISTORY: [*1] ertiorari to Circuit Court for  Anne Arundel  County, Warren B. Duckett, Jr., Judge.

COUNSEL: Ronald A. Silkworth (Ronald A. Silkworth, P.A.) of Glen Burnie, Maryland, FOR PETITIONER.

   Edward R. K. Hargadon, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General) of Glen Burnie, Maryland, FOR RESPONDENT.

JUDGES: Robert C. Murphy, C.J., Eldridge, Cole, Rodowsky, McAuliffe, Adkins, Chasanow, JJ.

OPINION: PER CURIAM ORDER

   The Court having considered and granted the petition for writ of certiorari in the above entitled case, it is the 16th day of February, 1990

   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 for reconsideration in light of Motor Vehicle Administration v. Thomas Noble Mohler, III, No. 52 and Motor Vehicle Administration v. Kurt Dennis Tritaik, No. 53, both September Term, 1989. 

FRANCINE L. MITTLEMAN et vir v. WILLIAM S. KINSEY et al. 
No. 87, September Term, 1989
 
Court of Appeals of Maryland
 
318 Md. 336; 568 A.2d 34; 1990 Md. LEXIS 7
 
 January  12, 1990

   PRIOR HISTORY: [*1]

   Certiorari to Court of Special (Circuit Court for  Anne Arundel  County) Morris Turk, JUDGE.

COUNSEL: David M. Buffington and H. Thomas Howell (Gerard J. Prud'homme, Semmes, Bowen & Semmes, all on brief) all of Baltimore, Maryland, FOR PETITIONERS.

   A. Gwynn Bowie, Jr. (Donald W. Whitehead, Jr., Smith, Somerville & Case, all on brief) all of Annapolis, Maryland, FOR RESPONDENTS.

JUDGES: ARGUED BEFORE John C. Eldridge, Cole, Rodowsky, McAuliffe, Adkins, Howard S. Chasanow (specially assigned) and Charles E. Orth, Jr., (retired, specially assigned), JJ.

OPINIONBY: ELDRIDGE

OPINION: ORDER

   John C. Eldridge, Senior Judge

   The petition for writ of certiorari in the above entitled case having been granted and heard, it is this 12th day of January, 1990.

   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. 

MOTOR VEHICLE ADMINISTRATION v. Thomas Noble MOHLER, III.MOTOR VEHICLE ADMINISTRATION v. Kurt Dennis TRITAIK 
Nos. 52, 53, September Term, 1989
 
Court of Appeals of Maryland
 
318 Md. 219; 567 A.2d 929; 1990 Md. LEXIS 1

 January  8, 1990

   SUBSEQUENT HISTORY: [***1] As Corrected January 18, 1990.

PRIOR HISTORY:  
No. 52 SEPT. TERM, 1989, Certiorari to Circuit Court for Prince George's County, Robert J. Woods, JUDGE.

   No. 53 SEPT. TERM, 1989, Certiorari to Circuit Court for  Anne Arundel  County, H. Chester Goudy, Jr., JUDGE.

DISPOSITION: JUDGMENTS IN NO. 52 AND NO. 53 AFFIRMED.  COSTS TO BE PAID BY THE MOTOR VEHICLE ADMINISTRATION.

CORE TERMS:  unsafe, driver, unfit, license, licensee, suspension, driving, hearing examiner, examiner, reckless, motor vehicle, habitually, revocation, revoke, convicted, suspend, negligent driver, habitual, head-on, drive, lane, recklessness, suspend a license, hearing officer, collision, deleted, influence of intoxicating liquor, influence of alcohol, sufficient evidence, power to revoke

COUNSEL: Edward R.K. Hargadon, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General and Risselle Rosenthal Fleisher, Assistant Attorney General, all on brief), all of Baltimore, Maryland, for petitioner.

   Timothy F. Maloney (Edward P. Camus, Camus & Maloney, all on brief), all of Riverdale, Maryland, for respondent in No. 52.

   Peter S. O'Neill, Glen Burnie, Maryland, for respondent in No. 53.

JUDGES: Murphy, C.J., Eldridge, JJ., Cole, Rodowsky, McAuliffe and Adkins, JJ., and Charles E. Orth, Jr., Judge of the Court of Special Appeals of Maryland (retired) Specially Assigned.

OPINIONBY: ADKINS

OPINION: [*222] [**931] These two cases, one tried in the Circuit Court for Prince George's County and the other in the Circuit Court for Anne Arundel County, both concern the interpretation of Maryland Code (1987 Repl.Vol.), § 16-206(a)(1)(ii) of the Transportation Article.  [***2] We shall conclude that the circuit courts properly held that the appellees could not be considered "unsafe" drivers under that provision of the code. n1£ Before explaining why we do so, we recount the somewhat different factual background in each case.

n1 In No. 52, Mohler's case, an evidentiary issue is raised as well.  We shall deal with that in Part III of this opinion.

   I. Background

   A. No. 52 -- MVA v. Mohler

   On 5 June 1986, a United States Magistrate, sitting in the United States District Court for the District of Maryland, convicted Thomas Noble Mohler, III, (Mohler) of driving under the influence of intoxicating liquor in violation of the provisions of former 36 C.F.R. § 50.28(c). n2£ The Maryland Motor Vehicle Administration (MVA) thereafter conducted a hearing to determine whether to suspend or revoke Mohler's motor vehicle operator's license pursuant to § 16-206(a)(1), which permits the MVA to impose one of those sanctions "on a showing by [MVA's] records or other sufficient evidence that the . . . licensee [***3] . . . (ii) Is an unfit, [*223] unsafe or habitually reckless or negligent driver of a motor vehicle." n3

n2 Former 36 C.F.R. § 50.28(c) provided: "No person who is under the influence of intoxicating liquor . . . shall operate or drive a motor vehicle of any kind in any area covered by this part."

n3 Section 16-205 of the Transportation Article permits the MVA to revoke or suspend the license of any individual who is convicted of certain violations of § 21-902, which penalizes driving while intoxicated, while under the influence of alcohol, or while under the influence of a controlled dangerous substance. Mohler, of course, was not convicted of any violation of § 21-902, but instead a violation of 36 C.F.R. § 50.28(c).  See note 2, supra.  The legislature has not seen fit to extend the sanctions of § 16-205 to a driving-under-the-influence conviction imposed by a federal court pursuant to the Code of Federal Regulations.  As a consequence, in Mohler's case, the MVA proceeded under § 16-206(a)(1)(ii) not § 16-205.

[***4]

   The MVA hearing examiner suspended Mohler's license for 15 days and placed him on a three-year alcohol restriction, tersely concluding that Mohler was "subject to" § 16-206(a)(1)(ii).  On appeal to the Circuit Court for Prince George's County, the parties stipulated that the hearing officer based his decision "solely upon [Mohler's] conviction of a violation of 36 Code of Federal Regulations 50.28(c)."£ They also stipulated that "[n]o other evidence concerning appellant's fitness to drive, safety as a driver, or habitual recklessness or negligence was considered by the hearing examiner."

   Judge Woods, of the Circuit Court for Prince George's County, found "that the Administration could not reasonably conclude that one with a single conviction for driving under the influence of alcohol is [an] unfit, unsafe, or habitually reckless or negligent driver."£ This Court granted the MVA's petition for certiorari.

   B. No. 53 -- MVA v. Tritaik

   On 27 June 1987, Kurt Dennis Tritaik (Tritaik) was on his way to Ocean City, Maryland.  The weather was rainy and it was about 1:00 a.m. He was travelling eastward in the westbound lane of Route 90 when he collided head-on with another car.  The driver [***5] of the other car subsequently died as a result of the accident.  Tritaik was convicted of violating Maryland Code (1987 Repl.Vol.), § 21-305 of the Transportation [*224] Article, for driving to the left of the center line of the road in an unauthorized manner.

   Following the conviction, the MVA charged Tritaik with being "an unfit, unsafe, or habitually reckless or negligent driver" under § 16-206(a)(1)(ii), and conducted a hearing on this charge on 1 February 1988.  Tritaik's prior record was in [**932] evidence, n4 but the hearing examiner focused on the 27 June 1987 collision. Tritaik, who was severely injured in the collision, testified that he did not recall the sequence of events immediately prior to and during the accident.  The accident report indicated that Tritaik was in the process of passing three cars when he collided with the oncoming car.

n4 The prior record (in addition to the 1987 conviction) consisted of two failures to obey traffic signals or devices (1980 and 1981) and speeding (1984). One of the "failures to obey" resulted in an accident.

[***6]

   The hearing officer noted that the accident report stated that Tritaik had been drinking.  Tritaik admitted to having two beers with dinner about 7:00 p.m. (six hours before the accident); no charges, however, were ever brought against Tritaik for the use of alcohol.  There was evidence from two of Tritaik's neighbors that Tritaik was not known to drink to excess and "was never observed in an intoxicated condition."£ The hearing officer concluded that Tritaik was "involved in an accident in which there had to be a degree of recklessness because [he] did cross over into the next man's lane and had a head-on collision."£ The examiner also stated that he felt that Tritaik "operated that vehicle in [a] wanton and reckless manner."£ He then revoked Tritaik's license.

    Tritaik appealed to the Circuit Court for Anne Arundel County.  Judge Goudy reversed and vacated the MVA's decision.  This Court issued a writ of certiorari to the circuit court at the request of the MVA.

   II. Construction and Application of § 16-206(a)(1)(ii)

   A. Mohler's Case

   The § 16-206(a)(1)(ii) issue in Mohler's case is clear cut: Can a single conviction of driving under the influence [*225] of intoxicating liquor serve, [***7] without more, as the factual predicate for a finding that a driver is "unsafe" within the meaning of the subsection? n5£ We hold that Judge Woods construed and applied the statute correctly when he answered that question in the negative.

n5 The hearing officer in Mohler's case did not specify whether he found Mohler unsafe, unfit, or habitually reckless or negligent.  Judge Woods concluded that the single conviction was insufficient to support a finding of the existence of any of those conditions.  The MVA, in its brief, advises that it "does not contest the lower court's ruling insofar as it ruled that [Mohler's] conviction, standing alone, does not indicate that the driver is unfit or habitually reckless or negligent."£ MVA's sole contention under § 16-206(a)(1)(ii) is that it was error to hold that the single conviction was "not a reasonable basis upon which MVA could conclude that a driver is 'unsafe.'"

   As we have noted, § 16-206(a)(1)(ii) reads:
(a)(1) The Administration may suspend, revoke, or refuse to issue [***8] or renew the license of any resident . . . on a showing by its records or other sufficient evidence that the applicant or licensee: . . . (ii) Is an unfit, unsafe, or habitually reckless or negligent driver of a motor vehicle.
When construing a statute, the duty of the reviewing court is to determine the goal of the legislature and to effectuate that objective.  Rucker v. Comptroller of the Treasury, 315 Md. 559, 564, 555 A.2d 1060, 1063 (1989). The court must divine the legislative goal or purpose by examining the language of the statute "in the context within which it was adopted."£ Rucker, 315 Md. at 565, 555 A.2d at 1063. See State v. Runge, 317 Md. 613, 566 A.2d 88, 92-93 (1989).

   The statute before us went through several metamorphoses before reaching its current form.  Under the 1918 Code of Maryland, the commissioner of Motor Vehicles could, at his discretion, suspend or revoke the license of a person holding a Maryland driver's license who was "convicted of any violation of any of the provisions of this sub-title."£ Md.Code (1918), Art. LVI, § 145.  The statute also gave the [***9] commissioner the discretion to revoke or suspend an operator's license "for any cause which he may deem sufficient."£ Id. 

   [*226] The "unfit" and "unsafe" language appeared in 1947.  The Department of Motor Vehicles retained the authority to revoke or suspend a license for any violation of the [**933] code and, in addition, could do so "for any other cause or reason which, in the opinion of the Department renders the holder of any such license . . . an unfit or unsafe person."£ Md. Code (1947 Cum.Supp.), Art. 66 1/2, § 95.  This version of the statute deleted the broad language which gave the commissioner the power to revoke or suspend a license "for any cause which he may deem sufficient."

   In 1970, the legislature again revised the provision.  The grounds for suspension or revocation became:
 
a showing by [the department's] records or other sufficient evidence that the licensee:
(1) Is either an unfit or unsafe driver.
(2) Has been convicted with such frequency of violations of the traffic regulations . . . as to indicate an intent to disregard the traffic laws and the safety of other persons . . .
(3) Is an habitually reckless or negligent driver of a motor vehicle;
(4) Is [***10] incompetent to drive a motor vehicle;
(5) Has permitted an unlawful or fraudulent use of the license;
(6) Has committed an offense in another state . . . .
Md.Code (1970 Repl.Vol.), Art. 66 1/2, § 6-206.  This revision divested the department of its authority to revoke or suspend an operator's license for any violation of the code.  In the 1977 code revision process, the revisors consolidated the language in former § 6-206.  Paragraphs (1) and (3) were combined, and paragraph (4) was deleted. Md.Code (1977), § 16-206 of the Transp. Art.  Those changes put the provision in its current form.

   The evolution of § 16-206 reveals the legislature's goal of limiting the department's (now the MVA's) discretion to revoke or suspend licenses. The legislature first took away the commissioner's (department's) power to revoke or suspend [*227] a license for any reason that that official (it) found sufficient, and later took away the department's power to revoke or suspend a license for any motor vehicle violation under the statute.  The objective of these changes was to establish a tighter, more specific standard for revocation or suspension.

   Moreover, the statutory development shows [***11] that the legislature meant to attach distinct meanings to "unsafe," "unfit," and the two "habitual" categories.  The 1977 revisor's note to § 16-206 advises that the "reference to an 'incompetent' driver [in former Art. 16 1/2, § 6-206 was] deleted as superfluous in light of the references to an 'unfit,' or 'unsafe' driver."£ Ch. 14, Acts of 1977.  We may conclude that the legislature believed that "unsafe" and "unfit" together encompass the meaning of "incompetent" and "unsafe" and "unfit" are not intended to be synonyms; otherwise, the legislature would have deleted one of those words as well.  Lack of fitness has to do with incompetence: physical or mental unsoundness for a particular purpose.  See Random House Dictionary of the English Language at 2068 (2d ed. 1987); Oxford English Dictionary Vol. XIX at 19 (2d ed. 1989).  "Unsafe" means, among other things, "exposing to danger."£ Webster's Third New International Dictionary at 2509 (1976); Oxford English Dictionary Vol. XIX at 180 (2d ed. 1989).  An unfit driver may be an unsafe one, but an unsafe one is not necessarily an individual who is subject to a physical or mental condition that impairs his or her ability to drive. [***12]
 
   As we have said, we deal here with a driver found by the MVA to be "unsafe."£ But the single conviction upon which the hearing examiner relied could not be the basis for that finding.

   We do not rule out the possibility that a single incident might, in some circumstances, provide a sufficient foundation for a finding of "unsafe."£ But a conviction of driving under the influence is not even complete evidence of a single incident.  The surrounding circumstances are unknown.  We do not know how Mohler was driving, to what [*228] extent he was under the influence, his proclivity, if any, to drink or any other information that might bear upon his "unsafeness" as a driver. The hearing examiner must determine that the licensee is "unsafe" at the time of the hearing.  The [**934] statute is a measure designed to keep unsafe drivers off the road, at least for a time.  Hence, it must be determined that the licensee is unsafe at the time of revocation or suspension. The statute's history supports this reading of it.

   What is now § 16-206 traces back to § 6-206 of the Uniform Vehicle Code.  See Uniform Vehicle Code (Revised 1962).  While the Maryland statutory provisions are not identical to those [***13] of the Uniform Code, and never have been, the purpose of both is the same.  With respect to the physical or mental disability ground for sanction, it has been said that "[i]f any broad generalization is possible, it is that in order to support the administrative denial or withdrawal of driving privileges . . . there must be competent, substantial evidence of the existence of some tangible disease or defect which bears, or could in the future bear, adversely upon the particular motorist's capacity to drive safely."£ 7A Am.Jur.2d.  Automobiles and Highway Traffic § 116 at 284 (1980).  In other words, where unfitness is the criterion, the unfitness must be a present one . . . one that "bears, or could in the future bear," upon the licensee's "capacity to drive safely."£ The same is true when "unsafe" is the criterion.

   Thus, the "unsafe" standard requires the hearing examiner to determine whether the licensee possesses some characteristic that is likely to make him an unsafe driver. The focus is on the driver, not on the offense of which the driver was convicted. For this reason, MVA's reliance on out-of-state cases that allow suspension or revocation when a driver has been convicted [***14] of a serious offense is not helpful.  See, e.g., Crow v. Shaeffer, 199 N.W.2d 45 (Iowa 1972) (I.C.A. § 321.210(7) authorizing suspension of licensee who has "committed a serious violation of the motor vehicle laws of this state" allows suspension based on single conviction [*229] of reckless driving, when details of reckless driving established); Ralston v. State, 60 Wash.2d 535, 374 P.2d 571 (1962) (R.C.W. 46.20.290(4) authorizing suspension of license of one who "has committed a serious violation of the motor vehicle laws of this state" permits suspension based on single drunk driving conviction).

   Those statutes make the nature of the violation the test for suspension or revocation. Maryland, at least where § 16-206(a)(1)(ii) is concerned, looks to the characteristics of the driver, not just the gravity of the motor vehicle violation.  To be sure, the nature of a violation may have some bearing on whether a driver may be considered unsafe, as may facts that disclose the details of the violation.  See Bungardeanu v. England, 219 A.2d 104 (D.C.1966) (facts that drunk driver struck two parked cars and left [***15] scene of accident sufficient to support a finding of "flagrant disregard for the safety of persons or property" under D.C. Traffic and Motor Vehicle Regs. § 5(a)).  But under our carefully limited statute, Mohler's single conviction of driving under the influence is insufficient in and of itself, to sustain the hearing examiner's finding that Mohler was an "unsafe" driver. Judge Woods did not err when he reversed the hearing examiner on this point. n6

n6 Mohler also argues that the MVA was required to reexamine him before suspending his license. His contention is based primarily on § 16-207(a)(1) which declares that "[t]he Administration may require a licensee to submit to reexamination" if, among other things, "(ii) . . . the Administration has good cause to believe that the licensee is unfit, unsafe, or otherwise not qualified to be licensed."£ But § 16-207(a)(1), as its language discloses, does not mandate anything.  It simply gives the MVA an alternate path to suspension or revocation.

   B. Tritaik's Case

   As reference [***16] to Part I.B, supra, will reveal, the facts upon which Tritaik's revocation was based showed more than a single conviction. There was, of course, a conviction for driving to the left of the center line of the road.  But in addition, the hearing examiner learned some facts about the accident in which Tritaik was involved (including the death [*230] of another driver) and about some of Tritaik's activities shortly before the accident.  The MVA insists that these additional facts are sufficient to uphold findings of both "unsafe" and "habitually [**935] negligent." n7

n7 MVA does not contend that Tritaik was "unfit" or "habitually reckless."

   As in Mohler's case, the hearing examiner was somewhat nonspecific in explaining just what was the basis for his suspension order.  Maryland Code (1984), State Government Article, § 10-214 (Part of the Administrative Procedure Act) directs in no uncertain terms that:
 
(b)(1) A final decision in a contested case shall contain separate statements of:

   (i) the findings of fact; and [***17]

   (ii) the conclusion of law.

   (2) If the findings of fact are stated in statutory language, the final decision shall state concisely and explicitly the facts that support the findings.
 
If hearing examiners followed this directive scrupulously, it would be helpful to us, to the circuit courts, and to the hearing examiners themselves, for a careful statement of facts and conclusions would force the examiner to focus on the evidence presented and its sufficiency to support a particular conclusion.

   In any case, § 10-214(b) was given somewhat short shrift here.  The examiner recited several pieces of information.  He made few findings of fact, except to state that
 
You [Tritaik] had left your lane to the other lane and hit a head-on -- had a head-on accident in which there was a fatality and you had been drinking on this occasion.
 
Later on, the examiner opined that he couldn't tell to what extent the consumption of alcohol had contributed to the accident.  His "inescapable conclusion" (as we have recounted) was that
 
[*231] You were involved in an accident in which there had to be a degree of recklessness because you did cross over into the next man's lane and had a head-on [***18] collision.
 
He summarized:
 
The evidence before me is that you did cross into the other lane on a dark wet night and did strike the victim's car head-on. The victim, Robert Cannon, did die.  I think greater [care] should have been used due to the time and the road conditions.  Today, . . . I do feel that you operated the vehicle in [a] wanton and reckless manner and the license will be revoked.

   The examiner's language at once disposes of the MVA's contention that there was a finding of habitual recklessness. For something to be habitual, it must be done -- or not done -- over some period of time.  There must be some evidence of habit.  Whether Tritaik's prior record n8 could constitute enough evidence of habitual recklessness, we need not decide.  The examiner did not rely on that record.  He relied only on the event of 27 June 1987.  When we review an administrative action, we may uphold the agency order only if "'it is sustainable on the agency's findings and for the reasons stated by the agency.'"£ Baltimore Heritage v. City of Baltimore, 316 Md. 109, 113, 557 A.2d 256, 258 (1989) (quoting United Steelworkers v. Bethlehem Steel, 298 Md. 665, 679, 472 A.2d 62, 69 (1984)). [***19] The findings and reasons disclosed here do not permit us to sustain any conclusion as to Tritaik's habitual negligence, even if the examiner intended to so conclude.

n8 See note 3, supra.

   As to "unsafe," we are left with a single incident as a basis for the finding.  The MVA tells us that the death of another driver supports a finding of "unsafe."£ It does not, on this record.  The death was a tragic event, but it tells us virtually nothing about why Tritaik might be found to possess the ongoing characteristics of an unsafe driver. Motor vehicle fatalities may occur even though no driver [*232] breaks the law; on the other hand, a case of the most egregiously unsafe driving might cause no fatality.  The fact that § 16-207(a)(1)(i) gives the MVA discretion to call a licensee in for reexamination if there has been a fatal accident has no bearing on § 16-206(a)(1)(ii).  As we already have explained, the two sections represent distinct [**936] and alternative routes to suspension or revocation.

   The MVA relies on Cutlip v. Connecticut Motor Vehicle Commissioner, 168 Conn. 94, 357 A.2d 918 (1975). [***20] It cites the case for the proposition that a driver determined to be at fault in a fatal accident should be removed from the highway.  This decision, however, was made under a Connecticut statute (Gen.Stat. § 14-111(c)) that specifically authorized revocation or suspension in the event of a fatal accident, if the licensee was found responsible for the accident, and if the licensee had caused or contributed to the death by virtue of a violation of the Connecticut Motor Vehicle laws or by negligence or carelessness.  Our statute is not remotely like the Connecticut statute, and in any case, the hearing examiner here did not make findings like those made in Cutlip.

   The MVA's other out-of-state cases suffer from the same deficiency as the "serious conviction" cases we discussed in Part II.A: the underlying statutory schemes are vastly different from Maryland's.  Moreover, all involve facts quite distinct from those here.  See, e.g., Hernigle v. Macduff, 305 N.Y. 367, 113 N.E.2d 520 (1953) (finding that accident causally related to respondent's drowsy condition, and that driver was aware he was dosing off, but continued to drive); Griffin v. Muzio, 10 Conn.App. 90, 521 A.2d 607, [***21] cert. denied, 203 Conn. 805, 525 A.2d 520 (1987) (same statute as that involved in Cutlip); Farrell v. Adduci, 138 A.D.2d 944, 526 N.Y.S.2d 686 (1988) (drinking driver exceeded speed limit by at least 15 miles per hour, crossed center line, and crashed into guard rail, killing two passengers); Commonwealth v. Fisher, 184 Pa.Super. 75, 132 A.2d 739 (1957) (driver had 10-12 beers, and fell asleep at wheel, [*233] causing vehicle to travel 445 feet, striking posts and guard rails before stopping).

   We venture no opinion as to whether facts like these would justify suspension or revocation under § 16-206(a)(1)(ii).  We point out only that the facts pertaining to Tritaik are different.  They do not show that Tritaik, when he appeared before the examiner, possessed any characteristics likely to render him an unsafe driver. Accordingly, Judge Goudy did not err in reversing the hearing examiner.

   III. An Evidentiary Issue

   Remaining for disposition is the MVA's contention that Judge Woods erred in admitting certain evidence during Mohler's appeal.  See note 1, supra.

   At the circuit [***22] court hearing, Mohler produced one Mary Rita Miller, a Ph.D. affiliated with the English Department at the University of Maryland.  Mohler qualified Dr. Miller as an expert in linguistics.  He then, over the MVA's objections, had her testify as to the meanings of "unsafe" and "unfit."£ Her testimony consisted chiefly of stating dictionary definitions of the words.

   The MVA avers that this procedure violated State Government Article § 10-215(e).  This subsection permits additional evidence on judicial review of an administrative agency decision only if, among other things, the party offering the evidence applies for leave to do so prior to the court hearing (§ 10-215(e)(1)(i)) and the court is satisfied that there were good reasons for failure to offer the evidence before the agency (§ 10-215(e)(1)(ii)(2).  Mohler satisfied neither of these preconditions.  Moreover, if the criteria of § 10-215(e) are met, the additional testimony is heard before the agency, not the court.  Consumer Protection v. Consumer Pub., 304 Md. 731, 749, 501 A.2d 48, 58 (1985).

   Assuming, without deciding, that § 10-215(e) applies to a situation in which the additional evidence does [***23] not relate to the merits of a case, but only to the meaning of words in a statute, Judge Woods erred when he admitted the evidence [*234] in the circuit court proceeding.  But to remand this case to the circuit court to allow Judge Woods to decide whether the evidence should come in under the § 10-215(e) criteria, and in the event of a favorable decision, to send the case back to the MVA to consider the evidence, Howard County v. Davidsonville Civic Ass'n, 72 Md.App. 19, 47, 527 A.2d 772, 786, cert. denied, 311 Md. 286, 533 A.2d 1308 (1987), on the facts of [**937] this case would be inconsistent with judicial economy and efficiency.

   The record contains not the slightest hint that Judge Woods considered Dr. Miller's dictionary readings in any respect.  Indeed, he could have obtained much the same information by reading dictionaries himself.  In his written opinion and order of court, he made no attempt to define "unsafe" or "unfit."£ He simply found that "given the clear and unambiguous language of [§ 16-206(a)(1)(ii)] . . . the Administration could not reasonably conclude that one with a single conviction for driving under [***24] the influence of alcohol is an unfit, unsafe, or habitually reckless or negligent driver."£ But the error in admitting the evidence could not have prejudiced the MVA.  "It is a fundamental rule of appellate procedure that a reviewing court will not reverse upon rulings on evidence where the ruling did not result in prejudice to the complaining party."£ Johnson v. State, 303 Md. 487, 528-529, 495 A.2d 1, 22 (1985), cert. denied, 474 U.S. 1093, 106 S.Ct. 868, 88 L.Ed.2d 907 (1986); accord Tully v. Dasher, 250 Md. 424, 436, 244 A.2d 207, 214 (1968).

   JUDGMENTS IN NO. 52 AND NO. 53 AFFIRMED.  COSTS TO BE PAID BY THE MOTOR VEHICLE ADMINISTRATION. 

Troy Edward DAFF v. STATE of Maryland 
No. 119, September Term, 1988
 
Court of Appeals of Maryland
 
317 Md. 678; 566 A.2d 120; 1989 Md. LEXIS 161

 November  29, 1989

   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 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:  jeopardy, prosecutor, common law, postponement, acquit, double jeopardy, attach, nolle prosequi, autrefois, lack of prosecution, verdict of acquittal, proceed to trial, finality, indictment, subpoenas, authority to dismiss, granted certiorari, subjected, sworn, trier, former acquittal, trial date, deficient, nolle, Fourteenth Amendments, subject matter jurisdiction, subsequent prosecution, insufficiency, termination, acquitted

COUNSEL: Arnold D. Bruckner and Kenneth E. McPherson (Bruckner & Bruckner, P.A., all on brief), all of Riverdale, Maryland, for petitioner and cross-respondent.

   Ann N. Bosse, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, both on brief), both of Baltimore, Maryland, for respondent and cross-petitioner.

JUDGES: Murphy, C.J., and Eldridge, Cole, Rodowsky, McAuliffe, Adkins and Blackwell, JJ.

OPINIONBY: McAULIFFE

OPINION: [*680] [**121] Troy Edward Daff was found not guilty of the assault and battery of two persons.  The State filed an order of appeal, but before its right to do so could be challenged, it dismissed the appeal.  The State then filed new charges against Daff for the same offenses.  Daff procured the dismissal of those charges on double jeopardy grounds, and the State again appealed.  The Court of Special Appeals reversed.  State v. Daff, 77 Md.App. 16, 549 A.2d 25 (1988). [***2] We granted certiorari.

   Ordinarily, the common law doctrine of double jeopardy, embracing as it does the principles supporting the ancient plea of autrefois acquit, prohibits a second prosecution following an acquittal of the same offense.  The question raised by this case involves the circumstances under which the entry of a verdict of not guilty will result in the application of those principles.

   Daff was originally charged in the District Court of Maryland for Anne Arundel County.  The case was removed to the Circuit Court for that county on 8 May 1987, by Daff's demand for a jury trial.  On 22 June, Daff's [*681] attorney entered his appearance in the case, and on 18 August the defendant filed a written plea of not guilty and an election to be tried by the court.

   The matter came on for trial on the scheduled date of 4 September, before Judge James C. Cawood, Jr.  When the case was called, the prosecutor asked that the names of the prosecuting witnesses be called.  When neither witness responded, the prosecutor inquired of the court whether the file reflected that witness subpoenas had been served on the complainants.  He was informed that the witness subpoenas had not been [***3] issued, and that there was no request for their issuance in the court file.  The prosecutor said that notes in his file indicated that his office had forwarded to the clerk of the court a written request for the issuance of the subpoenas. The prosecutor could not explain why the request was not in the court file, nor why it had not [**122] been acted upon by the clerk.  He requested a postponement of the trial.

   Judge Cawood then questioned the prosecutor concerning any attempts the State's Attorney's office might have made to contact the witnesses between the time the trial date was established in May and the actual trial date in September.  Learning that there had been no recent attempts to contact the witnesses, and no follow-up inquiry to determine whether the subpoenas had been issued or served, Judge Cawood denied the continuance. n1£ The following colloquy occurred:

   COURT:£ Okay.  All right, well, there may have been a request to put it on the computer, but there was never a summons issued and frankly, there hasn't been any follow-up to it.  I think there is some duty to try and follow these things up.  I'll deny the postponement . . .  I think he was here and ready to proceed [***4] . . . should have been [*682] followed up.  If you can't proceed with the case, are you going to nolle pros it?

   DEFENSE ATTORNEY:£ We enter a plea of not guilty, Your Honor.  I'd like to be tried before Your Honor.

   PROSECUTOR:£ Well, the State would not proceed at this time, Your Honor.

   COURT:£ All right, we'll enter a nolle pros in the two cases then.

   PROSECUTOR:£ The State does not move to nolle pros the cases, Your Honor.

   COURT:£ Oh, the State doesn't move . . . .

   PROSECUTOR:£ No, Your Honor.

   COURT:£ All right, then I'm going to enter a finding of not guilty.
 
The docket entry for that day reads:
 
   September 4 Court trial (Judge Cawood), Plea Not Guilty, Counsel heard, State's request for a postponement, Denied.  Finding: NOT GUILTY.

n1 The record is silent as to whether Judge Cawood was authorized, as the designee of the county administrative judge, to grant a change of the trial date. See Maryland Rule 4-271(a).  The parties assumed that he was, and we shall do likewise.

   The [***5] prosecutor filed an order for appeal.  Two months later, following a discussion between the prosecutor and a representative of the Attorney General's office, the State dismissed the appeal.  At the same time, the State filed a Bill of Information in the Circuit Court for Anne Arundel County, charging Daff with the same two offenses.  Daff moved to dismiss the charges, relying on the double jeopardy protections of the common law of Maryland and of the Fifth and Fourteenth Amendments to the United States Constitution.  Judge Bruce C. Williams granted Daff's motion, and the State appealed.  The Court of Special Appeals reversed, concluding that jeopardy had not attached when Judge Cawood entered the finding of not guilty, and that the prosecution was therefore free to renew the charges.  State v. Daff, supra, 77 Md.App. at 19-20, 549 A.2d 25. We granted certiorari, and we reverse the Court of Special Appeals and direct that the judgment of the trial court be affirmed.

   [*683] Double jeopardy protections exist in this State not only by virtue of the Fifth and Fourteenth Amendments to the United States Constitution, but also by the continued existence [***6] of the common law of double jeopardy. Wright v. State, 307 Md. 552, 561-62, 515 A.2d 1157 (1986); Brooks v. State, 299 Md. 146, 472 A.2d 981 (1984); Ward v. State, 290 Md. 76, 427 A.2d 1008 (1981); Block v. State, 286 Md. 266, 407 A.2d 320 (1979); Pugh v. State, 271 Md. 701, 319 A.2d 542 (1974). As the United States Supreme Court noted in United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 1354, 51 L.Ed.2d 642 (1977):

   Perhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that "[a] verdict of acquittal . . . could not be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy, and thereby violating the Constitution."£ United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 1195, 41 L.Ed. 300 (1896).
 
Similarly, a defendant acquitted at trial may not be retried on the same offense, even when the acquittal is "based upon an [**123] egregiously erroneous foundation."£ [***7] Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 671, 672, 7 L.Ed.2d 629 (1962). See also Sanabria v. United States, 437 U.S. 54, 64, 98 S.Ct. 2170, 2178, 57 L.Ed.2d 43 (1978); Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957).

   In discussing the common law precedent for these statements of constitutional law, this Court said in State v. Shields, 49 Md. 301, 303 (1878): 
 
It has always been a settled rule of the common law that after an acquittal of a party upon a regular trial on an indictment for either a felony or a misdemeanor, the verdict of acquittal can never afterward, on the application of the prosecutor, in any form of proceeding, be set aside and a new trial granted, and it matters not whether such verdict be the result of a misdirection of the judge on a question of law, or of a misconception of fact on the part of the jury.  2 Hale's P.C. 310; 2 Hawk's P.C. Book [*684] 2, ch. 47, sec. 12; 3 Whart.Cr.Law, sec. 3221; 1 Bishop's Cr.Law, secs. 992, 993.  This cardinal rule has been [***8] clearly and definitely settled in England, and has never been modified by legislation there, nor in any other State in this Union, nor indeed, so far as we are aware, in any other country where trial by jury under the common law prevails.
 
The defense of former acquittal was formerly raised by the plea in bar of autrefois acquit, which was addressed in 4 Blackstone's Commentaries at 355:

   [T]he plea of autrefoits acquit, or a former acquittal, is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offence.  And hence it is allowed as a consequence, that when a man is once fairly found not guilty upon any indictment or other prosecution, before any court having competent jurisdiction of the offence, he may plead such acquittal in bar of any subsequent accusation for the same crime.

   The principle embodied in the plea of autrefois acquit has been broadly interpreted.  A verdict of not guilty, even though not followed by a judgment on the docket, is sufficient to invoke the protection.  Pugh v. State, supra, 271 Md. at 706-07, 319 A.2d 542. [***9] Once a trial judge has intentionally rendered a verdict of not guilty, a subsequent change of mind is prohibited even though the judge may be convinced, even moments later, that the verdict was erroneous.  Id. at 707, 319 A.2d 542; Brooks v. State, supra, 299 Md. at 155, 472 A.2d 981. The court entering the acquittal must have basic subject matter jurisdiction, but procedural errors will not affect the efficacy of the acquittal for jeopardy purposes.  2 Hawkins, Pleas of the Crown 521 (8th ed. 1824); 2 Hale's Pleas of the Crown 247 (1st Am.Ed. 1847).  See Block v. State, supra, 286 Md. at 273-74, 407 A.2d 320 (improper or defective exercise of jurisdiction does not deprive an acquittal of its finality); Parojinog v. State, 282 Md. 256, 384 A.2d 86 (1978) (although juvenile judge lacked authority under the statute [*685] and rules to enter a verdict when he did, the verdict is final for jeopardy purposes because the court had subject matter jurisdiction and jurisdiction over the respondent).  An acquittal entered after trial on a fatally defective [***10] indictment is nevertheless effective to bar a subsequent prosecution for the same offense if the court had jurisdiction of the cause and of the party.  Benton v. Maryland, 395 U.S. 784, 796-97, 89 S.Ct. 2056, 2063-64, 23 L.Ed.2d 707 (1969); United States v. Ball, 163 U.S. 662, 669-70, 16 S.Ct. 1192, 1194-95, 41 L.Ed. 300 (1896); Block v. State, supra, 286 Md. at 272-73, 407 A.2d 320. A previous judgment of acquittal upon a former indictment for the same offense on the ground that prosecution was barred by the statute of limitations, though in error, is a bar to a subsequent prosecution. United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161 (1916). A "dismissal" on the ground of insufficiency of evidence is an acquittal for jeopardy purposes.  Sanabria v. United States, supra, 437 U.S. at 71-73, 98 S.Ct. at 2182-84.

   [**124] In the instant case, the Circuit Court for Anne Arundel County had jurisdiction over the subject matter and over the defendant.  The case had been [***11] called for trial, and the State's request for postponement had been denied.  If we assume that the trial judge erred in denying the State's request, or even that the judge was not the designee of the administrative judge authorized by the rules to grant a postponement, neither of these matters would affect the finality of an acquittal thereafter entered on the ground of insufficiency of the evidence.

   The State has also suggested that the case should not have proceeded to disposition by the judge because the defendant was entitled to a jury trial and that right had not been waived in the manner required by Rule 4-246.  Again, this is a procedural deficiency, about which the defendant might have complained, but it does not affect the finality of the acquittal thereafter entered by a judge having jurisdiction over the matter.

   [*686] When the postponement was denied, the State had two options -- it could have proceeded to trial, or it could have exercised its right to enter a nolle prosequi. n2£ The trial judge assumed the State would take the latter course.  Instead, the prosecutor made it clear that he would neither enter the nolle prosequi nor offer any evidence in the case.  [***12] 

n2 Ordinarily, the entry of a nolle prosequi terminates the running of the 180 day period for trial required by Rule 4-271.  State v. Glenn, 299 Md. 464, 474 A.2d 509 (1984); Curley v. State, 299 Md. 449, 474 A.2d 502 (1984). Even if this case were held to be within the exception to that general rule, sufficient time remained for the State to bring new charges and to proceed to trial. Concerning the effect of the entry of a nolle prosequi for purposes of jeopardy, see Ward v. State, 290 Md. 76, 427 A.2d 1008 (1981).

   The trial judge, having previously ruled that the case was going to proceed to trial, and having offered the prosecutor a reasonable opportunity to abort the proceedings if he did not elect to proceed, thereupon entered the finding of not guilty on the perfectly obvious ground that the evidence offered by the State was insufficient.

   The State argues that instead of proceeding with the trial, the trial [***13]judge should have dismissed the charges "for lack of prosecution."£ There are two problems with this argument.  First, this Court has never held that a trial judge in this State has the authority, in the absence of a violation of Rule 4-271 or a violation of a constitutional guarantee of a speedy trial, to dismiss a criminal case for lack of prosecution. Chief Judge Murphy, writing for the Court of Special Appeals in State v. Hunter, 10 Md.App. 300, 270 A.2d 343 (1970), discussed the difference between federal and State rules dealing with the subject, and concluded that dismissal on that ground was "beyond the power of the court."£ Id. at 305, 270 A.2d 343. This Court granted certiorari, but because of other developments in the case, later dismissed the writ as improvidently granted.  Hunter v. State, 263 Md. 17, 278 A.2d 608 (1971). The Court stated, however, that its action was not to be taken as inferentially approving the holding of the Court of Special [*687] Appeals, and that the issue remained open for future consideration.  Id. at 19, 278 A.2d 608. [***14]We have had no subsequent opportunity to consider the issue. n3

n3 In the case of In Re Darryl D., 308 Md. 475, 478-80, 520 A.2d 712 (1987), this Court discussed, but did not decide, whether a juvenile judge possessed authority to dismiss proceedings for lack of prosecution.

   If the trial judge had no authority to dismiss the action for lack of prosecution, acceptance of the State's position would lead to the rather extraordinary result that the State could always secure a postponement simply by refusing to proceed.  The court, in this situation, cannot force the State to enter a nolle prosequi.  If the court is similarly without authority to dismiss the case for lack of prosecution, and, as the State maintains, cannot enter a binding verdict of acquittal, the State would be able to cause an impasse that would necessarily result in a delay until such time as the State felt it was ready to proceed.  That result would be untenable.  The court has the authority to control its docket, [***15] and it may force the State to proceed to trial or [**125] to enter a nolle prosequi when the case is called for trial on a regularly assigned trial date. Failure of the State to produce any evidence at the trial will necessarily result, as it did here, in an acquittal.

   The second problem inherent in the State's argument that the court should have dismissed the case for lack of prosecution is that, assuming the court had the authority to do so, the decision as to whether to dismiss or whether to require a trial would be one within the discretion of the trial judge.  For the reasons earlier discussed, even an egregious error in the exercise of that discretion would not affect the finality of a judgment of acquittal entered after a decision to proceed to trial.

   The State's final argument, which the Court of Special Appeals found persuasive, is that an acquittal offers no protection unless jeopardy had attached before the acquittal was entered, and that jeopardy had not attached here because [*688] no witness had been sworn and no evidence had been received.  This argument, largely constructed upon language growing out of cases involving a separate but related problem of jeopardy without [***16] verdict, is unpersuasive when applied to the problem of jeopardy after a verdict of acquittal under the facts of this case.  The concept of jeopardy following a mistrial or other termination of proceedings before verdict arose after the common law of autrefois acquit had been firmly established.  Crist v. Bretz, 437 U.S. 28, 33-35, 98 S.Ct. 2156, 2159-61, 57 L.Ed.2d 24 (1978). And see the dissenting opinion of Justice Powell, id. at 40-48, 98 S.Ct. at 2163-67, and Ward v. State, supra, 290 Md. at 85-91, 427 A.2d 1008.

    The language relied upon by the State in connection with the question of when jeopardy attaches has largely evolved from cases dealing with mistrials or terminations other than by verdicts of guilty or not guilty.  See, e.g., Crist v. Bretz, supra; Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975). Even under that line of cases, it is far from clear that the Supreme Court would hold that jeopardy had not attached in the instant case, [***17]within the meaning of the former acquittal protection of the Fifth Amendment.  Although stating the rule in general terms in Serfass v. United States, supra, 420 U.S. at 388, 95 S.Ct. at 1062, that "[i]n a nonjury trial, jeopardy attaches when the court begins to hear evidence," n4 the Court made it clear that the basic test of initial jeopardy is whether the defendant has been "put to trial before the trier of the facts, whether the trier be a jury or a judge," and thereby [*689] "subjected to the risk of conviction."£ Id. at 388-92, 95 S.Ct. at 1062-64. When the ruling, as in Serfass, is made at a pre-trial hearing and the defendant is never subjected to the risk of conviction, jeopardy has not attached.  In the case before us, however, the defendant was specifically "put to trial before the trier of the facts" and "subjected to the risk of conviction."£ The State was given an opportunity to present evidence at the trial.  Had that evidence been sufficient, the defendant would have been convicted.  The trial ended abruptly only because the State introduced no evidence.  With the subsequent [***18] entry of an acquittal, the principles underlying the plea of autrefois acquit became fully applicable. This interpretation of when jeopardy attaches, limited to the situation where a verdict is entered after trial, is entirely consistent with the teaching of Serfass that courts are to avoid mere technicalities, or "rigid, mechanical" rules, in favor of "an attempt to impart content to an abstraction."£ Id. at 391, 95 S.Ct. at 1064.

n4 In Blondes v. State, 273 Md. 435, 444-46, 330 A.2d 169 (1975), we pointed out that the "normal rule" as to when jeopardy attaches in a court trial was "when the judge begins to hear or receive evidence," but that there was a minority view that jeopardy attaches in such a case when the first witness is sworn. Although the Supreme Court chose the language of the "normal rule" in its opinion in Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975), it later said, citing Serfass as authority, that "[i]n nonjury trials jeopardy does not attach until the first witness is sworn."£ Crist v. Bretz, 437 U.S. 28, 37 n. 15, 98 S.Ct. 2156, 2162 n. 15, 57 L.Ed.2d 24 (1978).

[***19]

   In any event, we reach the same conclusion under our interpretation of the common [**126] law of double jeopardy as it exists in this State.  The plea of autrefois acquit was available when an acquittal followed a trial.  It made no difference that the State's evidence may have been woefully deficient at that trial.  Indeed, one may assume that the acquittal usually reflected the inadequacy of the State's case.  We think the defense is no less available when the State's case has been completely deficient than when the State's case has been only partially deficient. A trial may be held although a defendant elects to present no evidence.  Similarly, a trial may be held notwithstanding the refusal of the State to participate.  Daff's trial was held as scheduled, [*690]and he was acquitted by reason of the insufficiency of the State's evidence.  Retrial is barred.

   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. 

CITY OF ANNAPOLIS, et al. v. UNITED FOOD AND COMMERCIALWORKERS, LOCAL 400, et al. 
No. 38, September Term, 1989
 
Court of Appeals of Maryland
 
317 Md. 544; 565 A.2d 672; 1989 Md. LEXIS 154; 4 BNA IER CAS1589

 November  9, 1989

   PRIOR HISTORY: [***1]  
Circuit Court for  Anne Arundel  County pursuant to certiorari to Court of Special Appeals, Bruce C. Williams, Judge.

DISPOSITION: JUDGMENT REVERSED; COSTS TO BE PAID BY THE APPELLEES, UNITED FOOD AND COMMERCIAL WORKERS, LOCAL 400, et al.

CORE TERMS:  drug testing, urine, personnel, testing, drug testing program, fighter, mandatory, drug use, suspicionless, Fourth Amendment, periodic, random, intrusion, physical examination, privacy, police officers, urinalysis, routine, regular, patient, urine sample, uniformed, scheduled, duty, counseling, specimen, user, reasonable suspicion, fire fighter, notified

COUNSEL: Jonathan A. Hodgson, City Attorney of Annapolis, Maryland, for appellants/cross appellees.

   William W. Thompson, II (Zwerdling, Paul, Leibig, Kahn, & Thompson, P.C., all of Washington, District of Columbia, all on brief), for appellees/cross appellants.

   Jeffrey I. Silberman, Gordon, Feinblatt, Rothman, Hoffberger & Hollander, and Susan Goering, all of Baltimore, Maryland, for The American Civil Liberties Union of Maryland, Inc., amicus curiae.

JUDGES: Murphy, C.J., and Eldridge, Cole, Rodowsky, McAuliffe, Adkins and Blackwell, JJ.

OPINIONBY: MURPHY

OPINION: [*545] [**672] This case involves a constitutional challenge to a mandatory, suspicionless post-employment drug testing program for police officers and fire fighters of the City of Annapolis.

   I.

    For some years prior to 1986, all persons seeking employment with the City were required to take a pre-employment [*546] physical examination, which included analysis of a urine specimen. Uniformed police and fire fighter personnel employed by the [***2] City were also required to submit to periodic post-employment physical examinations, including a urinalysis as part of the examination.

   In September of 1986, the City proposed the adoption of a drug testing program [**673] requiring its uniformed police and fire fighter personnel, as a part of their regularly scheduled periodic physical examinations, to submit a urine sample to determine the presence of illegal drugs.  The program's stated objectives were to provide safe, healthful and efficient working conditions for these employees and the public served by them.  The frequency of the examinations of these uniformed employees was predicated upon their age.  The examination was to be conducted during the "birthday" month of the police officer or fire fighter, and they were to be afforded thirty days prior notice of the week that the examination would be given.  In addition, the plan required that the employee be given a forty-eight hour advance notice of the exact time of the examination.

   The City presented its plan in September of 1986 to the employee organizations (the unions) representing the police officers and fire fighters under collective bargaining agreements.  Disagreement arose [***3] over specific details of the City's drug testing plan as an apparent result of which, after approximately one year, no agreement had been formalized between the City and the unions. n1

n1 The City's "Drug Testing Policy and Procedure," as proposed to, but not accepted by the unions, is contained in an appendix to this opinion.

   On October 21, 1987, the City filed a complaint of unfair labor practices against the unions with the Maryland Mediation and Conciliation Service (the Mediation Service), a unit functioning within the State Division of Labor and Industry under Maryland Code (1985 Repl.Vol.), Article 89, § 3.  That section authorizes the Mediation Service, on behalf of the Commissioner of Labor and Industry, to investigate a [*547] labor dispute which "may result in a strike or lockout" and to "seek to mediate it."£ The City alleged in its complaint that the unions had refused to negotiate in good faith, as required by their collective bargaining agreements.  It purported to act pursuant to ch. 3.32 of the Annapolis [***4] City Code (1986), which in § 3.32.060 requires the City and recognized employee organizations "to negotiate collectively and in good faith with respect to the terms and conditions of employment of employees in the unit."£ Section 3.32.070(A) prohibits, as an unfair labor practice, the refusal of a union to negotiate in good faith with the City, and § 3.32.070(B) directs that claims of unfair labor practices be filed with the Mediation Service.  That section also provides that the Service "may issue an order dismissing the complaint or may order a further investigation."

    The Mediation Service, after a proceeding in which the City and the unions participated, found that drug testing of the police and fire fighter personnel was a mandatory subject of collective bargaining under their agreements.  It concluded that the "principle" of drug testing of these uniformed employees had been agreed upon in good faith collective bargaining between the parties but that the details of the program remained to be negotiated -- that no agreement existed on the details of the plan for implementing the drug testing program with regard to obtaining, receiving and testing the urine, or procedures for rechecking [***5] positive results, or safeguards for confidentiality, or disciplinary and rehabilitative procedures.  The Mediation Service noted that the employee's right to privacy with respect to the urine sample was not in question "because urine historically has been collected and routinely . . . tested as part of a fire or police officer's regular physical examination."£ As a consequence, it said that the employee's only objection "to these examinations or the manner in which they are performed . . . can be to the employer's testing of urine lawfully collected."£ The Mediation Service was of the view that, notwithstanding the unions' objection that suspicionless drug testing violated constitutional protections and [*548] was therefore illegal, the City's drug testing plan "conducted within the framework of tests of urine specimens and other tests now performed during required physical examinations of police officers and fire fighters, is not unconstitutional" as an unreasonable search and seizure.  It nevertheless determined, without assessing fault, that the parties were "hopelessly at [**674] impasse" and it declined to order further negotiations.  Instead, it found that the City was free to unilaterally [***6] implement the details of its drug testing proposal.

   The City determined to proceed with its drug testing program and so notified employees of the fire and police departments whose routine physical examinations had been scheduled. Before any examination was given, the unions sought judicial review of the decision of the Mediation Service in the Circuit Court for Anne Arundel County under the Maryland Administrative Procedure Act, Code (1984 Repl.Vol.), §§ 10-101 -- 10-217 of the State Government Article.  They claimed that the City's program was unconstitutional under both the state and federal constitutions because it did not "require reasonable suspicion as the cause for the drug test."£ They asked that the case be remanded to the Mediation Service with directions that the parties be required to resume negotiations to obtain a lawful drug testing program for City police and fire personnel and that, in the meantime, the City be enjoined from implementing its proposed plan.  The unions also filed a verified complaint for an order directing the mediation Service to require the parties to conduct further negotiations, and to enjoin the City from implementing its mandatory, suspicionless [***7] drug testing program of police and fire fighter personnel.

   The circuit court (Williams, J.) determined that the decision of the Mediation Service was not appealable under the Maryland Administrative Procedure Act because the Service was not an agency "authorized by law to adjudicate contested cases" under § 10-201(b)(1) and (2) of the Act.  It concluded, however, that the alternative remedy sought by the unions to prevent implementation and enforcement of [*549] the proposed drug testing program by the City was appropriate.  It believed that the program was unconstitutional under the Fourth Amendment because it was not based on individualized suspicion of drug use among the covered employees or generalized suspicion of drug use in their respective departments.  Specifically, Judge Williams framed the issue before him as "whether mandatory testing for illegal drugs as part of a police officer's or fire fighter's routine periodic physical in the absence of individualized suspicion or any evidence whatsoever of an existing departmental problem constitutes an unreasonable search and seizure under the Fourth Amendment."£ After finding that mandatory urinalysis of public sector employees [***8] was a "search" under the Fourth Amendment, the court undertook to "balance the invasion of the employees' legitimate expectations of privacy against the government's need for supervision, control and the efficient operation of the workplace," citing O'Connor v. Ortega, 480 U.S. 709, 719-20, 107 S. Ct. 1492, 1499-1500, 94 L. Ed. 2d 714 (1987) (plurality opinion), quoting United States v. Place, 462 U.S. 696, 703, 103 S. Ct. 2637, 2642, 77 L. Ed. 2d 110 (1983). The court adopted the statement from Lovvorn v. City of Chattanooga, Tenn., 846 F.2d 1539, 1542-43 (6th Cir.) (later vacated, reh'g granted en banc, 861 F.2d 1388 (1988)) that
 
"[t]he act of urinating is one of the most private of all activities.  The subjective expectation of privacy felt by many individuals when urinating is undoubtedly one that society is prepared to consider reasonable.  There are few other times where individuals insist as strongly and universally that they be let alone to act in private.  Furthermore, the information that may be gleaned from the analysis of an individual's urine [***9] compels the conclusion that a mandatory urinalysis, whether directly observed or not, constitutes a 'search' within the meaning of the Fourth Amendment."
 
Regarding the governmental interest to be protected, Judge Williams also adopted the statement in Lovvorn that "'the City's interest in having its fire fighters free from drugs is [*550] a compelling one.'"£ 846 F.2d at 1544. And the court recognized that the use of controlled dangerous substances by police officers and fire fighters "is especially dangerous."£ Nevertheless, it adopted the reasoning in Lovvorn, id. at 1547, that fire fighters do not hold positions whereby "'significant losses could be imposed on society because of drug impairment'" [**675] as might be so with drug-impaired air traffic controllers or nuclear plant operators.  Judge Williams agreed, therefore, with the holding in Lovvorn that "for a mandatory drug test of fire fighters to be reasonable, there must be some evidence of a significant department-wide problem or individualized suspicion."£ Id.£ Applying this test to the City's program, the court found the mandatory drug testing of City police and fire personnel [***10]unconstitutional because "there is absolutely no evidence that a drug problem exists within a governmental department or any suspicion of an individual's drug use, as the City has conceded."

   The City appealed from the court's issuance of the writ of mandamus enjoining it from implementing and enforcing its suspicionless drug testing program for police and fire fighter personnel. We granted certiorari before decision by the intermediate appellate court to consider the significant issue of public importance presented by the case.

   II.

   The Fourth Amendment of the United States Constitution provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."£ It is applicable to the states through the Due Process Clause of the Fourteenth Amendment, Wolf v. Colorado, 338 U.S. 25, 27-28, 69 S. Ct. 1359, 1361-62, 93 L. Ed. 1782 (1949), and conduct by government employers is subject to its limitations.  O'Connor v. Ortega, supra, 480 U.S. at 715, 107 S. Ct. at 1497.

   The constitutionality of drug testing programs [***11] was recently considered by the Supreme Court of the United [*551] States in two cases, each decided after the circuit court's decision in the present case.  National Treasury Employees Union v. Von Raab, 489 U.S. 656 109 S. Ct. 1384, 103 L. Ed. 2d 685 (1989) involved a mandatory suspicionless urinalysis for drug use of United States Customs Service personnel who sought transfer or promotion to positions having a direct involvement in drug interdiction or to positions that required the carrying of a firearm.  Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989) involved Federal Railroad Administration regulations that mandated the testing of blood and urine samples for drug use by employees following certain types of major train accidents or incidents.  The same regulations also authorized, but did not require, breath and/or urine tests of employees found violating certain safety rules.

   These cases hold that the collection and testing of urine is a "search," n2 and thus implicates the protections of the Fourth Amendment, Skinner, supra, 109 S. Ct. at 1413; [***12] Von Raab, supra, 109 S. Ct. at 1390; that the Fourth Amendment prohibits only those searches that are unreasonable, Skinner, supra, 109 S. Ct. at 1414; that reasonableness has traditionally been judged by "balancing [the] intrusion on the individual's Fourth Amendment interests against [the] promotion of legitimate governmental interests," id.; that in most criminal cases, a search is not reasonable "unless it is accomplished pursuant to a judicial warrant issued upon probable cause," id.; but that exceptions to this rule are proper in non-criminal cases "when 'special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirements impracticable.'"£ Id. (citation omitted).

n2 "A 'search' occurs when an expectation of privacy that society is prepared to consider reasonable is infringed."£ United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 1656, 80 L. Ed. 2d 85 (1984).

[***13]

   In Skinner, the Court found that

   [*552] "[t]he Government's interest in regulating the conduct of railroad employees to ensure safety, like its supervision of probationers or regulated industries, or its operation of a government office, school, or prison, 'likewise presents "special needs" beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements.'£ Griffin v. Wisconsin, 483 [**676] U.S., [868] at [874] 107 S. Ct., [3164] at 3168 [97 L. Ed. 2d 709] (1987)."£ Id. 109 S. Ct. at 1414.
 
In the absence of such warrant and probable-cause requirements, the Court has usually required "'some quantum of individualized suspicion' before concluding that a search is reasonable."£ Id. 109 S. Ct. at 1416-17 (citation omitted). But it has sanctioned limitations on this requirement.
 
 "In limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the [***14] absence of such suspicion."£ Id. at 1417.

   III.

   (A)

   Privacy Expectations

   The case before us does not involve random post-employment drug testing of a broad array of government employees but rather is concerned with a mandated program, limited to uniformed police and fire personnel, conducted during the course of routine periodic physical examinations in which a urine sample is regularly produced and analyzed.  The program is designed to serve needs other than law enforcement and test results may not be used for criminal prosecutions without the employee's consent.  As earlier observed, the program is aimed at providing safe and efficient working conditions for these employees and to protect the public by monitoring, treating and deterring the use of illegal drugs.

   [*553] The central focus of the constitutional inquiry into the City's proposed drug testing program for police and fire fighters is upon the nature of the intrusion -- the actual drug analysis of the urine sample -- and not upon the mandatory taking of the sample.  This is so because these employees have regularly participated for several years, without objection, in providing urine [***15] specimens for analysis as part of their required periodic physical examinations.  Until the advent of the City's proposed plan to test for illegal drugs in the employee's system, the specimen was analyzed for physiological explications other than drug use deemed necessary to determine physical fitness for the demands of police and fire service employment.  Therefore, the inquiry before us is the degree of intrusiveness in subjecting the samples to testing of substances illegal under Maryland law.

   While it is true that the actual assaying of the sample for drug use constitutes a search, n3 under facts like those now before us, the intrusion on reasonable expectations of privacy in the urine sample is not only "minimal" under Skinner and Von Raab, but negligible for several reasons.

n3 In Skinner, 109 S. Ct. at 1412, the Court concluded that chemical analysis of a blood sample to obtain physiological data invades the employee's privacy interests.  The Court recognized further that "chemical analysis of urine, like that of blood, can reveal a host of private medical facts about an employee, including whether she is epileptic, pregnant, or diabetic."£ Id. at 1413.  See also Von Raab, supra, 109 S. Ct. at 1390.

[***16]

    First, in Skinner, the Court approved of the manner in which the regulated procedures reduced the intrusiveness of the collection process.  It found that non-direct observation by a monitor and collection of the sample in a medical environment by personnel unrelated to the railroad employee to be "not unlike similar procedures encountered often in the context of a regular physical examination."£ 109 S. Ct. at 1418. Likewise, in Von Raab, the prescribed procedures of the Customs Service were held to significantly minimize the program's intrusion on privacy interests.  "Employees [*554] are . . . notified in advance of the scheduled sample collection, thus reducing to a minimum any 'unsettling show of authority' that may be associated with unexpected intrusions on privacy. There is no direct observation of the act of urination . . .[;] urine samples may be examined only for the specified drugs."£ Von Raab, supra, 109 S. Ct. at 1394 n. 2 (citations omitted).

   As earlier noted, the covered employees in the present case have three distinct [**677] types of notice.  They know in advance that their physicals are during their "birthday" [***17] months; within thirty days they will know for which week of that month the examination is scheduled; and within forty-eight hours they will know the exact time of that week in which the examination will occur.  There is no observation of urination.  Positive test results are strictly confidential.  While the procedural safeguards appear as protective of individual privacy as those in Skinner and Von Raab, we are not here concerned with whether the collection of urine itself is intrusive on reasonable expectations of privacy grounds because the covered personnel do not object to regular physical examinations whereby a urine sample is produced. Even so, we doubt that there is a great expectation of privacy with regard to the mere unobserved passing of urine in the context of a physical examination which is accepted by the employees as necessary for their continued employment with the City.

   Second, in Skinner, the Court's finding that the procedures were valid turned, in part, on the fact that the urine tests could not be used to inquire into private facts unrelated to alcohol or drug use. 109 S. Ct. at 1418. In the present case, the disclosure [***18] of "private facts" is part of the regular physical examination procedure.  Moreover, it is expected that a physician professionally qualified in urinalysis will evaluate the contents of a urine sample for signs of physical infirmities or latent diseases.  No reasonable expectation of privacy exists with regard to those facts.  In Skinner and Von Raab, testing only for specified drug use was held not unreasonably intrusive.  Clearly, the nature of [*555] the intrusion in those cases is greater in degree than that involved in the case before us.

   Third, in Skinner, the targeted railroad employees were also required to complete a form stating what medications they consumed in the thirty days prior to the tests.  Id. at 1418 n. 7.  The City's proposed program similarly requires that a medication form be completed for precisely the same reason, i.e., to discover whether a positive test result may be explained by the employee's lawful use of drugs.  Skinner found such a requirement permissible in these words:
 
"While this procedure permits the Government to learn certain private medical facts that an employee might prefer not to [***19] disclose, there is no indication that the Government does not treat this information as confidential, or that it uses the information for any other purpose.  Under the circumstances, we do not view this procedure as a significant invasion of privacy."£ Id.
 
That this procedure is calculated to assure accuracy of test results is readily apparent.  See, e.g., National Federation of Government Employees v. Cheney, 280 U.S. App. D.C. 164, 884 F.2d 603 (D.C. Cir. 1989); Shoemaker v. Handel, 795 F.2d 1136, 1140 (3rd Cir.), cert. denied, 479 U.S. 986, 107 S. Ct. 577, 93 L. Ed. 2d 580 (1986) and Weicks v. New Orleans Police Dept., 706 F. Supp. 453, 456 (E.D.La. 1988). In some instances the required disclosure of information regarding prescribed medications may invade reasonable privacy expectations, but not here.  The disclosure of other private medical facts, e.g., physical conditions for which the lawful medication is treatment, would naturally be the subject of inquiry during the course of a regular physical examination.

   Finally, the Court in Von Raab found that employees involved in drug interdiction [***20] or who carry firearms should reasonably expect inquiry into their fitness and probity.  It said, 109 S. Ct. at 1394, that "[b]ecause successful performance of their duties depends uniquely on their judgment and dexterity, these employees cannot reasonably expect to keep from the Service personal information that bears directly on their fitness."£ The accepted rationale for requiring [*556] regular physical examinations in this case, i.e., to ensure and promote physical fitness for the demands of police and fire-fighting related services, would logically extend to identifying and treating those employees with drug abuse problems.  Uniformed police and fire personnel are required to meet a minimum level of fitness to sustain the demands of physical and mental stress that may arise spontaneously and in a manner not experienced by other [**678] public employees.  See, e.g., Maryland Code (1957, 1985 Repl.Vol.), Article 101, § 64A recognizing stress-related occupational hazards associated with fire fighting and police work and creating a presumption in favor of compensating fire and police personnel for specified ailments under the Workmen's Compensation statute.  [***21] Additionally, the justified purpose of periodic physical examinations in monitoring a minimum level of health maintenance undoubtedly serves as motivation for police officers and fire fighters to stay fit.  The analysis of the urine sample for the presence of illegal drugs furthers the purpose of the attendant physical examinations both to identify users of such drugs and to deter their use. Manifestly, these employees expect that their regular physical examinations be as thorough as necessary to identify health risks that would impede or impair the performance of their stressful obligations.  In this context, there is little justification for excluding detection of illegal drug use which could have more adverse effects on a police officer or fire fighter than a substandard level of fitness.  Illegal drug use itself can impair physical and mental performance.  Plainly, the basis for drug testing here is reasonably and objectively related to the accepted purpose of medically investigating the employee's fitness for duty.

   Amalgamated Transit U. v. Cambria Cty Tr. Auth., 691 F. Supp. 898 (W.D.Pa. 1988), involved the same issue as the present case.  It dealt with mandatory [***22]drug testing of municipal bus drivers and mechanics during the course of their annual physical examinations.  There, the court said:

   "We find that testing as part of a regular medical examination works a minimal intrusion on the plaintiffs' [*557] Fourth Amendment privacy interests.  Since providing blood and urine samples has been part of the employees' medical examinations for at least twelve years, drug and alcohol testing does not affront any reasonable expectation in bodily integrity. Further, in earlier years, the Authority collected these samples to learn physiological secrets about the employees' health.  Drug and alcohol testing merely extracts some additional, limited information from the sample: whether any of ten substances is present in the body.

   "Unlike random and surprise drug testing, a routine medical examination takes place in a manner likely to allay anxieties.  The employee has notice far in advance; the physical is always scheduled for his anniversary month.  The Authority does not single any one out for an examination.  Since everyone must submit to an examination, the worker should not suffer any stigma or shock.

   ". . . These tests are for an administrative, [***23] not a criminal purpose.  'While the fourth amendment protects against invasions for civil as well as criminal investigatory purposes, the need for protection against governmental intrusion diminishes if the investigation is neither designed to enforce criminal laws nor likely to be used to bring criminal charges against the person investigated.'£ [Quoting from National Treasury Employees Union v. Von Raab, 816 F.2d 170, 179 (5th Cir. 1987).]£ The Authority does not report positive results for illegal substances to law enforcement officials."£ 691 F. Supp. at 904.
 
See also Jones v. McKenzie, 266 U.S. App. D.C. 85, 833 F.2d 335, 340 (D.C.Cir. 1987) (mandatory drug testing of municipal bus drivers, mechanics and attendants conducted during routine, reasonably required annual medical examination minimized intrusion on privacy), vacated sub nom., Jenkins v. Jones, 490 U.S. 1001 109 S. Ct. 1633, 104 L. Ed. 2d 149, modified on remand, 878 F.2d 1476 (1989); Amalgamated Transit Union v. City of Oklahoma City, 710 F. Supp. 1321, 1331-32 (W.D.Okla. 1988) (mandatory drug testing of municipal transit [***24]employees operationally involved in the transportation [*558] service during regularly conducted medical examinations minimizes intrusiveness); Wrightsell v. City of Chicago, 678 F. Supp. 727, 734 (N.D.Ill. 1988) (police officers returning to duty from extended leave have minimal interest in urine sample provided during employment-related medical examinations).  [**679] Most of the drug testing programs in these cases were originally part of a program of regularly scheduled medical examinations, unlike Amalgamated Transit U. v. Cambria Cty. Tr. Auth., supra and the case before us, which involve previously established medical examinations into which the disputed drug testing procedures were later incorporated.  In this regard, it is apparent that employees who already participate in regular physical examinations experience even less privacy expectations than when a physical examination program is initially implemented.  Von Raab, supra, 109 S. Ct. at 1397; see also Skinner, 109 S. Ct. at 1418.

   The City's proposed program is also vastly different from that in Lovvorn, supra, upon which [***25] the circuit court placed reliance in determining that the program violated the Fourth Amendment. In Lovvorn, municipal fire fighters were required to undergo drug testing of blood and urine samples in a department-wide program.  The program was intended to be substantially similar to an earlier testing program in which all emergency service personnel were given formal notice six days before the actual testing. Some of the tested subjects who were required to give a urine specimen were subject to a "pat-down" at the discretion of the City Fire and Police Commissioners.  Most of the fire fighters were required to give urine samples in direct observation of a Deputy or Assistant Fire Chief.  The tests were not conducted pursuant to any written orders, guidelines or standards.  Nor were methods for testing, handling or analyzing the urine samples or disciplinary procedures ever formalized in writing.  Clearly, the unstructured and discretionary nature of that program promoted a substantially greater intrusion than does the drug testing program [*559] here involved.  Indeed, the federal district court in Lovvorn intimated such a distinction:
 
"[T]here would seem to be [***26] no constitutional difficulty with the regularly conducted physicals or the requested physicals, or a pre-employment physical, even if they involve a urinalysis for drugs, provided that they are not used as a subterfuge to conduct an unreasonable search and seizure."
 
Lovvorn v. City of Chattanooga, Tenn., 647 F. Supp. 875, 881 n. 7 (E.D.Tenn. 1986). See also the statement in McDonell v. Hunter, 612 F. Supp. 1122, 1130 n. 6 (S.D. Iowa 1985), modified on other grounds, 809 F.2d 1302 (8th Cir. 1987):

   "The Fourth Amendment, however, does not preclude taking a body fluid specimen as part of a pre-employment physical examination or as part of any routine periodic physical examination that may be required of employees, nor does it prohibit taking a specimen of blood, urine, or breath on a periodic basis as a condition of continued employment under a disciplinary disposition if such a condition is reasonably related to the underlying basis for the disciplinary action and the duration of the condition is specified and is reasonable in length."
 
The federal district court in McDonell permitted drug testing as part of a [***27]routine periodical physical examination required of prison employees. And see City of Palm Bay v. Bauman, 475 So. 2d 1322 (Fla.App. 1985) (upholding drug urinalysis of city police and fire fighters performed as part of initial or annual physical examinations, but requiring reasonable suspicion for random testing).

   Any inquiry into reasonable expectations of privacy among government employees subject to drug testing programs manifestly requires focus on individual facts on a case-by-case basis.  See O'Connor v. Ortega, supra, 480 U.S. at 718, 107 S. Ct. at 1499. While the City's program in this case involves mandatory rather than random testing of the covered employees, we nevertheless note the existence of a number of cases upholding the constitutionality of [*560]suspicionless random drug testing in the public sector.  See, e.g., American Federation of Government Employees v. Skinner, 280 U.S. App. D.C. 262, 885 F.2d 884 (D.C.Cir. 1989) (suspicionless random drug testing of federal transportation workers is constitutional); National Federation of Government Employees v. Cheney, 280 U.S. App. D.C. 164, 884 F.2d 603 (D.C.Cir. 1989) [***28](suspicionless random urinalysis of civilian employees in military positions involving [**680] aviation, police/guard and drug abuse/treatment programs is constitutional); Harmon v. Thornburgh, 278 U.S. App. D.C. 382, 878 F.2d 484 (D.C.Cir. 1989) (suspicionless random urinalysis of Department of Justice employees holding top secret national security clearances is constitutional); Guiney v. Roache, 873 F.2d 1557 (1st Cir. 1989) (suspicionless random drug testing of city police is constitutional); Policeman's Benev. Ass'n of N.J. v. Washington Tp., 850 F.2d 133 (3rd Cir. 1988) (suspicionless random drug testing of city police is constitutional); McDonell v. Hunter, 809 F.2d 1302 (8th Cir. 1987) (systematic random urinalysis of prison employees having daily contact with prisoners is constitutional); Weicks v. New Orleans Police Dept., 706 F. Supp. 453 (E.D.La. 1988) (suspicionless random urinalysis of special division members in city police department is constitutional); Caruso v. Ward, 72 N.Y.2d 432, 534 N.Y.S.2d 142, 530 N.E.2d 850 (1988) (suspicionless random drug testing of city [***29] police in organized crime control bureau is constitutional).  Other cases have found random drug testing constitutional only in the presence of some degree of suspicion.  See, e.g., Copeland v. Philadelphia Police Dept., 840 F.2d 1139 (3rd Cir. 1988) (police officers), cert. denied, 490 U.S. 1004 109 S. Ct. 1636, 104 L. Ed. 2d 153 (1989); McDonell v. Hunter, 809 F.2d 1302 (8th Cir. 1987) (prison employees not having daily contact with prisoners); National Federation of Federal Emp. v. Carlucci, 680 F. Supp. 416 (D.D.C. 1988) (civilian Army employees); aff'd in part, vacated in part, National Federation of Government Employees v. Cheney, 280 U.S. App. D.C. 164, 884 F.2d 603 (D.C.Cir. 1989); Wrightsell v. City of Chicago, 678 F. Supp. 727 (N.D.Ill. 1988) (police officers not tested as part of routine, reasonably-required medical examination); [*561] Smith v. White, 666 F. Supp. 1085 (E.D.Tenn. 1987) (nuclear plant employees), aff'd, 857 F.2d 1475 (1988); American Federation of Gov. Employees v. Weinberger, 651 F. Supp. 726 (S.D.Ga. 1986) [***30] (Department of Defense civilian police officers holding "critical" jobs); Bostic v. McClendon, 650 F. Supp. 245 (N.D.Ga. 1986) (police officer and court clerk); Capua v. City of Plainfield, 643 F. Supp. 1507 (D.N.J. 1986) (fire fighters); Turner v. Fraternal Order of Police, 500 A.2d 1005 (D.C.App. 1985) (police officers); City of Palm Bay v. Bauman, 475 So. 2d 1322 (Fla.App. 1985) (police officers and fire fighters not tested during regularly scheduled periodic physical examinations).

   As the present case involves suspicionless mandatory drug testing of uniformed police and fire personnel, we have no occasion to consider whether random drug testing, not based on reasonable suspicion, unconstitutionally invades reasonable expectations of privacy. We are, however, constrained to note that a purely random physical examination program for the purpose of drug testing would likely necessitate more stringent review.  This is so because privacy expectations in that posture would appear to be greater than, as here, where providing urine samples during routine physical examinations is accepted by employees as essential [***31] for continued employment in safety-sensitive professions.

   (B)

   Governmental Interests

   In Von Raab, the Court was confronted with determining whether the governmental interest asserted by the Customs Service was sufficiently compelling to justify an infringement on privacy expectations occasioned by the drug testing program. It identified two governmental interests of a compelling nature that in some circumstances would support a drug testing program impacting upon reasonable expectations of privacy in the absence of a suspicion requirement.  "It is readily apparent that the [*562] Government has a compelling interest in ensuring that front-line interdiction personnel are physically fit, and have unimpeachable integrity and judgment."£ Von Raab, supra , 109 S. Ct. at 1393. Likewise, "[t]he public interest . . . demands effective measures to prevent the promotion of drug users to positions that require the incumbent to carry a firearm, even if the incumbent is not engaged directly in the interdiction of drugs."£ Id.£ The Court agreed with the Customs Service that "the public should not bear the risk that employees who may suffer from impaired [***32] [**681] perception and judgment will be promoted to positions where they may need to employ deadly force."£ Id.£ The Court apparently equated such risks to those in Skinner where even a momentary lapse of attention by certain railroad employees could cause "disastrous consequences," before any signs of impairment become noticeable by supervisors or others.  Id.; see also Skinner, supra, 109 S. Ct. at 1419.

   Police officers in Annapolis encounter similar if not equal levels of danger as the Customs Officers in Von Raab who carry firearms.  Police are presented each day with unanticipated dangers; they are often called to respond quickly and instinctively to situations that may require the use of deadly force.  They are permitted to carry firearms whether on duty or off, and are vested with individualized discretion in the use of those firearms.  Mistakes in judgment or perception while using deadly force or while operating a vehicle at high speeds could give rise to the same injurious consequences as a momentary lapse of attention attributable to drug use. Fire personnel are also uniquely charged with duties to respond quickly and effectively at a [***33] moment's notice. Impaired abilities caused by drug use may beget delays in responding to fires or other public emergencies.  A few minutes could mark the difference between saving one or several occupants in a building, or losing the occupants and/or the structure in a blaze.  As noted in Lovvorn, supra, 846 F.2d at 1544:
 
"Fighting fires is perhaps the most dangerous and hazardous of all professions. It is imperative that those who [*563] are charged with the public responsibility of extinguishing fires, sometimes risking their own lives for the sake of someone trapped, be free of the debilitating influences of controlled substances.  It is well established that the use of such substances, such as marijuana, can adversely affect one's perception, decision-making time, short-term memory, motor skills, and judgment.  Firefighters so affected become a risk to themselves, their fellow fire fighters, and those depending on them for rescue.  We have no hesitation, therefore, in recognizing the compelling nature of the City's interests in keeping its fire fighters free from the effects of illegal drugs."

   We recognize that Von Raab seemingly expressed the [***34] view that Customs Officers at the nation's borders may encounter threatening circumstances greater than elsewhere in the country, and that considerable deference was therefore due to the government when conducting "national security" services. However, the mission of municipal police officers can hardly be minimized for they are indeed "front-line soldiers" charged on a day-to-day basis with the onerous and dangerous duty of drug interdiction within their jurisdiction.  City fire fighters also assume a responsibility for twenty-four hour preparedness in answering all calls, no matter the degree of danger involved.  The daily work of police and fire personnel clearly "depends uniquely on their judgment and dexterity."£ See, Von Raab, supra, 109 S. Ct. at 1394. The City's interest in the safety of uniformed police or fire personnel, their co-workers, and the public served by them is of a sufficient compelling nature that, in our view, substantially outweighs the negligible private interest here involved.  The nature of the intrusion in the City's drug testing program is, we think, significantly less than that in Von Raab, while the governmental interest [***35]must be afforded comparable weight.

    Suspicionless Drug Testing

   As already noted, there is not a great privacy expectation in the drug analysis of employees' urine produced [*564] in this regular examination procedure.  A warrant requirement would add little protection to that privacy. The essential purposes of a warrant are protecting privacy interests from arbitrary acts of government and ensuring that only objective determinations shall conclude when an intrusion is justified.  Skinner, supra, 109 S. Ct. at 1415. Those purposes are not here jeopardized; there is simply no room for abuse of discretion involved with the City's testing procedure.  In Von Raab, the Court said, "[b]ecause the [Customs] Service does [**682] not make a discretionary determination to search based on a judgment that certain conditions are present, there are simply 'no special facts for a neutral magistrate to evaluate.'"£ Von Raab, supra, 109 S. Ct. at 1391 (citation omitted).  Similarly, the City's program requires suspicionless drug testing only in the context of an employee's physical examination, which occurs only in the month of the employee's [***36] birthday.  The most frequent testing is once a year; others are either tested once every two years or once every three years.  There is absolutely no discretion exercised in determining when an employee will be tested for drugs; the potential for abuse or harassment by the employer is negligible at best.

   Under the City's program, as with the program in Skinner, "the circumstances justifying toxicological testing and the permissible limits of such intrusions are defined narrowly and specifically . . ., and doubtless are well known to covered employees."£ Skinner, 109 S. Ct. at 1415. The City's program states clearly, without question, the circumstances and limitations of the drug testing during the physical examinations.

   A reasonable suspicion requirement is unwarranted under the facts before us. The intrusion invades no privacy interest sufficient to counter the compelling interest in deterring and detecting the drug-impaired fitness of uniformed police and fire personnel. Merely because there presently is no known illegal drug use among the covered employees does not compel its condemnation on Fourth Amendment grounds.  A documented drug problem [***37] need [*565] not exist within the place of employment.  See Von Raab, 109 S. Ct. at 1395, where the Court held that the value in deterring drug use among the Custom Service officers was as equally compelling as the goal of preventing the promotion of drug users to sensitive positions in the Service.  Although the advance notice provisions here may arguably enable some employees to avoid detection in some instances, an employee who uses illegal drugs is nevertheless at risk in producing a positive test result.  An addict may find it impossible to abstain; an occasional user cannot predict with certainty the time in which the body removes all traces of a particular drug.  The risk of detection may prevent an employee from continuing or even initiating the use of illegal drugs.  The City program is plainly structured toward deterring illegal drug use in the same manner as in Von Raab.

   Because there are substantial risks to even one employee acting in the line of duty while impaired by drugs, an employer does not act unreasonably by not awaiting the occurrence of such an incident before initiating a drug testing program. A reasonable suspicion requirement [***38] assumes that another employee, supervisor, or an informant will detect and report the illegal drug use.  It further assumes that an observer is capable of detecting drug impairment.  A clear possibility exists that a police or fire employee under the influence of drugs may escape detection for a short time-period.  The nature of police and fire related employment involves emergencies.  At times any given employee may be indispensable.  The City could reasonably have determined that to expect employees to monitor their co-workers for drug impairment during unexpected occurrences demanding immediate action would likely jeopardize the need for safe and responsive police and fire departments.

   With regard to drug use detection, the reasoning in Von Raab is applicable here.  "Detecting drug impairment on the part of employees can be a difficult task, especially where, as here, it is not feasible to subject employees and [*566]their work-product to the kind of day-to-day scrutiny that is the norm in more traditional office environments."£ Id. at 1395.  Although individual police and fire employees may spend much of their working time in the presence [***39]of co-workers, there are many occasions when they are off-duty and beyond routine observation.  Off-duty drug use can certainly impair on-duty job performance.  Furthermore, these employees, even while off-duty, may be called to respond to certain emergencies.  Indeed, there is a compelling government interest here, as in Von Raab, in ensuring that the employees do not use illegal drugs even while off-duty.  Possible [**683] detection of drug impairment in those circumstances is difficult, if not impossible, until the moment that the employee is called into action.  Obviously, this is too late.  The drug testing here serves the same ultimate objective of the regular physical examinations, i.e., detection of problem before an employee is physically impaired in his or her job.

   IV.

   For the reasons stated, we conclude that the circuit court erred in enjoining the City "from implementing and enforcing the mandatory drug testing program at issue in this case."£ In so holding, we do no more here than find that the proposed drug testing program of police and fire personnel, as set forth in the Appendix to this opinion, is not facially at odds with the Fourth Amendment simply because it is [***40] not based on reasonable suspicion of illegal drug use by covered employees. n4

n4 The unions and Amicus Curiae suggest that the warrant and unreasonable search and seizure provisions of Article 26 of the Maryland Declaration of Rights are violated by the City's proposed drug testing plan.  This is so, they contend, even if we find that the Fourth Amendment has not been violated.  Of course, the two constitutional provisions are in pari materia, and while each provision is independent of the other, we find no basis for concluding that Article 26 is transgressed under the facts of this case.  See Widgeon v. Eastern Shore Hosp. Center, 300 Md. 520, 532, 479 A.2d 921 (1984); Gahan v. State, 290 Md. 310, 319-20, 430 A.2d 49 (1981) and Attorney General v. Waldron, 289 Md. 683, 714, 426 A.2d 929 (1981).

   [*567] JUDGMENT REVERSED; COSTS TO BE PAID BY THE APPELLEES, UNITED FOOD AND COMMERCIAL WORKERS, LOCAL 400, et al.

   APPENDIX [***41]

   City of Annapolis Drug Testing Policy and Procedure
 
Policy Overview:

   The City of Annapolis has a vital interest in maintaining safe, healthful and efficient working conditions for its employees.  Being under the influence of a drug or alcohol on the job may pose serious safety and health risks not only to the user, and to those who work with the user, but also to the public we serve. The possession, use or sale of an illegal drug or alcohol in the work place may also pose unacceptable risks for safe, healthful and efficient operation.

   The City of Annapolis recognizes that its own health and the ability to provide a safe and high level of service to our citizens are dependent upon the physical and psychological health of its employees.  Accordingly, it is the obligation and intent of the City to maintain a safe working environment, to protect City property, equipment and operations, and to provide for the welfare of its citizens and visitors.

   With these basic objectives in mind, the City has established a drug testing program for City employees engaged in public safety, management, and other critical positions where the safety and health of its employees and citizens could be [***42] placed in jeopardy by the use of illegal substances.
 
Positions Affected:

   Uniformed Police

   Uniformed Fire

   Department Directors
 
[*568] When Tests Will be Conducted:
 
Uniformed members of the Police and Fire Departments and Department Directors are subject to periodic physicals during the course of their employment. Physicals are scheduled based on the employee's age as follows:

   18 thru 29 years of age -- every 3 years

   30 thru 39 years of age -- every 2 years

   40 + years of age -- every year
 
Drug testing will be conducted as a part of the scheduled physical by testing the urine routinely collected as part of that physical.
 
Scheduling of Physicals:

   Affected employees are scheduled for physicals to be conducted during their "birthday" month.
 
   Thirty (30) days prior to the physical the employee will be notified of the week during [**684] the "birthday" month during which the physical will be conducted.

   The employee will be notified at least 48 hours prior to the actual time of the examination.
 
(Example: If your birthday is in February and this is the year for your physical to occur, you already know that the physical will be scheduled to be conducted sometime in February.  [***43] Assume for this example that we have scheduled your physical 9:00 am, Thursday, February 18.  At least 30 days prior to that date you will be notified that your physical will be scheduled for the third week in February.  forty-eight (48) hours prior to the examination (by 9:00 am, Tuesday, February 16) you will be notified of the date and time your physical examination will be conducted).
 
Collection Site:
 
Primedical, 2661 Riva Road, Annapolis, Maryland has been designated as the site where periodic physicals will be conducted, including the collection of the urine sample upon which the drug test will be performed.
 
[*569] Collection Protocol:

   Procedures for collecting urine samples shall allow individual privacy and shall not be observed.
 
1. Identify patient (Photo ID), patient signs consent/release form
 
2. Medication form filled out, signed by both patient and collector, and reviewed with patient. NOTE: The patient must be able to provide proof of prescription listed; either a vial, a letter or written prescription from their doctor.
 
3. Sample Collection Procedure:
 
a. Patient removes coats, jackets, etc.
 
b. Patient is escorted to bathroom and given [***44] urine cup (Note: To prevent tampering, bathroom should be cleared of any soap or chemicals; tap may be turned off; wastebasket is removed so that a smuggled-in sample container cannot be disposed of easily).
 
c. Patient hands urine cup to collector.  Sample should not leave patient's or collector's sight until sealed and labeled.  Sample is to be examined for temperature, color, turbidity.  If there are any suspicions about the sample, the patient can be requested to submit another sample immediately.
 
e. Sample is placed into CompuChem Container and sealed.  Patient signs that the sample is his.
 
f. Order Entry/Chain of custody form is completed.
 
 g. Sample is stored in refrigerator until picked up by courier.
 
4. Inadequate Sample -- If testing lab calls collector with info that sample is not suitable for testing (leaky container, improper documentation, etc.) the person will be called and the same procedure will be followed from step 1.
 
Designated Laboratory:
 
Maryland Medical Laboratory, Inc., Main Office: 1901 Sulfur Spring Road, P.O. Box 24080, Baltimore, Maryland [*570] 21227-0580 has been designated as the laboratory to conduct tests upon urine collected during [***45] the periodic physical.

   Both initial drug screening and confirmatory testing of positive specimens shall be conducted by Maryland Medical Laboratory.
 
Independent Testing:

   Employees may request independent testing of the same sample by another laboratory approved by the State Department of Health and Mental Hygiene in order to verify the test results, but the cost of such tests will be borne by the employee.
 
Test Results:

   Test results, positive and negative, will be hand delivered by laboratory courier to the Personnel Director in sealed envelopes as is now the procedure for routine laboratory findings resulting from the periodic physical.  The Personnel Director will immediately order the laboratory to conduct confirmatory testing for all samples reported as positive on the initial test.
 
[**685] Record Security and Access:

   Results of positive tests (initial and confirmatory) will be filed separate from an employee's personnel file.  Such file shall be in the Personnel Director's office and shall be locked when unattended.  Access to positive test results shall be restricted to:

   Personnel Director

   Employee

   Those authorized in writing by the employee.
 
Rehabilitation and Treatment: [***46]

   As part of its drug testing program, it shall be the policy of the City to rehabilitate, not retaliate.  It shall be the intent of the City to refer employees, who have been confirmed through testing to be users of controlled dangerous substances (Maryland Annotated Code, article 27,/s276 et seq.), to counselors at external agencies for evaluation [*571] and counseling or further referral to appropriate outpatient or inpatient treatment facilities. Professional counselors will make this determination for treatment and the extent of the problem.
  
Procedure:
 
1. Personnel Director, based on the confidential results of a confirmed positive drug test, will notify the employee verbally that there is a confirmed positive test.
 
a. Employee will be given a phone number to call immediately for a counseling appointment at no cost to the employee.
 
b. Personnel Director will authorize the facility to make the counseling appointment and request verification when the appointment is made.
 
2. If the employee has failed to make an appointment within two (2) working days, the Personnel Director will convey the results and referral instructions to the employee by letter to the employee's [***47] last known address.
 
3. If the employee fails to make an appointment within five (5) working days of the date of the notifying letter, the employee's department head will be notified by the Personnel Director of the employee's failure to comply.  (We feel that an Employee Assistance Program that provides this initial assessment, counseling, and referral for treatment or rehabilitation is a critical and mandatory component in our rehabilitation efforts.  Failure of the employee to avail him or herself of this assistance must not be taken lightly and every effort must be made to have the employee's problem assessed to determine if indeed a substance abuse problem exists, and if so, the extent of the problem).
 
4. The counseling and referral service will determine during the initial appointment if a substance abuse problem exists and the extent of the problem. A determination will be made to refer the employee to either outpatient, inpatient treatment, or no treatment indicated.
 
[*572] 5. Employees will be allowed to use available accrued sick leave or authorized leave of absence while undergoing treatment.
 
6. Treatment programs are covered by the City's health plan through specific [***48]riders covering alcohol, drug, and psychological counseling and treatment.
 
7. The Personnel Director will be provided periodic updates on the treatment progress of the employee.
 
8. The City's Disability Insurance program may be applied for by the employee during the period of treatment.
 
9. If the employee is referred to the 28 day inpatient treatment facility, their position (job) will be held open pending their return at the completion of the treatment program.
 
10. If the employee is referred to an outpatient program, and allowed to remain on the job while undergoing rehabilitation, dependent upon the severity and depth of the substance dependency, as determined by initial assessment counseling, and upon advice of the counseling professional, the Personnel Director may, in consultation with the Department Director order the employee to be placed in administrative duties [**686] until sufficient rehabilitation has occurred as specified by the treating agency in writing.
 
11. Following rehabilitation, and treatment, and the employee's return to full duties, the employee may be subject to random testing by the employer based on reasonable suspicion.
 
12. A second positive test result during [***49] the term of employment with the City will result in charges and dismissal subject to grievance and appeal procedures in effect.
 
Voluntary Treatment:
 
Nothing in this program shall prohibit employees from voluntarily seeking counseling and treatment.

                       
Mary Louise RISTAINO et al. v. Linda Ann FLANNERY 
No. 116, September Term, 1988
 
Court of Appeals of Maryland
 
317 Md. 452; 564 A.2d 790; 1989 Md. LEXIS 148

 October  16, 1989

   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 VACATED AND 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 CASE 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 RESPONDENT.

CORE TERMS:  happening, presumption of negligence, center line, collision, prima facie negligence, prima facie, driven, driver, inference of negligence, crossed, curve, evidentiary presumption, motor vehicle, loquitur, jurors, ipsa, driving, chute, evidence of negligence, burden of persuasion, prima facie evidence, instruct, skidding, traffic, subset, speed, roadway, prayer, gate, guilty of negligence

COUNSEL: Michael T. Ward (Law Offices of Peter G. Angelos, both on brief), both of Baltimore, Maryland, for petitioner.

   Allen W. Cohen (Goodman, Cohen & Bennett, P.A., both on brief), both of Annapolis, Maryland, for respondent.

JUDGES: Murphy, C.J., and Eldridge, Cole, Rodowsky, McAuliffe, Adkins and Blackwell, JJ.  McAuliffe, Judge, concurring.

OPINIONBY: RODOWSKY

OPINION: [*454] [**791] This automobile collision, personal injury case was tried before a jury and resulted in a defendant's verdict.  We granted certiorari to consider the following question:
 
"Is it reversible error to instruct the jury that the mere happening of the accident creates no presumption of negligence on the part of the defendant where the manner in which the accident happened does indeed [***2] create a rebuttable presumption of negligence?"
 
 As explained below, our forthright answer is, "It all depends."£ In the case before us the giving of the instruction constituted reversible error.

   Petitioners, Mary Louise Ristaino (Mrs. Ristaino), Carmen A. Fowler, a minor (Carmen), and Mary Fowler, Carmen's mother and natural guardian, were plaintiffs in the trial court (collectively, Plaintiffs).  On December 4, 1981, Mrs. Ristaino and Carmen were passengers in an automobile being driven by Antonio J. Ristaino (Mr. Ristaino) when a collision occurred between that vehicle and an automobile driven by the respondent, a defendant in the trial court, Linda Ann Flannery (Flannery or Defendant). n1£ The collision occurred at about 2:54 p.m. The weather conditions [*455] were overcast skies, with drizzling, but no freezing.  Flannery was proceeding westbound, and the Ristaino vehicle was eastbound on Maryland Route 450 which has only one lane for each direction of traffic. At a point approximately two-tenths of a mile west of the South River Bridge the road curves to [**792] the right for westbound traffic. The posted speed limit for the curve was thirty m.p.h.  Flannery failed to negotiate [***3] this curve, came over the center line and struck the Ristaino vehicle.  It was then standing on the shoulder of the eastbound lane of the highway where Mr. Ristaino had driven and then stopped in an effort to avoid the collision with the Flannery car which had come across the center line approximately one hundred feet before the impact.

n1 Prior to trial Mr. Ristaino and another passenger in his car, Teresa Ristaino, settled their claims.  Flannery's father, who was also sued on an agency theory, obtained a summary judgment.

   Flannery testified that she had been traveling forty m.p.h. at the bridge, that she took her foot off the accelerator because of the upcoming curve and that her speed had decreased to what she thought was a safe speed as she entered the curve. She said she crossed the center line because her car went into a skid and that she tried to pull out of the skid by steering away from the Ristaino car.

   One of the passengers in the Ristaino car, Teresa Ristaino, estimated the speed of the Flannery vehicle [***4] to have been forty-five m.p.h.

   Among its instructions the court charged the jury that "the mere happening of an accident complained of creates no presumption of negligence on the part of the [d]efendant," that "skidding of and in itself is not alone by itself evidence of negligence," and that "[a] driver who violates the rule of the road . . . is prima facie guilty of negligence where the violation directly and proximately causes a collision . . . ."£ The court also instructed that there was no evidence of contributory negligence.  Plaintiffs excepted to the mere happening charge as "inappropriate" in a case where "the vehicle crossed the center line and there is . . . prima facie evidence of negligence on the part of the Defendant and where the burden of going forward with the evidence shifts to the Defendant . . . ."

    [*456] The jury's verdict was in favor of Defendant and judgment was entered accordingly.  Plaintiffs appealed to the Court of Special Appeals which affirmed on an analysis involving the nature of true evidentiary presumptions and the weighing of costs and benefits.  Ristaino v. Flannery, 76 Md.App. 662, 547 A.2d 1115 (1988). We then [***5] granted Plaintiffs' petition for certiorari which raises only the question set forth in the introductory paragraph of this opinion.

   Plaintiffs submit that proof that an accident was caused by a motorist's crossing the center line of a highway gives rise to a "presumption" of negligence and that, by also instructing that there was no presumption of negligence arising from the mere happening of the accident, the trial court mislead and confused the jury to the prejudice of Plaintiffs' case.  Defendant argues that the presumption is only prima facie and rebuttable and that it allows for proof and a finding that the accident is not due to the negligence of the party sued.  Consequently, to avoid having the jury believe that, because there was an accident someone must be held responsible, Defendant asserts the mere happening instruction was appropriate here.

   We can decide the issue presented in this case without becoming embroiled in applying the law applicable to presumptions as such, "the slipperiest member of the family of legal terms, except its first cousin, 'burden of proof'."£ E. Cleary, McCormick on Evidence § 342, at 965 (3d ed. 1984) (McCormick).  To support their contention [***6] that the rule of the road violation gives rise to a presumption, Plaintiffs cite Cocco v. Lissau, 202 Md. 196, 95 A.2d 857 (1953). There, speaking of the statute requiring a motor vehicle to be driven on the right half of the roadway, we said:

   "A driver who violates this 'rule of the road' is prima facie guilty of negligence where the violation directly and proximately causes a collision and injury to another traveler on the road, and the burden is then cast upon the driver to overcome the presumption of negligence by showing that under the circumstances, such as the condition of the road or an emergency in the traffic, he was [*457] justified in driving in the center or upon the left half of the road.  We emphasize, however, that a violation of this rule does not constitute negligence except when it [**793] is the direct and proximate cause of the injury."
 
Id. at 199, 95 A.2d at 858. See also Virginia Freight Lines v. Montgomery, 256 Md. 221, 225-26, 260 A.2d 59, 61 (1969). In addition to sometimes meaning a true evidentiary presumption, "prima facie" is commonly used to describe [***7] the production, by the proponent of the existence of a fact, of evidence sufficient to support a finding of the existence of the fact.  See McCormick § 342, note 4; Thomsen, Presumptions and Burden of Proof in Res Ipsa Loquitur Cases in Maryland, 3 Md.L.Rev. 285, 289 (1939) (Thomsen).  And "presumption" is sometimes "used as a synonym for 'inference,' an act of reasoning."£ Thomsen at 288.

   These ambiguities appear in the authority first cited in Cocco in support of the proposition quoted above, Kelly v. Huber Baking Co., 145 Md. 321, 125 A. 782 (1924). Kelly involved a motor vehicle collision on a two-lane roadway. Each operator testified that the other's vehicle had overhung the center line. This Court held that it was error to instruct that the jury must find for the defendant if it found that the defendant was to the right of the center line at the moment of the collision. Judge Offutt, writing for the Court, said:

   "While it has been generally held that a violation of such a statute may create a prima facie presumption of negligence, it has never been held in this State to be negligence per se."
 
[***8] Id. at 334, 125 A. at 787. Then, quoting Huddy on Automobiles, Ch. 297, the Court explained:
 
"'The distinction between mere "evidence of negligence" and "negligence per se" is very marked, in that in the former there must be an adjudication as to whether or not the violation constitutes negligence, whereas in the latter negligence necessarily follows the proof of the violation.  * * * The rule is different in some jurisdictions where the regulation involved relates to the so-called [*458] "law of the road."£ Driving on the wrong side of the road is not so clearly a wrongful act as driving at a prohibited speed, for the circumstances may be such as to excuse a violation of the law of the road. Hence the violation is generally said to be prima facie negligence, and the violator of the rule is given an opportunity to rebut the inference of negligence arising against him.'"
 
Id. at 335-36, 125 A. at 788.

   If violation of the rule of the road requiring a motor vehicle ordinarily to be driven to the right of the center line creates a true evidentiary presumption of negligence, its foundation as a presumption [***9] lies in probability. See McLain, Maryland Evidence § 301.3, at 221 (1987).  That same foundation will also give rise to an inference of negligence. In the case sub judice it does not make a particle of difference whether, from the evidence that Flannery crossed the center line, Plaintiffs' proof of Flannery's negligence arose as an inference or by operation of a presumption.  The distinction between a true evidentiary presumption and an inference, when used to prove primary negligence, is important as to the defendant's risk of a directed verdict for the plaintiff. See McCormick § 342, at 965.  The risk arises if the defendant fails to meet the burden of going forward with evidence "[]sufficient to be considered by the jury in rebuttal of the presumption . . . ."£ Grier v. Rosenberg, 213 Md. 248, 255, 131 A.2d 737, 740 (1957). Here, Flannery came forward with evidence and Plaintiffs do not contend they were erroneously denied a directed verdict on liability.

   The presumption-inference distinction may also bear importantly on instructions.  See Grier (plaintiff entitled to an instruction properly explaining the presumption of agency [***10] from vehicle ownership).  In the instant matter, the trial court instructed that there was a presumption of negligence from a violation of a rule of the road, and Plaintiffs took no exception to that aspect of the charge.

   [*459] A true evidentiary presumption might also place the ultimate burden of persuasion concerning the subject of the presumption on the party against whom the presumption operates.  Compare McCormick [**794] § 344(B), at 979 ("Many writers came to the view that the better rule for all presumptions would provide that anything worthy of the name 'presumption' has the effect of fixing the burden of persuasion on the party contesting the existence of the presumed fact."£ (footnote omitted)) with Thomsen at 298 (interpreting Maryland cases through 1939 in which a rebuttable presumption was based on probability so as to put on the defendant a burden to go forward with the evidence, but not a burden of persuasion).  Here no exception has been taken to the trial court's assignment of the burden of persuasion on the issue of primary negligence.  Consequently, the question presented requires only that we decide whether the trial court erred, and, if so, whether prejudicially, [***11] in the way it combined the mere happening instruction with the prima facie negligence instruction.

   I

   As an abstract proposition, the position taken by Defendant in this case is correct.  The mere happening of an accident, even with resulting harm, e.g., that the plaintiff slipped and fell on the land occupier's premises, or that two motor vehicles collided, considered in a factual vacuum devoid of the surrounding facts and circumstances, does not involve any proof of negligence.

   Jurors, however, are not generally given to conceptualizing about accidents in the abstract.  When the trial judge instructs, jurors rightfully assume that the judge is talking about the case before them and is stating the law to be applied by the jurors, unless the instruction properly explains otherwise.  The problem of inconsistent instructions was well described in a California case where the plaintiff's evidence, if believed, would have been sufficient to support a finding of primary negligence under California's version of res ipsa loquitur and where the trial judge also gave a [*460] mere happening instruction.  In Shaw v. Pacific Greyhound Lines, 50 Cal.2d 153, 156, 323 P.2d 391, 392-93 (1958), [***12] the court said:

   "Although it is proper in many cases to give an instruction that the mere happening of an accident does not support an inference of negligence, a problem arises where, as here, there is evidence warranting the application of the doctrine of res ipsa loquitur. It is apparent that an instruction like the one quoted above contains an idea which might be understood by a layman to be inconsistent with the doctrine of res ipsa loquitur . . . .  The direction that the mere happening of an accident, considered alone, does not support an inference of negligence would appear to contradict the usual statement of the doctrine of res ipsa loquitur as found in the typical instructions given on the subject, namely, that an inference arises from the happening of the accident that the proximate cause of the occurrence was some negligent conduct on the part of the defendant.  In the absence of a proper explanation of the relationship between the two instructions, the words 'mere' and 'considered alone' might not prevent laymen from erroneously concluding that under no view of the evidence could an inference of negligence be drawn from the happening of the accident."

   The issues [***13] presented by the evidence at trial determine the instructions which a trial judge should give.  That general rule applies in a case of the subject type in which the plaintiff presents evidence of a primary fact, the violation of a rule of the road, and from that seeks to take advantage of an inference or presumption of negligence. Seemingly there are three subsets of the subject type of case.  In the first subset neither the primary fact nor the inferred or presumed fact are contradicted or reasonably controverted. There would be no issue about the defendant's negligence so that a mere happening instruction should not be granted.
 
   There can be a second subset in which the primary facts are in dispute and, consequently, the availability of an [*461] inference or presumption of negligence is also in dispute.  In this second class of cases there are, in a sense, two different accidents involved, depending upon whose testimony the jury believes.  If the defendant requests a mere happening instruction, it [**795]would ordinarily seem to be appropriate to grant the instruction, so long as it is made clear that it is the mere happening of the accident as described in the evidence most favorable [***14] to the defendant that does not give rise to a presumption of negligence. For example, in Kelly v. Huber Baking Co., there was a factual conflict over which vehicle crossed the center line. After verdict and judgment for the defendant, the plaintiff's appeal included among the points of claimed error the granting of a mere happening instruction.  The Court held that that instruction, referred to as defendant's first prayer, "state[d] general principles of law applicable to the facts of the case in a form which has been repeatedly approved by this Court, and [was] properly granted."£ 145 Md. at 329, 125 A. at 785. n2

n2 The defendant's first prayer, as granted in Kelly, read:

   "The Court instructs the jury that the mere happening of the accident complained of raises no presumption of negligence on the part of the servant of the defendant operating the automobile referred to in the evidence, but the burden is upon the plaintiff to establish by a preponderance of affirmative evidence that negligence on the part of said servant caused said accident, and if the minds of the jury are left by the evidence in a state of even balance as to the existence of such negligence, then the verdict of the jury must be for the defendant."
 
Record at 4-5.

[***15]

   The third subset of cases is illustrated here where the primary fact is uncontradicted and uncontroverted, and where the primary fact sufficiently supports an inference or presumption of negligence to get the plaintiff to the jury, but where the defendant sufficiently controverts the inference or presumption of negligence to generate a jury issue.  Under these circumstances our cases have found error when a mere happening instruction was given, without further explanation, in conjunction with a prima facie negligence [*462] instruction.  In State ex rel. Thompson v. Emerson & Morgan Coal Co., 150 Md. 429, 133 A. 601 (1926), the defendant was delivering coal to a house from its truck parked at the curb in front of the house.  Delivery was by means of a chute extending from the top of the truck, across the pedestrian sidewalk, and into the cellar of the house.  There was no dispute that the decedent was killed when the chute fell on her while she was wheeling a baby carriage under the chute. The defendant's evidence attributed the collapse to a latent defect in a link in a chain supporting the chute. On an appeal from a judgment entered on a verdict [***16] for the defendant we held that it was reversible error to have instructed "'that the mere happening of the accident complained of raised no presumption of negligence on the part of the defendant.'"£ Id. at 448, 133 A. at 608. We said that
 
"[s]uch an instruction in a case of this character is misleading and improper, because where an accident is caused by the operation of some instrumentality in the exclusive control of the defendant for which no explanation can be offered by the plaintiff, under circumstances which involve a breach of a duty on the part of the defendant to avoid injuring the plaintiff through the operation of such instrumentality, a presumption of negligence does arise from the mere happening of the accident."
 
Id., 133 A. at 608-09.

   In Pindell v. Rubenstein, 139 Md. 567, 115 A. 859 (1921), there was no substantive evidence to contradict testimony that the infant plaintiff had been injured when the defendant's large wooden gate in a fence fell on the plaintiff while the child was walking on the public sidewalk.  There was evidence for the plaintiff that one or more [***17] of the gate's hinges were defective or missing while the defendant testified that the gate was entirely in order. Judgment followed a verdict for the defendant.  Judge Offutt, who was later to write both Kelly and State ex rel. Thompson, wrote for the Court:

   [*463] "The fourth prayer, which instructs the jury that no presumption of negligence arises from the mere happening of an accident, and that the burden was on the plaintiff to prove that it was occasioned by the negligence of the defendants, was, under the circumstances of this case, not only misleading but incorrect, because if the plaintiff's evidence is [**796] accepted, this is one of that class of cases in which it may be inferred from the mere happening of an accident, when taken in connection with the circumstances surrounding it, that it was due to a breach of some duty on the part of the person controlling or responsible for the agency causing it . . . ."
 
Id. at 578, 115 A. at 863.

   The converse situation was presented in Lawson v. Clawson, 177 Md. 333, 9 A.2d 755 (1939), in which there was no dispute that the plaintiff had been injured in the collapse [***18] of a grandstand erected for spectators at a professional wrestling match.  Certain defendants argued on appeal that their requested instructions concerning the mere happening of the accident should have been granted.  This Court held the
 
"refusal was proper, inasmuch as appellee was injured under circumstances justifying an inference that his injuries would not have occurred had those persons in charge of the seating arrangements for the wrestling bout exercised ordinary care; moreover, since negligence could be presumed as a rational inference from the facts before the jurors, the instructions as offered were calculated to mislead rather than help them."
 
Id. at 342, 9 A.2d at 759.

   In the instant case, the fact that Flannery crossed the center line was neither contradicted nor controverted so that it would have been error to give a mere happening instruction without a very clear explanation.  Indeed, in cases of the instant type it is better practice not to give any mere happening instruction, even with an attempted explanation.

   [*464] II

   The question then resolves itself to whether the instructions as a whole, actually given in this case, [***19] were so clear as not to be erroneous or, at least, not to be prejudicially erroneous.  The certiorari question is framed in terms of "reversible" error.  Further, under Maryland Rule 8-131(b)(1), we "may consider whether the error was harmless or non-prejudicial even though the matter of harm or prejudice was not raised in the petition or in a cross-petition."

   The instruction given in this case told the jury that "just because two vehicles come together, doesn't prove in and of itself anything."£ The court cautioned the jury that it would "have to watch [the mere happening instruction] because later on I'm going to get to a place where there is prima facie evidence of negligence . . . ." n3£ Similarly, the instruction on skidding was "that skidding of and in itself is not alone by itself evidence of negligence." n4£ Two pages further on in the transcript of the charge the court reached the prima facie negligence instruction and referred back to the caution which it had given the jury in the mere happening instruction.  ("Alright, remember I told you in some circumstances there may be a situation where you may find that a person is prima facie negligent."). n5

n3 The mere happening instruction in this case reads in full:
 
"You are instructed that the mere happening of an accident complained of creates no presumption of negligence on the part of the Defendant.  Now, you have to watch that because later on I'm going to get to a place where there is prima facie evidence of negligence or, let's strike the word 'is', where you conceivably could find prima facie evidence of negligence.  But just because there's an accident that occurs, just because two vehicles come together, doesn't prove in and of itself anything, just because a person's hurt doesn't mean that someone else is responsible or liable for damages to that hurt."
[***20] 

n4 The court went on to say:
 
"Skidding may be taken by you as evidence of negligence if and only [if] it was caused by the failure of the Defendant to take reasonable precautions to avoid it at the time."
n5 The balance of the prima facie negligence instruction reads:
 
"Alright.  A driver who violates a rule of the road and I'll give you rules of the road, our . . . our motor vehicle code in a minute, requiring vehicles to be driven, and this will be one of them that I'll give you in a minute but this happens to be . . . well, strike that.  Let me start all over again.  A driver who violates the rule of the road and I'll give you the rules in a minute, is prima facie guilty of negligence where the violation directly and proximately causes a collision and injury to another traveler on the road and the burden is then cast upon the driver to overcome the presumption of negligence by showing that under the circumstances such as the condition of the road or an emergency situation in traffic, he was justified in driving in the center or upon the left . . . upon the left half . . . of the roadway."

[***21]

   [*465] Here the trial judge clearly perceived the inconsistency between the mere happening [**797] and the prima facie negligence instructions, and the judge endeavored to reconcile them for the jury.  That effort at reconciliation, however, underscored the conflict more than the effort harmonized it.  In a case of this type the mere happening instruction operates only on an abstract level while the prima facie proof instruction operates in terms of the facts and circumstances of the case.  We doubt that the two instructions can be given without confusing the jury, in the absence of tying the instructions to a fairly full reference to the evidence.  See Rule 2-520(d). That was not done in the charge before us.  Because we find prejudicial error, we reverse.

   JUDGMENT OF THE COURT OF SPECIAL APPEALS VACATED AND 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 CASE 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 RESPONDENT.

CONCURBY: McAULIFFE

CONCUR: McAULIFFE, Judge, concurring.

   I concur in the result. 

The BOARD OF TRUSTEES OF the EMPLOYEES' RETIREMENT SYSTEM OFthe CITY OF BALTIMORE et al. v. MAYOR AND CITY COUNCIL OF BALTIMORE CITY.  YaleLUBMAN et al. v. MAYOR AND CITY COUNCIL OF BALTIMORE CITY 
Nos. 95, 104, September Term, 1987
 
Court of Appeals of Maryland
 
317 Md. 72; 562 A.2d 720; 1989 Md. LEXIS 126; 11 E.B.C. 1521

 September  1, 1989

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals, Circuit Court of  Anne Arundel  County, Judge Eugene M. Lerner.

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY MODIFIED SO AS TO GRANT THE MOTION FOR INTERVENTION AND TO REFLECT THE VIEWS SET FORTH IN THIS OPINION, AND AS MODIFIED, AFFIRMED.  IN NO. 95, COSTS TO BE PAID BY THE BOARDS OF TRUSTEES.  IN NO. 104, ONE-HALF OF THE COSTS TO BE PAID BY THE APPELLANTS AND ONE-HALF OF THE COSTS TO BE PAID BY THE MAYOR AND CITY COUNCIL OF BALTIMORE.

CORE TERMS:  ordinance, beneficiary, divestiture, pension, intervenor, commerce clause, doing business, variable, duty, divestment, interstate commerce, market-participant, foreign commerce, entity, regulation, impair, foreign policy, anti-apartheid, prudence, preempt, state law, portfolio, federal government, preempted, resident, stock, interstate, market participant, impermissible, invest

COUNSEL: George A. Nilson (Lee Baylin, Piper & Marbury, on the brief) Baltimore, for appellants in Appeal No. 95, Sept. Term, 1987.

   Douglas Foster (Martin S. Kaufman, Mid-Atlantic Legal Foundation, both of New York City and James R. Eyler, Stephen J. Hughes, Miles & Stockbridge, Baltimore, all on the brief), for appellants in Appeal No. 104, Sept. Term, 1987.

   Melvin J. Sykes and H. Russell Frisby, Jr. (Matthew W. Nayden and Melnicove, Kaufman, Weiner, SMouse & Garbis, P.A. on the brief), Baltimore, for appellee in Appeals Nos. 95 and 104, Sept. Term, 1987.

   AMICUS BRIEF of Baltimore Chapter of National Lawyers Guild, American Civil Liberties Union of Maryland, Maryland Chapter of the National [***2] Conference of Black Lawyers, Maryland Citizen Action Coalition, Pax Christi/Baltimore, the Archdiocese of Baltimore South Africa Coalition, The Baltimore Anti-Apartheid Coalition, The Johns Hopkins University Coalition for a Free South Africa Coalition, The Lutheran Community Center at Missiah, The Baltimore Emergency Response Network, The Homewood Friends Meeting, Neighborhoods Institute/Community Leadership Center, Baltimore Jobs with Peace, Nuclear Free America, Central America Solidarity Committee, The Baltimore Local of the Democratic Socialists of America, the UMBC Anti-Apartheid Coalition, and Mankekolo Mahlangu Ngcobo, filed by David Norken, Eleanor Montgomery, C. William Michaels and Deborah Weimer on the brief all from Baltimore.

   Amicus Curiae of Lawyer's Committee for Civil Rights Under Law in support of appellees, filed by Martin R. Gold, Robert P. Mulvey, Vicki F. Van Fleet and Gold, Farrell & Marks all from New York City and Conrad Harper, Stuart J. Land, Norman Redlich, William L. Robinson, Judith A. Winston and Gay J. McDougall, Washington, District of Columbia, all on the brief.

JUDGES: Murphy, C.J., and Eldridge, Cole, Rodowsky, McAuliffe, Adkins and Blackwell, JJ.

OPINIONBY: ELDRIDGE

OPINION: [*79] [***3] [**723] These cases involve numerous challenges to two Baltimore City ordinances requiring that Baltimore City employee pension systems divest their holdings in companies doing business in South Africa.

   The pertinent facts are as follows.  The City of Baltimore maintains three employee pension systems: The Elected Officials Retirement System (E.O.S.), the Fire and Police Employees Retirement System (F. & P.), and the Employees Retirement System (E.R.S.).  Each system is administered by a Board of Trustees, n1 which is responsible for ensuring that members and beneficiaries ultimately receive the benefits to which they are entitled.  As of December 31, 1986, the total sum accumulated in the three systems was approximately [*80] $1.2 billion. n2£ Virtually all of these assets are invested in either equities or common stocks (40% to 50%), fixed income instruments (40% to 50%), or cash and short-term equivalents.

n1 Although each system is independent and has its own Board of Trustees, the Trustees of the E.R.S. also serve as the Trustees of the much smaller E.O.S.

n2 The parties agreed that December 31, 1986, would be the date from which all calculations in this case would be made.

[***4]

   Under each system, members are entitled to specific future benefits (defined benefits).  In addition, the systems include a "variable benefits" program, which provides additional benefits that depend directly on the rate of return on the funds.  Under this program, if the rate of return in a given year exceeds 7.5%, then all of the excess between 7.5% and 10% goes toward the payment of additional benefits; in addition, if the rate of return exceeds 10%, then half the excess over 10% goes toward the payment of additional benefits while the City receives the other half. n3

n3 The variable benefit program does not provide for additional benefits on a one-time-only basis.  Instead, the money dedicated to variable benefits is placed in guaranteed investment contracts, which are similar to annuities. Under these contracts, eligible beneficiaries receive a sum equal to a certain percentage of their defined benefits; they will continue to receive that sum, generally, for as long as they live.  If money is available in subsequent years for the payment of further variable benefits, the new benefits are compounded with the benefits previously awarded.  Thus, as the system continues to generate variable benefits, the amount of a beneficiary's variable benefits and, consequently, the amount of his total benefits will continue to increase.

[***5]

   [**724] In 1986 the City Council of Baltimore passed, and on July 3, 1986, the Mayor of Baltimore signed, Ordinance No. 765, which amended Baltimore City Code (1976, 1983 Repl.Vol., 1986 Cum.Supp.), Art. 22, §§ (7)(a), (35)(a). Section 1(i) of the Ordinance provides that no funds of the E.R.S. or the F. & P. shall remain invested in, or in the future be invested in, banks or financial institutions that make loans to South Africa or Namibia or companies "doing business in or with" those countries. n4£ Section 1(ii) of the Ordinance states that [*81] entities doing business in or with South Africa, within the meaning of § 1(i), "shall be identified by reference to the most recent annual report of the Africa Fund entitled 'Unified List of United States Companies with Investments or Loans in South Africa and Namibia.'" n5£ Section 3 of the Ordinance further stipulates that divestiture shall occur within a two-year period.  That period began to run on January 1, 1987.  See § 2(b).  Section 2(d) empowers a Board of Trustees to suspend divestiture during this two-year period, provided that, before acting, the Board adopts a resolution.  Under § 2(e), the Board, in adopting such a resolution, [***6] must find:
 
"(1) That the rate of return on the funds [is] substantially lower than the average of the annual earnings on the funds over the past five years, and
 
(2) That continued divestiture under this ordinance will be inconsistent with generally accepted investment standards for conservators of pension funds notwithstanding the intent of this ordinance, or
 
(3) That divestiture under the divestiture program will cause financial losses to the funds."

n4 Namibia or "South West Africa" is a territory that has been administered by South Africa since 1921.  See 17 Encyclopaedia Britannica 300 (15th ed. 1977).  On December 14, 1988, South Africa signed an agreement providing for Namibian independence with elections to be held on November 1, 1989, and adoption of a new constitution several months thereafter.  The New York Times, Dec. 14, 1988, at A14.  The timetable for Namibia's transition to independence was set in motion on April 1, 1989, under the supervision of a United Nations Transitional Assistance Group.  The New York Times, April 2, 1989, at A3.  In this opinion, reference to South Africa will be deemed to include Namibia.

[***7] 

n5 Similarly, § 1(iii), which is not expressly challenged in this case, provides that entities doing business in or with Namibia "shall be identified through correspondence with the United Nations Office of the Commissioner for Namibia and the United Nations Center for Transnational Corporations."

   Finally, in § 2(f), the Ordinance specifies that, when adopting a suspension resolution, a Board must state in writing its standards and conclusions, and set forth the duration of the suspension; the period of suspension, however, [*82]may not exceed 90 days, and the two-year time period for divestiture is tolled during the suspension.

   Apparently because Ordinance No. 765 by its terms applies only to the E.R.S. and the F. & P., it was unclear whether the E.O.S. was also required to divest. As a result, the City Council passed and the Mayor signed Ordinance No. 792, which amended Baltimore City Code (1976, 1983 Repl.Vol., 1986 Cum.Supp.), Art. 22, § 23(b), to provide expressly that the City's divestiture program applies to the E.O.S. n6

n6 The Divestiture Ordinances represent the culmination of several years of legislative effort.  In 1983 the City Council considered, but rejected, Bill No. 1608, which, like Ordinance No. 765, called for divestiture over a flexible, two-year time period.  On September 23, 1985, the City Council unanimously adopted Resolution No. 42, which stated the City's intention immediately to proceed with the process of disinvestment.  In addition, this Resolution called upon the Boards of Trustees of the City's Retirement Systems to submit an investment proposal designed to encourage businesses in which the City's pension funds were invested to improve conditions for their nonwhite employees in South Africa and to take other steps in opposition to apartheid.  In response, on November 21, 1985, the Trustees adopted a resolution generally calling only for a ban on new investment in businesses that did not abide with the Sullivan Principles, a code of fair employment practices for businesses operating in South Africa.  The Divestiture Ordinances resulted in part from the perceived inadequacy of the Trustees' November 21 resolution.

[***8]

   [**725] As of November 1987, the two-year period for divestiture had not begun to run for the F. & P. and the E.R.S.  For each quarter since the Ordinances' effective date, the Trustees of those systems have found, among other things, that the "rate of return on the funds [has been] substantially lower than the average of the annual earnings on the funds over the past five years."£ Thus, as for those systems, the divestiture program has been suspended for successive 90-day periods.

   On December 31, 1986, the Trustees of each of the City's three employee pension systems, and two employee beneficiaries, filed this action against the Mayor and City Council of Baltimore, asking the Circuit Court for Baltimore City to [*83] declare the Ordinances invalid.  In support of this request, the Trustees contended: that § (1)(ii) of Ordinance No. 765 impermissibly delegates legislative power to the Africa Fund, a private entity; that the Ordinances unconstitutionally impair the obligation of the City's pension contracts with the systems' beneficiaries; that the federal Comprehensive Anti-Apartheid Act of 1986, Pub.L. No. 99-440, 100 Stat. 1086 (1986), preempts the Ordinances; that the Ordinances intrude [***9] on the federal government's exclusive power to conduct foreign policy; and that the Ordinances violate the Commerce Clause of the United States Constitution, Art. I, § 8, cl. 3.  On January 9, 1987, four pension fund beneficiaries, raising related arguments, moved to intervene on the side of the Trustees. n7

n7 In a three count complaint, the applicants for intervention argued that the Ordinances intruded on the federal government's exclusive foreign policy power, violated the Commerce Clause, and violated the beneficiaries' property rights "under the 'taking' clause of the Fifth and Fourteenth Amendments."

   The Trustees moved for summary judgment. n8£ After hearing argument on March 26, 1987, the circuit court denied the motion for summary judgment, finding it necessary first to determine facts concerning the Ordinances' financial impact. On April 6, 1987, the circuit court denied the motion to intervene. n9

n8 The applicants for intervention also filed a "proposed" motion for summary judgment.  The court stated that it would treat this motion and the supporting memoranda as an amicus brief if intervention were denied.

[***10] 

n9 In reaching this decision, the court first held that the applicants did not have "an unconditional right to intervene as a matter of law" under Maryland Rule 2-214(a)(1), since, under a contrary ruling, "every pensioner or prospective pensioner of the City retirement systems (a staggering multitude) would have to be made parties . . . ."£ The court then found no basis for intervention as of right under Rule 2-214(a)(2), concluding that the Trustees adequately represented the applicants' interests.  Finally, the court denied permissive intervention under Rule 2-214(b), noting that additional counsel would cause delay and that the applicants could adequately present their views in an amicus brief.

   [*84] During the trial, which took place between June 22 and July 10, 1987, the parties presented a large amount of highly technical evidence concerning the Ordinances' financial impact.  Thereafter the circuit court filed an opinion and a declaratory judgment containing numerous findings and conclusions.  The circuit court, based on the evidence of financial impact, held that "it cannot be concluded [***11] that the Ordinance[s] will impair the performance of the equity funds." n10£ In reaching this decision, the trial judge discounted the parties' evidence detailing the performance of other South Africa free (S.A.F.) equity funds:
 
"Some have fared better than the unrestricted equity funds of the same money manager; some fared worse.  Many did better than the [Standard & Poor 500 Index]. n11£ All the experts agreed, however, that the track records of these SAF funds is too short (less than three years) to be statistically significant."
 
[**726] Moreover, the court noted that "not one witness was able to express the opinion that the percentage return on the plaintiffs' equity investment will be reduced because of the Divestment Ordinance[s]."

n10 The parties had agreed that the Ordinances would not affect the funds' fixed income investments.

n11 The Standard & Poor 500, an index of approximately 500 stocks representing a cross-section of various sectors of the economy, is designed to reflect the movement of the market as a whole.

[***12]

   The circuit court indicated that the Ordinances barred investments in 120 of the 500 companies on the Standard & Poor 500 (S & P 500).  The court further recognized that these companies represent approximately 40% of the market capitalization of the S. & P. 500. n12£ Thus, the court found that, under the Ordinances, the pension systems' portfolio will have more investments in relatively smaller companies whose stock prices tend to be more volatile.  The court [*85] stated, however, that this was not necessarily a disadvantage, reasoning that in the long run such stocks perform as well or better than larger companies' stocks.

 n12 A corporation's market capitalization is equal to the number of shares outstanding multiplied by the price per share.  The market capitalization of the S. & P. 500 is, therefore, the combined market capitalization of all corporations listed on that index.

   The Trustees had attempted to show that the Ordinances would adversely affect their money managers' "active" style, which had proved very [***13] successful.  Generally, this style emphasizes investments in certain sectors of the economy in an attempt to surpass rather than merely to duplicate the market's performance. n13£ The circuit court found that, by eliminating some potential investments in certain sectors, the Ordinances would affect the active style.  Nonetheless, the court deemed any interference to be insignificant, concluding that "adequate SAF [South Africa free] replacement stocks can be found for each sector, even though the SAF companies will be replacing larger companies."

n13 Other forms of active management emphasize the application of certain criteria in the selection of individual stocks. Such criteria include yield and the ratio of price to book-value.

   The Trustees had also introduced evidence purporting to show that the Ordinances would diminish the quality of the pension systems' portfolio by requiring money managers to forego their "first choice."£ The circuit court disagreed, stating that "it is not axiomatic that the manager's second [***14]choice is inferior to the first."£ The court explained that money managers ordinarily invest in a limited number of companies with which they are familiar. n14£ Thus, the court found that the Ordinances would merely require money managers to do additional research in order to locate adequate replacement stocks.

n14 According to the Trustees, a money manager typically holds positions in from 40 to 60 companies.  By contrast, the record shows that approximately 5,000 stocks are publicly traded.

   The court did find that the Ordinances would affect the Short Term Investment Fund (S.T.I.F.).  The S.T.I.F. is a fund of very short-term investment paper that is pooled in a local bank with the funds of other owners and is issued to [*86]meet immediate or short-term liquidity requirements.  The Ordinances affect participation in the pooled S.T.I.F., since that fund invests in companies doing business in South Africa.  As comparable substitutes may not be readily available, the pension systems' S.T.I.F. may be forced to increase [***15]its ratio of investments in lower-yielding obligations, such as Treasury Bills.  Moreover, unlike the pooled S.T.I.F., most South Africa free S.T.I.F.s charge management fees.  These two factors, the circuit court found, would result in a decreased annual return on the pension systems' S.T.I.F. of .75% or $900,000.

   The court also found that the Ordinances require divestiture of 47% of the pension funds' equity portfolio and 10% of the fixed income portfolio. The parties agreed that replacing these holdings with S.A.F. investments would lead to some initial, one-time costs; however, they disagreed as to the extent of the costs. n15£ The Trustees had attempted to prove that, in addition to "explicit" costs (such as broker's fees or commissions), transactions of this magnitude adversely affect stock prices and thereby [**727] result in additional, "implicit" costs.  Noting that other experts reject this theory, the circuit court declined to credit the Trustees' evidence.  In addition, the court accepted the City's contention that the cost of transactions that would have occurred absent divestiture should be subtracted from the total costs of divestiture. Consequently, the court fixed the initial [***16] cost of divesting the funds' equity and fixed income portfolios at $750,000. n16

n15 The Trustees' expert placed this figure at between $4.4 million and $5.5 million.  According to the City's expert, the figure was only $540,000.

n16 Of this sum, the court found that $500,000 was attributable to divestment of the equity portfolio and $250,000 was attributable to divestment of the fixed income portfolio.

   Finally, the court observed that, because of the smaller size of S.A.F. companies, divestiture will result in a larger [*87] volume of trading. This in turn, the court found, will cause an annual increase in broker's commissions of $300,000.

   In summary, the trial court fixed the initial cost of divestiture at $750,000, or one-sixteenth of 1% of the funds' total value.  In addition, the court calculated that the ongoing cost of divestiture is $1.2 million per year ($900,000 for the S.T.I.F. and $300,000 for additional commissions), or one-tenth of 1% of the funds' total value.  The court reasoned [***17] further: "If the Pension Funds earn in excess of 10% (as has regularly been the case since 1984), the loss to the retirees is halved, since the City takes one-half of the excess earnings."£ Consequently, the court concluded that the initial cost to the systems' beneficiaries is actually only 1/32 of 1% and that the ongoing cost is actually only 1/20 of 1%. n17

 n17 Specifically, the trial judge found that "nothing in the evidence suggests that the Ordinance[s] will in any way jeopardize the amount or payment of defined benefits."£ He further found that, even assuming the existence of a contractual right to variable benefits, "the extent of the impairment is without legal significance."£ As noted previously, supra n. 3, variable benefits that have already accrued but are payable in the future are funded by guaranteed investment contracts purchased from insurance companies.  Thus, the Ordinances have no effect on these benefits.

   In light of the Ordinances' "minimal" effect and the "salutary moral principle" underlying [***18] them, the circuit court rejected the Trustees' impairment of contract argument.

   The court upheld § 1(ii) of Ordinance 765, which provides that entities doing business in South Africa shall be identified by reference to the Africa Fund's "Unified List."£ The circuit court construed the ordinance to mean that "[t]he Unified List is merely a 'reference,' which the Trustees may accept or reject," and that "the Trustees are the final authority to determine whether a company is disqualified."£ Accordingly, the court held that § 1(ii) did not impermissibly delegate legislative power to a private entity. The trial judge also rejected the Trustees' other challenges to the [*88] Ordinances. n18

n18 Additionally, in a number of interpretive rulings, the circuit court held: (1) that the power to suspend the divestiture program permits new investment, during the period of suspension, in companies doing business in South Africa; (2) that the two-year time period for divestiture must be extended for a further time equal to the length of any valid period of suspension; (3) that the Ordinances do not limit the number of times that the Trustees can suspend divestiture; and (4) that the Trustees can order suspension at any time before the time limit has run, even if total divestiture has already occurred.

   None of the parties has challenged these interpretative rulings.

[***19]

   The Trustees and the applicants for intervention both appealed to the Court of Special Appeals.  On the parties' joint request, we issued a writ of certiorari to consider the important issues presented.

   I.

   Initially, we shall address the denial of the motion by four pension fund beneficiaries to intervene on the side of the Trustees.  In denying the motion, the circuit court ruled that the applicants were not entitled to intervene as a matter of right under Maryland Rule 2-214(a)(1) or (2), and ruled that they would not be granted permissive intervention under Rule 2-214(b).

   We disagree that the applicants were not entitled to intervene as a matter of right [**728] under Rule 2-214(a)(2).  Rule 2-214(a)(2) provides in pertinent part:
 
"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 to protect that interest unless it is adequately represented by existing parties."

   Plainly the applicants, as beneficiaries, "clai[m] an interest [***20] relating to the property . . . that is the subject of the action."£ Moreover, a ruling upholding the Ordinances' validity would be res judicata in a separate action by the [*89] applicants.  Restatement (Second) of Judgments, § 41(1)(a) (1982).  See Ugast v. LaFontaine, 189 Md. 227, 233, 55 A.2d 705 (1947) (judgment for constructive trustee was res judicata in subsequent action brought by beneficiaries of constructive trust).  See also Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 593-594, 94 S.Ct. 806, 819, 39 L.Ed.2d 9 (1974). Consequently, the applicants are "so situated that the disposition of the action may as a practical matter impair or impede" their ability to protect their interests. n19£ Indeed, the trial court in its opinion did not find otherwise.

n19 We caution that, to show that the disposition of an action may as a practical matter impair or impede his ability to protect his interest, an applicant need merely show that he might be disadvantaged by the disposition of the action in which he sought to intervene; he need not make the additional showing that the disposition of that action would be res judicata as to him. See Citizens Coordinating Comm. v. TKU, 276 Md. 705, 711-712, 351 A.2d 133 (1976).

[***21]

   The basis for the trial court's denial of intervention as of right was the court's conclusion that the Trustees adequately represent the applicants' interests.

   In Citizens Coordinating Comm. v. TKU, 276 Md. 705, 713, 351 A.2d 133 (1976), we pointed out that under the intervention of right provision of former Rule 208, the rule requires only that the representation by existing parties "may be inadequate."£ In Maryland Radiological v. Health Serv., 285 Md. 383, 402 A.2d 907 (1979), which was also decided under former Rule 208, we adopted an "interest analysis" test to determine whether existing representation is adequate.  Referring to the discussion in 7A C. Wright & A. Miller, Federal Practice and Procedure § 1909 (1972), Judge Digges for the Court explained that test as follows (285 Md. at 390-391, 402 A.2d at 911-912):
 
"First, these authors suggest the obvious: If the potential newcomer's interest is not represented or advocated to any degree by an existing party, or if the existing parties all have interests that are adverse to those of the proposed intervenor, he is unrepresented [***22] and, assuming compliance with the other provisions of Rule 208 a, intervention [*90] should be permitted . . . .  Second, if the applicant's interest is similar but not identical to that of an existing party, 'a discriminating judgment is required on the circumstances of the particular case, but he ordinarily should be allowed to intervene unless it is clear that the party will provide adequate representation for the absentee.'£ Id. (footnote omitted).  Third, if the interest of an existing party and an intervenor-applicant are identical, or if an existing party is charged by law with representing a movant's interest, 'a compelling showing should be required to demonstrate why this representation is not adequate.'"
 
Also, in both the TKU case, 276 Md. at 712, 351 A.2d at 138, and the Maryland Radiological case, 285 Md. at 388 n. 5, 402 A.2d at 910 n. 5, we pointed out that intervention decisions under Rule 24 of the Federal Rules of Civil Procedure serve as a guide to interpreting the Maryland Rule.

   Because of his fiduciary duties to the trust's beneficiaries, a trustee is charged by law with representing the [***23] beneficiaries' interests. Consequently, in cases under Rule 24, F.R.Civ.P., courts often view the interests of a trustee and the beneficiaries as the same, conclude that the trustee will adequately represent the beneficiary's interests, and deny to the beneficiaries intervention as of right.  See, e.g., Heyman v. [**729] Exchange Nat. Bank of Chicago, 615 F.2d 1190, 1194 (7th Cir.1980); Peterson v. United States, 41 F.R.D. 131, 133-134 (D.Minn.1966); Kind v. Markham, 7 F.R.D. 265, 266 (S.D.N.Y.1945). The cases recognize, however, that where there is a conflict between the interests of the trustee and beneficiaries, or when other circumstances exist whereby the representation by the trustee may be inadequate, the beneficiaries will be granted intervention.  See, e.g., Swift v. Swift, 61 F.R.D. 595, 597-598 (E.D.N.Y. 1973); Peterson v. United States, supra, 41 F.R.D. at 134; Federal Home Loan Bank v. Long Beach Fed. S. & L. Ass'n, 122 F.Supp. 401, 435 (S.D.Cal.1954).

   [*91] The trustees of a public pension system do not necessarily occupy precisely the same position as [***24] the trustees of a conventional private trust.  It is true that, like ordinary trustees, the persons administering Baltimore's retirement funds are charged with fiduciary duties of loyalty and care toward the systems' beneficiaries. In the present case, however, the Trustees have obligations to the City as well.  As to variable benefits, which are the only benefits affected by the Ordinances, Baltimore City receives one-half of the systems' excess earnings over 10%.  Thus, with respect to these benefits, the City is a co-beneficiary.  Moreover, in this case the Boards of Trustees are agencies of Baltimore City, which is the party opponent in this litigation.  The Trustees are municipal officials with some responsibility to comply with the City's directives.  In essence, the Trustees are prosecuting this lawsuit against their employer.  The present case, therefore, is very different from an ordinary action brought on behalf of beneficiaries. In fact, it should be noted in this context that, during Baltimore's last mayoral election campaign, one of the issues between the candidates concerned the propriety of permitting the Trustees to prosecute an appeal in the present case.  See [***25] The Sun (Baltimore), August 29, 1987, at 5A.
 
   In light of the Trustees' peculiar role, we conclude that the beneficiaries' interests are "similar but not identical" to those of the Trustees.  See Maryland Radiological v. Health Serv., supra, 285 Md. at 390, 402 A.2d at 912. In our opinion it is not sufficiently clear, under the facts of the present case, that the Trustees will adequately represent the applicants.  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, who would be bound by our ruling.

   Consequently, under these circumstances, we hold that the Trustees may not adequately represent the applicants' interests.  Thus, the trial court erred in holding that the [*92] applicants were not entitled to intervene as a matter of right under Rule 2-214(a)(2). n20

n20 We are not persuaded that, because two beneficiaries have been named as co-plaintiffs, the interests of other beneficiaries are adequately represented. As the applicants point out (Brief at 52), "the prosecution and appeal of this action is being maintained under the authority and direction of the Trustees."£ It appears that the Trustees alone direct the conduct of the case and that the presence of the two beneficiaries as co-plaintiffs is largely nominal.

[***26]

   When a trial court has erroneously denied a motion to intervene, the ordinary remedy is to reverse and remand the case so that the intervenor may present the evidence that he originally would have produced.  See, e.g., Citizens Coordinating Comm. v. TKU, supra, 276 Md. at 714, 351 A.2d at 139. In the case at bar, however, the applicants took the position, during oral argument before us, that they do not desire a remand for this purpose.  Rather, they only wish to have the status of parties in the present proceeding before this Court and for all future proceedings in the case, including the right to seek review in the United States Supreme Court.  As a consequence, the circuit court's error does not require reversal.  Instead, we shall exercise our authority under Rule 8-604(e) to modify the circuit court's judgment so as to grant the applicants' motion to intervene.

   [**730] II.

   Section 1(ii) of Ordinance 765 provides that "[b]usiness entities doing business in or with the Republic of South Africa shall be identified by reference to the most recent annual report of the Africa Fund entitled 'Unified List of United States Companies With Investments or Loans in [***27] South Africa and Namibia.'"£ The Trustees contend that this provision constitutes an impermissible delegation of legislative power to a private entity.

   The City agrees that if the Trustees are bound by the South Africa Fund Unified List, and with respect to Namibia [*93] bound by the determinations of the United Nations' offices referred to in the Ordinances, then the Ordinances are unconstitutional (City's Brief, p. 31).  The City, however, urges that the language of the Ordinances is ambiguous, and it points to the circuit court's construction of the Ordinance No. 765 which was as follows:
 
"The directive in the Ordinance that [corporations doing business in or with South Africa] 'shall be identified by reference to the most recent annual report' of the Africa Fund Unified List is merely a 'reference,' which the Trustees may accept or reject." n21
 
Under the circuit court's construction, the City's argument continues, there is clearly no impermissible delegation of legislative power.

n21 The circuit court went on to point out that the Unified List itself stated that "this list should be used as a starting point for further investigation."

[***28]

   As the Court stated in Comm'n on Med. Discipline v. Stillman, 291 Md. 390, 413, 435 A.2d 747, 759 (1981), "[i]n the enactment of laws, the legislature acts in the exercise of a power conferred upon it by the people; it cannot validly redelegate its lawmaking authority to others."£ See Md. Co-op. Milk Producers v. Miller, 170 Md. 81, 88, 182 A. 432, 435 (1935); Brawner v. Supervisors, 141 Md. 586, 595-596, 119 A. 250 (1922); Bradshaw v. Lankford, 73 Md. 428, 430, 21 A. 66 (1891); Fell v. State, 42 Md. 71, 83 (1875); Hammond v. Haines, 25 Md. 541, 562 (1866). See also Anne Arundel County v. Fraternal Order, 313 Md. 98, 111, 114-115, 543 A.2d 841 (1988); Maryland Cl. Emp Ass'n v. Anderson, 281 Md. 496, 508-509, 380 A.2d 1032, 1039 (1977). This principle follows from the nature of representative democracy.  Pursuant to Article XI-A of the Maryland Constitution, and as authorized by Maryland Code (1957, 1987 Repl.Vol.), Art. 25A, the Baltimore City Council [***29] has the sole power to enact local legislation for the people of Baltimore City.  Cheeks v. Cedlair Corp., 287 Md. 595, 608-609, [*94] 415 A.2d 255 (1980). n22£ Thus, in enacting legislation, City Council members generally have no authority to substitute the judgment of others for their own judgment. Md. Co-op. Milk Producers v. Miller, supra, 170 Md. at 88, 182 A. at 435; Bradshaw v. Lankford, supra, 73 Md. at 430, 21 A. at 66.

n22 See also, e.g., Maryland State Administrative Board of Election Laws v. Talbot County, 316 Md. 332, 344-345, 558 A.2d 724 (1989); Griffith v. Wakefield, 298 Md. 381, 386, 388, 470 A.2d 345 (1984).

   The principle of nondelegation, however, is not absolute.  See Bradshaw v. Lankford, supra, 73 Md. at 430, 21 A. at 66. As this Court stated in Department of Transportation v. Armacost, 311 Md. 64, 72, 532 A.2d 1056, 1060 (1987), [***30] "[o]ur cases have long sanctioned delegations of legislative power to administrative officials where sufficient safeguards are legislatively provided for the guidance of the agency in its administration of the statute."£ Furthermore, the Court noted in Price v. Clawns, 180 Md. 532, 538, 25 A.2d 672, 675 (1942), that "[t]here are many instances in which authority is lodged in and permitted to private persons by the Legislature."£ See, Portsmouth Stove and Range Company v. Mayor and City Council of Baltimore, 156 Md. 244, 251-253, 144 A. 357, 360-361 (1929). Nonetheless, delegations of legislative authority to private entities are strictly scrutinized because, unlike governmental officials or agencies, private persons will often be wholly unaccountable to the general public.  See Group Health Ins. of N.J. v. Howell, 40 N.J. 436, 445, 193 A.2d 103 (1963); Fink v. Cole, 302 N.Y. 216, 224, 97 [**731] N.E.2d 873 (1951); Union Trust Co. v. Simmons, 116 Utah 422, 427-428, 211 P.2d 190 (1949); Note, The State Courts and Delegation of Authority [***31] to Private Groups, 67 Harv.L.Rev. 1398, 1402 (1954). n23

n23 For example, in Fink v. Cole, supra, the New York legislature had vested the Jockey Club, a private corporation, with broad discretion to license owners, trainers, and jockeys at horse races in that state.  The Court of Appeals of New York noted that the issuance of licenses is "essentially a sovereign power" and that the stewards of the Jockey Club, who wielded that power under the law, were "neither chosen by, nor responsible to the State government," 302 N.Y. at 224, 97 N.E.2d at 876. Consequently, the court held that the delegation of licensing power to the Jockey Club was "such an abdication as to be patently an unconstitutional relinquishment of legislative power . . . ."£ 302 N.Y. at 225, 97 N.E.2d at 876.

   [*95] A number of cases have held that no impermissible delegation takes place when a legislature merely adopts a fixed standard promulgated [***32] by a private entity. See, e.g., St. Louis, Iron Mt. & Southern Railway Co. v. Taylor, 210 U.S. 281, 28 S.Ct. 616, 52 L.Ed. 1061 (1908); Kingery v. Chapple, 504 P.2d 831, 836 n. 13 (Alaska 1972); City of Bakersfield v. Miller, 64 Cal.2d 93, 97-98, 48 Cal.Rptr. 889, 410 P.2d 393, cert. denied, 384 U.S. 988, 86 S.Ct. 1890, 16 L.Ed.2d 1005 (1966); City of Warren v. State Const. Code Com'n, 66 Mich.App. 493, 239 N.W.2d 640 (1976); People v. Shore Realty, 127 Misc.2d 419, 486 N.Y.S.2d 124 (1984); Meyer v. Lord, 37 Or.App. 59, 586 P.2d 367, 371 (1978); Dudding v. Automatic Gas Co., 145 Tex. 1, 193 S.W.2d 517, 520 (1946). But cf. Cawley v. Northern Waste Co., 239 Mass. 540, 132 N.E. 365 (1921).

   The Ordinance in the present case, however, does not incorporate a fixed standard but a standard that is subject to periodic revision by the Africa Fund. Section 1(ii) of Ordinance No. 765 [***33] requires the Trustees to employ the "most recent annual report" of the Africa Fund's Unified List.  Courts have frequently viewed the legislative incorporation of future changes or revisions in a standard promulgated by a private entity as an impermissible delegation of authority.  See, e.g., City of Tucson v. Stewart, 45 Ariz. 36, 40 P.2d 72, 80-81 (1935); Agnew v. City of Culver City, 147 Cal.App.2d 144, 153-157, 304 P.2d 788, 795-797 (1956); People v. Pollution Control Board, 83 Ill.App.3d 802, 38 Ill.Dec. 928, 404 N.E.2d 352 (1980); Gumbhir v. Kansas St. Bd. of Pharmacy, 228 Kan. 579, 618 P.2d 837, 843 (1980); State v. Crawford, 104 Kan. 141, 177 P. 360 (1919); Coffman v. State Board of Examiners in Optometry, 331 Mich. 582, 50 N.W.2d 322, 326 (1951); People v. Mobil Oil [*96] Corp., 101 Misc.2d 882, 422 N.Y.S.2d 589, 592 (1979); State v. Emery, 55 Ohio St. 364, 370, 45 N.E. 319 (1896); Hillman v. Northern Wasco County People's Util. Dist., 213 Or. 264, 323 P.2d 664, 674-675 (1958), [***34] overruled on other grounds in Maulding v. Clackamas County, 278 Or. 359, 563 P.2d 731 (1977); Woodson v. State, 95 Wash.2d 257, 623 P.2d 683, 685 (1980). n24

n24 The principle set forth in these cases does not apply to a delegation of a legislative power to another governmental entity. In our complex system of government, state and local as well as state and federal authority unavoidably intermesh.  See, e.g., Department of Transportation v. Armacost, 311 Md. 64, 82-83, 532 A.2d 1056 (1987) (to maintain eligibility for federal funds, General Assembly conformed state law to requirements of federal Clean Air Act); Price v. Clawns, 180 Md. 532, 538, 25 A.2d 672 (1942) (statute making it a crime to ride railroad except in compliance with railroad's regulations dovetailed with federal statutes dictating substance of railroad's regulations).  As a result, a legislature may ordinarily adopt a standard promulgated by another governmental entity, even if that standard is subject to modification by the other governmental entity.

[***35]

   On the other hand, courts have sometimes upheld legislative adoption of private organizations' standards which are periodically subject to revision, in limited circumstances such as where the standards are issued by a well-recognized, independent authority, and provide guidance on technical and complex matters within the entity's area of expertise.  See, e.g., Ex parte Gerino, 143 Cal. 412, 419, 77 P. 166 (1904); Colorado Polytechnic College v. State Board for Community Colleges and Occupational Education, 173 Colo. 39, 476 P.2d 38, 42 (1970); Rosenthal v. State Bar [**732] Examining Committee, 116 Conn. 409, 165 A. 211, 214 (1933); State v. Dee, 77 So.2d 768 (Fla.1955); Lucas v. Maine Com'n of Pharmacy, 472 A.2d 904 (Me.1984); Application of Hansen, 275 N.W.2d 790, 796-797 (Minn.1978), appeal dismissed, 441 U.S. 938, 99 S.Ct. 2154, 60 L.Ed.2d 1040 (1979); Appeal of Murphy, 482 Pa. 43, 393 A.2d 369 (1978), appeal dismissed, 440 U.S. 901, 99 S.Ct. 1204, 59 L.Ed.2d 449 (1979); [***36]State v. Wakeen, 263 Wis. 401, 407-412, 57 N.W.2d 364, 367-369 (1953); Potter v. New Jersey Supreme Court, 403 F.Supp. 1036, 1040 (D.N.J.1975), aff'd, [*97] 546 F.2d 418 (3rd Cir.1976). These cases usually involve accreditation or similar programs by established professional organizations. n25 

n25 In People v. Pollution Control Board, 83 Ill.App.3d 802, 38 Ill.Dec. 928, 404 N.E.2d 352 (1980), the court held invalid a statutory provision exempting from a noise control ordinance auto racing events sanctioned by, among others, a private group called the Association of Motor Sports.  The court deemed the provision an improper delegation.  In doing so, the court distinguished cases holding that bar applicants must graduate from American Bar Association-approved law schools (38 Ill.Dec. at 933-934, 404 N.E.2d at 357-358):
 
"[T]he State's interest in assuring qualified legal practitioners was commensurate with the A.B.A.'s interest in maintaining high standards among law schools.

   * * *
 
"The corporate purpose of the Association of Motor Sports is unrelated to the legislature's presumed intent [in enacting the exemption from the noise ordinance].  Therefore, we are not persuaded by the analogy to the ABA's law school approval process."

[***37]

   We need not in the present case express agreement or disagreement with the specific holding in any of the above-cited opinions of our sister states concerning delegation to private entities. It is sufficient to point out, in light of the prior decisions of this Court and the cases generally throughout the country, that if the Trustees are bound by the determinations of the private entities listed in the Ordinances, there arises a serious question concerning the validity of the Ordinances under Article XI-A of the Maryland Constitution.

   It is a settled "principle that a court will, whenever reasonably possible, construe and apply a statute to avoid casting serious doubt upon its constitutionality."£ Yangming Transport v. Revon Products, 311 Md. 496, 509, 536 A.2d 633 (1988). See, e.g., Craig v. State, 316 Md. 551, 552, 560 A.2d 1120 (1989); Heileman Brewing v. Stroh Brewery, 308 Md. 746, 763-764, 521 A.2d 1225 (1987); In re Criminal Investigation No. 1-162, 307 Md. 674, 685, 516 A.2d 976, 982 (1986); Davis v. State, 294 Md. 370, 377, 451 A.2d 107, 111 (1982). [***38]We agree with the circuit court and the City that this principle is fully applicable to the Ordinances. [*98] As Judge Greenfeld pointed out for the court below, the language of the Ordinances, designating the South Africa Fund's Unified List as a "reference," is reasonably subject to the construction that the Trustees are not bound by the list.  It is, in the words of the circuit court, "merely a 'reference' which the Trustees may accept or reject."

   The circuit court's construction of the Ordinances, which we uphold, avoids casting substantial doubt upon their validity under the cases dealing with delegation of legislative power to private entities. The Trustees have cited no case, and we are aware of none, indicating that it is an impermissible delegation of legislative authority for a legislative body to direct a government agency to use a private entity's list merely as an advisory reference, with the agency being free to decline to follow the list.

   Consequently, it is for Trustees to determine whether a particular company is doing business in South Africa.  While the view of the South Africa Fund must be taken into consideration, the Trustees may reject that view with regard [***39]to any particular company.
 
   The concept of "doing business" in a particular area involves a matter of degree.  If viewed expansively, "doing business" would encompass even the most tangential contacts with South African entities. On the other hand, if construed very narrowly, "doing business" might signify only actual ownership or control of productive assets, such as mines or factories, in South Africa.  Clearly, however, the City Council did not [**733] contemplate a definition so narrow as to frustrate the objectives of divestiture. Nevertheless, from the Ordinances' references to the Africa's Fund's and United Nations organizations' definitions, it is clear that the City Council sought a responsible standard, and did not wish to bar investments in firms "doing business" under the most expansive sense of that term.  In other contexts, we have construed the statutory phrase "doing business" in a geographical area to mean doing a "substantial amount of [*99] business" or engaging "in significant business activity" in that area.  See, e.g., Yangming Transport v. Revon Products, supra, 311 Md. at 504-509, 536 A.2d at 637-640; S.A.S. Personnel Consult v. Pat-Pan, 286 Md. 335, 339-340, 407 A.2d 1139, 1142 (1979); [***40] G.E.M., Inc. v. Plough, Inc., 228 Md. 484, 488-489, 180 A.2d 478, 481 (1962). In our view, this is the definition which the Trustees should utilize.

   III.

   According to the Trustees and the beneficiaries, the Ordinances impair the obligations of the beneficiaries' pension contracts with the City, in violation of the Contract Clause of the United States Constitution, Art. I, § 10.  We disagree.

   A.

   In Robert T. Foley Co. v. W.S.S.C., 283 Md. 140, 151-152, 389 A.2d 350, 357 (1978), we reviewed the framework for determining if governmental action unconstitutionally impairs contractual obligations, saying:

   "Consideration of a claim that particular governmental action invalidly impairs contractual obligations involves several steps.  See United States Trust Co. v. New Jersey, 431 U.S. 1, 17-21, 97 S.Ct. 1505, 52 L.Ed.2d 92 (1977). First, it must be determined whether a contract existed.  If that hurdle is successfully cleared by the claimant, a court next must decide whether an obligation under that contract was changed.  Finally, if the second question is answered in the affirmative, [***41] the issue becomes whether the change unconstitutionally impairs the contract obligation, '[f]or it is not every modification of a contractual promise that impairs the obligation of contract under federal law . . . .'£ City of El Paso v. Simmons, 379 U.S. 497, 506-507, 85 S.Ct. 577, 582-583, 13 L.Ed.2d 446 (1965)."
 
See State v. Good Samaritan Hospital, 299 Md. 310, 318, 473 A.2d 892, 896, appeal dismissed, 469 U.S. 802, 105 S.Ct. 56, 83 L.Ed.2d 7 (1984). See also State v. Burning Tree [*100] Club, Inc., 315 Md. 254, 271, 554 A.2d 366 (1989); Chevy Chase Savings & Loan v. State, 306 Md. 384, 416, 509 A.2d 670 (1986).

   There is no doubt that, by establishing the pension systems, the City imposed contractual obligations on itself.  Under Maryland law, pension plans create contractual duties toward persons with vested rights under the plans.  See, e.g., Archer v. Archer, 303 Md. 347, 357, 493 A.2d 1074 (1985); Lookingbill v. Lookingbill, 301 Md. 283, 289, 483 A.2d 1 (1984); [***42] Deering v. Deering , 292 Md. 115, 124-128, 437 A.2d 883 (1981); City of Frederick v. Quinn, 35 Md. App. 626, 371 A.2d 724 (1977). Moreover, the Baltimore City Code expressly recognizes the existence of a contractual relationship, at least between the City and the members of the F. & P. and the E.R.S. Baltimore City Code (1976, 1983 Repl.Vol.), Art. 22, § 42. n26

n26 Section 17(e)(ii) provides, however, that, notwithstanding § 42, any increase in variable benefits "shall not become an obligation of the City of Baltimore."£ As an alternate ground for his decision, the trial judge held that, by virtue of these sections, the beneficiaries could claim no contractual right to variable benefits.  We disagree for two reasons.  First, the above disclaimer simply recognizes that future variable benefits depend not on City contributions but on market performance.  Second, according to the City Council's file memorandum on the variable benefits ordinance, the disclaimer was also designed to "protect the City from any liability if [the] Variable Benefit Fund . . . does not have sufficient earnings to provide for previously awarded benefits."

[***43]

   Since divestment does not alter the provisions in the law concerning the amount of benefits that a retiree is entitled to receive, the Ordinances do not directly change the City's pension contracts with the systems' [**734] beneficiaries. Compare Maryland State Teachers Ass'n v. Hughes, 594 F.Supp. 1353 (D.Md.1984), aff'd, No. 84-2213 (4th Cir. Dec. 5, 1985).

   The Trustees argue, however, that the Ordinances indirectly change these contracts by modifying the manner in which the pension funds are invested.

   [*101] The right to receive defined benefits was not indirectly changed. Judge Greenfeld expressly found that "nothing in the evidence suggests that the Ordinances will in any way jeopardize the amount or payment" of the defined benefits.  That finding is supported by the evidence and cannot be deemed clearly erroneous under Rule 8-131(c).

   The trial court did find that the initial and ongoing costs of divestiture may affect the pension systems' profitability and, as a result, may slightly diminish the level of future variable benefits. n27£ Thus, in this respect, the Ordinances may indirectly change the City's obligation under its contracts with the beneficiaries. [***44] The cases, however, make it clear that an insubstantial change does not unconstitutionally impair the obligations of a contract.  Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400, 411, 103 S.Ct. 697, 704, 74 L.Ed.2d 569 (1983); Allied Structural Steel Co. v. Spaunaus, 438 U.S. 234, 244-245, 98 S.Ct. 2716, 2722-2723, 57 L.Ed.2d 727 (1978); Chevy Chase Savings & Loan v. State, supra, 306 Md. at 416, 509 A.2d at 686.

n27 As pointed out previously, the Ordinances have no effect on accrued variable benefits, which are funded by guaranteed investment contracts.

   The circuit court found that the initial cost of divestiture is one-thirty-second of 1% of the systems' assets and that the ongoing annual cost is one-twentieth of 1%.  Based on these findings, which are not clearly erroneous, it follows that the circuit court was justified in concluding that the cost of the Ordinances to the [***45] retirement systems, and thus to the systems' beneficiaries in terms of future variable benefits, is so minimal that it does not approach the constitutional standard for impairment. n28

n28 It should be noted that the circuit court's findings with regard to the effects of divestment seem to be premised upon divestment of holdings in all companies on the South Africa Fund's Unified List.  At the same time, as discussed in Part II of this opinion, the circuit court held, and we agree, that the Trustees are not bound by the Unified List.  Consequently, depending upon the Trustees' decisions concerning what companies are doing business in South Africa, based on the standards set forth in Part II of this opinion, the costs of divestment could be somewhat lower than found by the circuit court.

   [*102] B.

   The Trustees further argue that the Ordinances indirectly change the pension contracts by disturbing the beneficiaries' expectations that benefits will be well secured.  According to the Trustees, the beneficiaries are [***46] entitled to demand that the systems' funds "will be invested prudently for the exclusive benefit of the workers (and their beneficiaries) and for the sole purpose of securing the payment of promised future benefits."£ (Trustees' Brief, pp. 14-15).  Thus the Trustees contend that the contracts incorporate the common-law duties of prudence and loyalty and that the Ordinances alter those duties.

   We agree that the pension contracts incorporate the Trustees' common-law duties of prudence and loyalty.  Moreover, we shall assume that if legislation substantially alters those duties, the legislation should be viewed as changing the obligations of contract.  Nonetheless, in this case, the Trustees have not proven such change. n29

n29 There is very little case law with respect to whether divestiture conflicts with a trustee's duties to beneficiaries. In Associated Students of the Univ. of Or. v. Oregon Inv. Council, No. 78-7502 (Cir.Ct. Lane Co., Or. Jan. 21, 1985), rev'd 82 Or.App. 145, 728 P.2d 30 (1986), petition denied, 303 Or. 74, 734 P.2d 354 (1987), the trial court held that the trustees of a charitable trust need not comply with the University's divestment resolution, as divestment would violate the statutory prudent investor rule.  The intermediate appellate court reversed on the ground that the plaintiffs lacked standing to challenge the trustees' actions. 82 Or.App. at 151, 728 P.2d at 33.

[***47]

   [**735] As stated above, one of the common-law fiduciary duties is the requirement that trustees act prudently in managing trust affairs.  Shipley v. Crouse, 279 Md. 613, 621, 370 A.2d 97 (1977); Zimmerman v. Coblentz, 170 Md. 468, 484, 185 A. 342, 349 (1936); Johnson v. Webster, 168 Md. 568, 576, 179 A. 831, 834 (1935); Fox v. Harris, 141 Md. 495, 506, 119 A. 256, 260 (1922); Gilbert v. Kolb, 85 Md. 627, 634-636, 37 A. 423 (1897); Gray v. Lynch, 8 Gill 403, 431 (1849); [*103] Green v. Lombard, 28 Md.App. 1, 5, 343 A.2d 905, 909, cert. denied, 276 Md. 743 (1975). The Court in Shipley v. Crouse, supra, 279 Md. at 621, 370 A.2d at 102 (quoting G. Bogert, The Law of Trust and Trustees, § 541 (2d ed. 1960), explained as follows:
 
"'A trustee is required to manifest in all his management of the trust the care, skill, prudence, and diligence of an ordinarily prudent man engaged in similar business affairs and with objectives [***48] similar to those of the trust in question.'"
 
Likewise, Baltimore City Code, Article 22, §§ 7(h) and 35(h), adopt the duty of prudence set forth in § 404(a)(1) of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1104(a)(1) (1982): n30
 
"The Board of Trustees shall discharge its duties . . . (2) With the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims."

n30 As "governmental plans," the City's systems are exempt from ERISA. 29 U.S.C. §§ 1002(32), 1003(b)(1) (1982).

   The trustees argue that the Ordinances alter the duty of prudence by radically reducing the universe of eligible investments.

   There is no doubt that the Ordinances place some limits on the scope of investment.  Using the South Africa Fund's Unified List, the Trustees argue, for example, that they are barred from investing in almost one-half [***49] of the market capitalization of the S & P 500.  In fact, the correct figure may be substantially smaller, as the Trustees are not bound by the South Africa Fund's determinations.  Nevertheless, the Ordinances do exclude a not insignificant segment of the investment universe.  Cf. Lanoff, The Social Investment of Private Plan Assets: May It Be Done Lawfully Under ERISA?, 31 Lab.L.J. 387, 391 (1980). The City, [*104] however, has shown that, under the divestiture program, economically competitive, substitute investments remain available.

   Furthermore, the Trustees' emphasis on market capitalization is somewhat misleading. n31£ While the Ordinances seem to ban investments in many larger companies with a high market capitalization, numerous opportunities remain available.  Thus, under Judge Greenfeld's findings, the Ordinances permit the Trustees to construct an almost perfectly diversified portfolio, one that accurately matches the market as a whole in all respects except the size of the companies in which the pension systems invest. Moreover, the Trustees' inability to demonstrate that divestiture will impair the portfolios' equity performance indicates that [***50] a diversified, S.A.F. portfolio can be managed consistently with the duty of prudence. In fact, on cross-examination, the Trustees' witnesses conceded that, given a shift to "passive" management, the funds could duplicate the performance of a "target index," such as the S. & P. 500.  Thus, divestiture does not imprudently increase risk or decrease income.

n31 For example, as the trial court observed, the market capitalization of IBM, a company apparently doing business in South Africa, is equal to that of the 200 smallest companies on the S. & P. 500.

   The Trustees' chief concern seems to be that, by foreclosing a certain range of investments, the Ordinances will adversely affect the money managers' active style.  Yet, assuming arguendo that this is true, there is in our opinion no contractual right to a particular management style. n32

n32 While Judge Greenfeld concluded that the Ordinances would not significantly affect the active style, some proponents of divestiture disagree. See Dobris, Arguments in Favor of Fiduciary Divestment of "South African" Securities, 65 Neb.L.Rev. 209, 240 n. 285 (1986). One of the Trustees' witnesses did testify, however, that the Ordinances have only a minimal affect on certain active managers.  These include "market-timers," who decide when to be in or out of the market, and "top-down managers," who first decide what types of stocks to buy and then fill out their portfolios accordingly.

   In any case, a shift to passive management would hardly be imprudent.  The Trustees admit that most active managers underperform the market.  Moreover, one of the Trustees' experts conceded that passive management in the long run provides more stability, lower transaction costs, and lower risk than active management.

[***51]

   [*105] [**736] The provisions regulating the divestiture program reinforce our conclusion that the Ordinances do not change the Trustees duty of prudence. The transition to an S.A.F. portfolio is to occur gradually, over a two-year period.  The Ordinances expressly empower the Trustees to suspend the divestiture program at any time for up to 90 days if they find, in essence, that divestiture has become imprudent.  See § 2(d), (e) of Ordinance No. 765.  The parties do not dispute the circuit court's interpretive rulings that the two-year period is extended for the length of any valid suspension and that the Ordinances do not limit the number of times the Trustees can suspend the program.  In addition, none of the parties has challenged the trial court's further rulings that, during a suspension, the Trustees may make new investments in companies doing business in South Africa and that the Trustees may order a suspension at any time before the time limit has run, even if total divestiture has already occurred.  We agree with these interpretative rulings by the circuit court.  In our opinion, there exist numerous safeguards which guarantee that divestiture cannot occur unless it would [***52] be consistent with the Trustees' duty of prudence.

   C.

   In a related argument, the Trustees contend that the Ordinances alter the duty of prudence by mandating the consideration of social factors unrelated to investment performance.  Under the circumstances of this case, we disagree.

   No less an authority than Professor Austin Wakeman Scott rejected the proposition that "trustees are rigidly [*106] bound to attempt to secure the maximum return, whether as to income or principal, consistent with safety."£ III Scott on Trusts, § 227.17 (W. Fratcher 4th ed. 1988). n33£ Instead, Professor Scott concluded (ibid.):

   "Trustees in deciding whether to invest in, or to retain, the securities of a corporation may properly consider the social performance of the corporation. They may decline to invest in, or to retain, the securities of corporations whose activities or some of them are contrary to fundamental and generally accepted ethical principles.  They may consider such matters as pollution, race discrimination, fair employment, and consumer responsibility." n34
 
For this position, Scott relied in part on an analogy to the corporate fiduciary's limited [**737] right to make charitable [***53] contributions: just as the directors may conclude that charitable contributions are in the corporation's long-term interests, so too a trustee "may well believe that a corporation that has a [*107] proper sense of social obligation is more likely to be successful in the long run than those that are bent on obtaining the maximum amount of profits."£ Ibid.  "But," he continued, "even if this were not so, the investor, though a trustee of funds for others, is entitled to consider the welfare of the community, and refrain from allowing the use of funds in a manner detrimental to society."£ Ibid.

 n33 This section, which initially appeared in the supplements to the third edition of the treatise, was authored by Professor Scott himself.

n34 Similarly, in construing testamentary trusts, some have urged that social factors should override even the testator's express directives.  For example, in the litigation concerning the desegregation of Girard College, a school established in Philadelphia in 1833 for "poor white male orphans," it was asserted that the testator's philanthropic designs would best be served by admitting male children of all races.  Commonwealth of Pennsylvania v. Brown, 392 F.2d 120, 125 (3d Cir.), cert. denied, 391 U.S. 921, 88 S.Ct. 1811, 20 L.Ed.2d 657 (1968); Girard College Trusteeship, 391 Pa. 434, 480-481, 138 A.2d 844, 866 (Musmanno, J., dissenting), cert. denied, 357 U.S. 570, 78 S.Ct. 1383, 2 L.Ed.2d 1546 (1958). See also Clark, Charitable Trusts, The Fourteenth Amendment and The Will of Stephen Girard, 66 Yale L.J. 979, 990 (1957) (suggesting that the moral duty of trustees, who were agents of the city, to Philadelphia's two million citizens "was scarcely less than that to one dead testator").  Additionally, in Matter of London, 104 Misc. 372, 377-378, 171 N.Y.S. 981, 983-984 (1918), aff'd, 187 A.D. 952, 175 N.Y.S. 910 (1919), the Surrogate Court for New York County upheld an investment in war bonds at 3 1/2% despite the testator's express command that the trustee should invest only in railroad bonds paying at least 4%.  Noting that the nation was at war and needed the "undivided aid, support and loyalty of every citizen," the court hypothesized that the testator would have sanctioned this investment had he been alive.  Ibid.

[***54]

   These views are consistent with the position that a trustee's duty is not necessarily to maximize the return on investments but rather to secure a "just" or "reasonable" return while avoiding undue risk.  King v. Talbot, 40 N.Y. 76, 86 (1869); Withers v. Teachers' Retirement System, 447 F.Supp. 1248, 1254 (S.D.N.Y.1978), aff'd, 595 F.2d 1210 (2d Cir.1979); III Scott on Trusts, supra, § 227.3; Restatement (Second) of Trusts § 227 comment (e) (1957); Dobris, Arguments in Favor of Fiduciary Divestment of "South African" Securities, 65 Neb.L.Rev. 209, 232 (1986); Ravikoff & Curzan, Social Responsibility in Investment Policy and The Prudent Man Rule, 68 Cal.L.Rev. 518, 519 (1980). Cf. Troyer, Slocombe & Boisture, Divestment of South Africa Investments: The Legal Implications for Foundations, Other Charitable Institutions, and Pension Funds, 74 Geo.L.J. 127, 156-157 (1985). But see Langbein & Posner, Social Investing and the Law of Trusts, 79 Mich.L. Rev. 72, 99-104 (1980). As one commentator stated, a "trustee [***55] is under no duty to open a brothel in Nevada, where prostitution is legal, in order to maximize return to beneficiaries."£ Dobris, supra, 65 Neb.L.Rev. at 232. Thus, if, as in this case, social investment yields economically competitive returns at a comparable level of risk, the investment should not be deemed imprudent.

   The Mayor and City Council of Baltimore were motivated to enact the Ordinances, in part, because the Trustees' prior investment practices offended a growing [*108] number of the systems' beneficiaries and residents of the City.  Moreover, given the vast power that pension trust funds exert in American society, n35 it would be unwise to bar trustees from considering the social consequences of investment decisions in any case in which it would cost even a penny more to do so.  Consequently we conclude that if, as in this case, the cost of investing in accordance with social considerations is de minimis, the duty of prudence is not violated. n36£ Accordingly, we hold that the Ordinances do not alter that duty. n37

n35 "In 1980, public and private pension funds totaled more than $550 billion, owned more than 25% of all publicly traded stock, and controlled more than 40% of all debt capital in the United States."£ Troyer, Slocombe & Boisture, supra, 74 Geo.L.J. at 154 n. 98 (citing McCarroll, Socially Responsible Investment of Public Pension Funds: The South Africa Issue and State Law, 10 Rev.L. & Soc. Change 407 (1980-1981)).  Similarly, in 1980 the United States Department of Labor projected that by 1995 private pension trust assets alone would total almost $3 trillion.  Lanoff, The Social Investment of Private Plan Assets: May It Be Done Lawfully Under ERISA?, 31 Lab.L.J. 387, 387 (1980).

[***56] 

n36 We recognize that, in absolute terms, the costs of divestiture may be large.  As Judge Greenfeld pointed out, however, the costs are de minimis when viewed in relation to the systems' total assets.

n37 As noted previously, although the systems are exempt from ERISA, the Baltimore City Code incorporates ERISA's language concerning the duty of prudence. Several commentators have written that social investment is likely to violate ERISA.  See, e.g., Hutchinson & Cole, Legal Standards Governing Investment of Pension Assets for Social and Political Goals, 128 U.Pa.L.Rev. 1340 (1980); Lanoff, supra, 31 Lab. L.J. at 390. See Langbein & Posner, Social Investing and the Law of Trusts, 79 Mich.L.Rev. 72, 98-99 (1980). But see Ravikoff & Curzan, Social Responsibility in Investment Policy and The Prudent Man Rule, 68 Cal.L.Rev. 518, 528-536 (1980). Nonetheless, one of the Trustee's own witnesses, a money manager, conceded that his company did not believe that it violated ERISA by building and managing S.A.F. portfolios subject to the federal Act.  He justified this belief by stating that substituting S.A.F. securities for other securities did not involve "taking unusual risks."£ Moreover, at the time of the ordinances' enactment, the City Council explicitly made the ERISA provisions subject to limitations and conditions prescribed elsewhere in Article 22.  See Art. 22, §§ 7(h)(4), 35(h)(4).  The Ordinances are such a prescribed limitation or condition.

[***57]

   [*109] [**738] D.

   Finally, the Trustees contend that the Ordinances alter their duty of loyalty, which is implicit in the pension contracts.  We disagree that the Ordinances alter that duty.

    Like the duty of prudence, the general duty of loyalty is well-established in Maryland law.  See, e.g., Goldman v. Rubin, 292 Md. 693, 441 A.2d 713 (1982); Gianakos v. Magiros, 238 Md. 178, 208 A.2d 718 (1965); Hughes v. McDaniel, 202 Md. 626, 98 A.2d 1 (1953); Mangels v. Tippett, 167 Md. 290, 173 A. 191 (1934); Diffenderffer v. Minder, 3 G. & J. 311 (1831). Moreover, as with the duty of prudence, the Baltimore City Code incorporates ERISA's formulation of the trustee's duty of loyalty (Art. 22, §§ 7(h), 35(h)):
"The Board of Trustees shall discharge its duties . . . solely in the interest of the members and beneficiaries and:
(1) For the exclusive purpose of:

   (i) providing benefits to members and beneficiaries. . . ."
 
The Trustees urge that, by requiring them to consider the interests of persons other than the beneficiaries and by requiring [***58] them to manage the systems for purposes other than providing benefits, the ordinances change this duty.

   It is clear that the trustee's duty of loyalty extends beyond a prohibition against self-dealing and conflict of interest, two wrongs that are not present in this case.  Even if the trustee has no personal stake in a transaction, the duty of loyalty bars him from acting in the interest of third parties at the expense of the beneficiaries. See Restatement (Second) of Trusts, § 170 comment q (1957); Conway v. Emeny, 139 Conn. 612, 621-622, 96 A.2d 221, 225 (1953); In re Estate of Sedgwick, 74 Ohio App. 444, 461, 59 N.E.2d 616, 624 (1944).

   Nevertheless, we do not believe that a trustee necessarily violates the duty of loyalty by considering the social consequences of investment decisions.  If, as in this case, [*110] the costs of considering such consequences are de minimis, the trustee ordinarily will not have transgressed that duty.

   Although Professor Scott termed the trustee's duty of loyalty "[t]he most fundamental duty owed by the trustee to the beneficiaries," IIA Scott on Trusts, supra, [***59] § 170, he clearly believed that that obligation could be reconciled with considering the ethical implications of the trust's investments. See III Scott on Trusts, supra, § 227.17.  Our conclusion is consistent with that belief.  Moreover, our opinion in this case is broadly consistent with the requirement, embodied in the Baltimore City Code, that the trustees act "solely in the interest of the beneficiaries," and "for the exclusive purpose . . . of providing benefits."£ As Professor Scott recognized, under some circumstances trustees may well believe that, by investing in businesses with "a proper sense of social obligation," they will in the long run best serve the beneficiaries' interests and most effectively secure the provision of future benefits.  Ibid.

   Consequently, the Ordinances do not change the Trustees' duties of prudence and loyalty, which are implicit in the pension contracts.

   For the foregoing reasons, we hold that the Ordinances do not unconstitutionally impair the obligation of contract.

   IV.

   The intervenors argue that the Ordinances "violated their due process rights under the 'taking' clause of the Fifth and Fourteenth Amendments" [***60] (Intervenors' Brief, p. 40).  The Intervenors reason that the initial and ongoing costs of divestiture will reduce the future earnings of the pension funds, consequently reducing the amount of variable benefits payable to the beneficiaries. Because of this reduction in the amount of variable benefits, according to the Intervenors, there has been "a confiscation by [the city] government" (Ibid.) and "the beneficiaries have been deprived of [*111] their right to constitutional due process [**739] as their property has been taken without just compensation" (id. at p. 44). n38

n38 The Intervenors' argument, as the quotation from their brief indicates, invokes both the Due Process Clause of the Fifth Amendment and the Just Compensation Clause of the Fifth Amendment.  The substance of the argument, however, seems to be based on the Just Compensation Clause.  Clearly no procedural due process argument is made.  In addition, the intervenors do not appear to advance a substantive due process argument.  To the extent that the intervenors might be making a substantive due process argument, it is without merit.  See generally, e.g., Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 124-125, 98 S.Ct. 2207, 2213, 57 L.Ed.2d 91 (1978), affirming Governor v. Exxon Corp., 279 Md. 410, 423-429, 370 A.2d 1102, 1110-1113 (1977). Ogrinz v. James, 309 Md. 381, 394-395, 524 A.2d 77 (1987); State v. Good Samaritan Hospital, 299 Md. 310, 325-326, 473 A.2d 892, appeal dismissed, 469 U.S. 802, 105 S.Ct. 56, 83 L.Ed.2d 7 (1984).

[***61]

   As previously pointed out, the Intervenors have a contractual right to receive both defined benefits and variable benefits.  Moreover, the contractual right to receive these benefits constitutes property under Maryland law. Deering v. Deering, supra, 292 Md. at 122-128, 437 A.2d at 887-890. See Archer v. Archer, supra, 303 Md. at 356-357, 493 A.2d at 1079; Lookingbill v. Lookingbill, supra, 301 Md. at 286-290, 483 A.2d at 2-4. n39

n39 The Constitution does not create property rights.  Rather, such rights "are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law . . . ."£ Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). See also Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 1491, 84 L.Ed.2d 494 (1985).

[***62]

   The Intervenors' contractual right to receive benefits does not, however, give them a right to direct or control the investment of funds in Baltimore City's pension systems.  Absent a provision in the law to the contrary, the beneficiaries of a public retirement system have no right to direct the investment of the systems' assets.  Withers v. Teachers' Retirement System, supra, 447 F.Supp. at 1260 (the beneficiaries of a public retirement fund "have no entitlement to, or right to direct the retention of, the [*112] particular assets that are held for investment purposes in the pension fund"); Crown v. Patrolmen's Variable Supp. Fund Trustees, 659 F.Supp. 318, 320 (S.D.N.Y.), aff'd, 819 F.2d 47 (2d Cir.1987). See Tron v. Condello, 427 F.Supp. 1175, 1189-1190 (S.D.N.Y.1976) (beneficiary "has a vested right in receiving his pension benefits, but not in regulating the investment policies set by the Legislature and the Retirement Board").

   If the earnings of the pension funds were sufficient to warrant the payment of variable benefits under the pension formula, and such payments were not made, the beneficiaries [***63] could reasonably argue they had been unlawfully deprived of a property right.  There is no sound basis for the claim made in the present case, however, that the beneficiaries' property interest in future variable benefits is unconstitutionally "taken" whenever the City Council or the Trustees act in a way which might reduce the earnings of the pension funds.

   As the Supreme Court stated in Connolly v. Pension Ben. Guar. Corp., 475 U.S. 211, 224-225, 106 S.Ct. 1018, 1026, 89 L.Ed.2d 166 (1986), quoting Penn Central Transportation Co. v. New York City, 438 U.S. 104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631 (1978), its decisions under the Just Compensation Clause
 
"have eschewed the development of any set formula for identifying a 'taking' forbidden by the Fifth Amendment, and have relied instead on ad hoc, factual inquiries into the circumstances of each particular case. . . .  To aid in this determination, however, [the Court has] identified three factors which have 'particular significance': (1) 'the economic impact of the regulation on the claimant'; (2) 'the extent to which the regulation [***64] has interfered with distinct investment-backed expectations'; and (3) 'the character of the governmental action.'"
 
See Chevy Chase Savings & Loan v. State, supra, 306 Md. at 411, 509 A.2d at 684. 

   [*113] The economic impact of the Ordinances might be to deprive the beneficiaries of some variable benefits they would otherwise [**740] receive if the Ordinances were not in effect.  The degree of this impact is, however, substantially reduced by "provisions in the Act that moderate and mitigate the economic impact."£ Connolly v. Pension Ben. Guar. Corp., supra, 475 U.S. at 225, 106 S.Ct. at 1026. The provision in the Ordinances allowing for the postponement of divestment, for example, and other provisions previously discussed, mitigate any adverse impact on the beneficiaries' variable benefits.

   The Ordinances do not interfere with "distinct investment-backed expectations."£ Connolly, supra, 475 U.S. at 225, 106 S.Ct. at 1026. The Supreme Court has stated: "A reasonable investment-backed expectation must be more than a 'unilateral expectation or an abstract need.'"£ Ruckelshaus v. Monsanto, 467 U.S. 986, 1005, 104 S.Ct. 2862, 2874, 81 L.Ed.2d 815 (1984), [***65] quoting Webb's Fabulous Pharmacies v. Beckwith, 449 U.S. 155, 161, 101 S.Ct. 446, 451, 66 L.Ed.2d 358 (1980). Variable benefits are, as their name suggests, speculative and uncertain.  Whatever diminution of variable benefits the Ordinances might cause cannot be said to interfere with a "distinct . . . expectation."£ As the Court said in Andrus v. Allard, 444 U.S. 51, 66, 100 S.Ct. 318, 327, 62 L.Ed.2d 210 (1979),
 "loss of future profits -- unaccompanied by any physical property restriction -- provides a slender reed on which to rest a takings claim.  Prediction of profitability is essentially a matter of reasoned speculation that courts are not especially competent to perform.  Further, perhaps because of its very uncertainty, the interest in anticipated gains has traditionally been viewed as less compelling than other property-related interests."

   Finally, the nature of the governmental action in this case does not involve the government appropriating the beneficiaries' money for its own use or for the use of others.  Government regulation under "a public program that adjusts the benefits [***66] and burdens of economic life to promote [*114] the common good . . . does not constitute a taking requiring Government compensation."£ Connolly v. Pension Ben. Guar. Corp., supra, 475 U.S. at 225, 106 S.Ct. at 1026. The Ordinances here do just that.  Any reduction in variable benefits is an incidental cost of the City government's efforts to promote the common good by regulating its own investment policy.

   We conclude that the Ordinances do not effect a "taking" of the beneficiaries' property in violation of the Fifth Amendment.

   V.

   We next address the contention that the Comprehensive Anti-Apartheid Act of 1986, Pub.L. No. 99-440, 100 Stat. 1086 (1986), codified in relevant part at 22 U.S.C. §§ 2151, 2346(d), 5001-5116 (Supp. IV 1986), preempts the Ordinances. n40£ Among other things, the federal Act prohibits new American investment in South Africa; prohibits the importation of certain South African products, including krugerrands, uranium, and coal; forbids the export of computer technology to the South African security forces; limits American loans to the South African government; and restricts nuclear trade with South Africa.  See [***67]22 U.S.C. §§ 5051-5060.  In addition, the federal statute requires American businesses with more than 25 employees in South Africa to comply with the Sullivan Principles, a code of fair employment practices for companies operating in South Africa.  22 U.S.C. §§ 5034-5035.  Section 5061 provides for the termination, modification, or suspension of the above sanctions if the South African government makes progress towards abolishing apartheid.  Conversely, § 5091 authorizes [*115] more stringent sanctions if such progress fails to occur.

n40 Amendments to the Comprehensive Anti-Apartheid Act of 1986 have been introduced in both the House (H.R. 21, 101st Congress, 1st Sess. (1989)) and Senate (S. 507, 101st Congress, 1st Sess. (1989)).  These amendments, if enacted, would prohibit any United States entity from purchasing or holding investments in South Africa under most circumstances.

   Federal law may preempt state or local law in different ways. n41£ Congress [**741]may preempt state law by expressly stating its intention [***68] to do so.  California v. ARC America Corp.,    U.S.   ,    , 109 S.Ct. 1661, 1665, 104 L.Ed.2d 86 (1989); Hillsborough County, Fla. v. Auto. Med. Labs., 471 U.S. 707, 713, 105 S.Ct. 2371, 2375, 85 L.Ed.2d 714 (1985). The Anti-Apartheid Act of 1986 does not expressly preempt state and local divestiture laws.  Absent express preemption, a court may infer a congressional intent to preempt from a scheme of federal regulation sufficiently comprehensive to occupy a given field or to make clear that Congress left no room for supplementary state legislation. California v. ARC America Corp., supra, 109 S.Ct. at 1665; Pacific Gas & Electric v. Energy Resources Comm., 461 U.S. 190, 204, 103 S.Ct. 1713, 1722, 75 L.Ed.2d 752 (1983); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). Moreover, even if Congress has not completely preempted state regulation in a particular area, state law is preempted to the extent that it actually conflicts with federal law.  [***69] California v. ARC America Corp., supra, 109 S.Ct. at 1665. "Such a conflict arises when 'compliance with both federal and state regulations is a physical impossibility' . . . or when state law 'stands as an obstacle to the accomplishment and execution of the full purpose and objectives of Congress.'"£ Hillsborough County, Fla. v. Auto. Med. Labs., supra, 471 U.S. at 713, 105 S.Ct. at 2375.

n41 "[F]or purposes of the Supremacy Clause, the constitutionality of local ordinances is analyzed in the same way as that of state laws."£ Hillsborough County, Fla. v. Auto. Med. Labs., 471 U.S. 707, 713, 105 S.Ct. 2371, 2375, 85 L.Ed.2d 714 (1985).

   Nevertheless, so as not to place undue restrictions upon state sovereignty, preemption is not lightly presumed.  California Federal Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 281, 107 S.Ct. 683, 689, 93 L.Ed.2d 613 (1987); [***70]Maryland [*116] v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 2129, 68 L.Ed.2d 576 (1981); Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 132, 98 S.Ct. 2207, 2217, 57 L.Ed.2d 91 (1978), affirming 279 Md. 410, 370 A.2d 1102 (1977). Furthermore, in areas traditionally regulated by state and local governments, there is a strong presumption against finding federal preemption. California v. ARC America Corp., supra, 109 S.Ct. at 1665; Hillsborough County, Fla. v. Auto. Med. Labs., supra, 471 U.S. at 716, 105 S.Ct. at 2376; Pacific Gas & Electric v. Energy Resources Comm., supra, 461 U.S. at 206, 103 S.Ct. at 1723; San Diego Building Trades Council v. Garmon, 359 U.S. 236, 244, 79 S.Ct. 773, 779, 3 L.Ed.2d 775 (1959). In these circumstances there must be compelling evidence of congressional intent to preempt. San Diego Building Trades Council v. Garmon, supra, 359 U.S. at 244, 79 S.Ct. at 779. [***71]

   Baltimore City's regulation of investments by its employees' pension funds is clearly a matter of traditional local regulation. Therefore, the Ordinances enjoy a strong presumption that they are not preempted. The evidence with respect to congressional intent is wholly inadequate to overcome this presumption.

   The relevant legislative history begins n42 in 1985, when the Senate was considering legislation (S.B. 995 and H.R. 1460, known as the Anti-Apartheid Act of 1985) which would have imposed economic sanctions on South Africa. n43£ During the debates on the 1985 legislation, Senators Roth and McConnell had circulated an amendment that would have added express preemptive language; however, "in the face of certain defeat," the proponents of preemption elected [*117]not to submit the amendment.  See 132 Cong.Rec. S 12533 (daily ed., Sept. 15, 1986) (Remarks of Sen. Kennedy); 131 Cong.Rec. S 18331 (daily ed., July 11, 1985) [**742] (Remarks of Sen. Kennedy). n44

n42 In fact, the examination could begin as early as 1984, when Congress declined to exercise its plenary powers over the District of Columbia to disapprove of that City's divestiture ordinance.

[***72] 

n43 On September 9, 1985, the President promulgated an executive order incorporating most of the economic sanctions contained in the then pending legislation.  Exec. Order No. 12532, 3 C.F.R. 387 (1984-1987).  No further action was taken on the bill.

n44 In withdrawing the amendment, Senator Roth took the position that the unamended bill would preempt state law. 131 Cong.Rec. S 18835 (daily ed., July 11, 1985).  See also id.£ (Remarks of Sen. Lugar).  Notwithstanding these assertions, however, many Senators had expressly opposed the Roth-McConnell amendment and taken the position that the bill should not preempt state law. See, e.g., id. S 18331 (Remarks of Sen. Kennedy); id. S 18330 (Remarks of Sen. Pell); id. S 18224 (Remarks of Sen. Cranston); id. S 18787 (Remarks of Sen. Hart); id. S 18784 (Remarks of Sen. Proxmire).

   In 1986 the preemption debate in the Senate centered around the so-called "D'Amato Amendment," which concerned state and local legislation barring the award of state and local government contracts to companies doing business in South Africa.  As originally [***73] drafted, the D'Amato amendment would have exempted such legislation from the requirement that contracts using federal funds must be awarded to the lowest bidder.  132 Cong.Rec. S 9305 (Remarks of Sen. D'Amato); id. S 9306 (Remarks of Sen. Moynihan). n45£ On the final day of debate, Senator Lugar announced his opposition to the amendment, claiming (132 Cong.Rec. S 11817 (daily ed., Aug. 15, 1986) that the Anti-Apartheid Act preempted such local legislation and that the amendment "muddie[d] the water with regard to the preemption issue." n46£ With little further discussion, the Senate [*118] rejected the amendment.  Yet immediately thereafter, Senator D'Amato introduced a compromise measure, which was adopted by unanimous consent, id. at S 11818, and became § 5116 of the Act.  That section provides:
 
"Notwithstanding section 210 of Public Law 99-349 or any other provision of law --

    (1) no reduction in the amount of funds for which a State or local government is eligible or entitled under any Federal law may be made, and

   (2) no other penalty may be imposed by the Federal Government,
 
by reason of the application of any State or local law concerning apartheid to any [***74] contract entered into by a State or local government for 90 days after [October 2, 1986]."

n45 Anti-apartheid procurement legislation purported to prevent the award of a contract to the lowest bidder if that party did business in South Africa.  As a result, the United States Department of Transportation had withheld millions of dollars in funds from jurisdictions that enforced the legislation.  The original D'Amato Amendment would have permitted these jurisdictions to enforce their anti-apartheid laws without losing federal funds, provided the jurisdictions agreed to pay for any resulting increase in cost.  See 132 Cong.Rec. S 9305 (daily ed., July 17, 1986) (Remarks of Sen. D'Amato).

n46 Senator Kennedy's later remarks suggest that no Senator had previously raised the preemption issue during the 1986 debates.  See 132 Cong.Rec. S 12533 (daily ed., Sept. 15, 1986).  He also found it "curious" that Senator Lugar did not raise this issue until a unanimous consent agreement governing debate effectively prevented most further amendments.  See id.

[***75]

   It is apparent that, by its own terms, § 5116's preemptive effect, if any, is limited to state or local procurement legislation which, as applied, might cause a federally funded contract not to be awarded to the lowest bidder.  As Professor Tribe observed in a memorandum to Congress, "[t]his leaves the negative implication that investment decisions are not preempted, nor are disbursements not using federal funds."£ Memorandum on the Nonpreemptive Effect of the Comprehensive Anti-Apartheid Act of 1986 Upon State and Local Measure, 132 Cong.Rec. S 12534, 12535 (daily ed., Sept. 15, 1986) ("Tribe Memorandum"). In fact, it would be unnecessary to penalize states or localities for applying their own laws if the Anti-Apartheid Act had already invalidated those laws. Consequently, if Congress had intended to preempt state or local anti-apartheid legislation, § 5116 would be superfluous.  Thus, despite Senator Lugar's comments, it is hardly clear that the Senate intended [*119] to preempt state or local divestment legislation. n47

n47 "If a few legislators could insert calculated snippets of legislative history and thereby instruct the courts to regulate the finances of states and cities, they could circumvent the need to articulate that scheme of regulation through the usual legislative process."£ Tribe Memorandum, supra, 132 Cong.Rec. at S 12535.  Moreover, Senator Lugar's comments must be balanced against those of Senator Kennedy, the Anti-Apartheid Act's co-author, who forcefully asserted that the statute was to have no preemptive effect.  132 Cong.Rec. § 12533 (daily ed., Sept. 15, 1986).

[***76]

   [**743] Moreover, the proceedings in the House of Representatives provide strong evidence that Congress had no intent to preempt. House Resolution 549, which was passed by an overwhelming margin at the same time as the Anti-Apartheid Act, declared that the House intended that the Act not preempt state or local law.  The Resolution provided in part:
 
"'Resolved, That in passing the bill, H.R. 4969, as amended by the Senate, it is not the intent of the House of Representatives that the bill limit, preempt, or affect, in any fashion, the authority of any State or local government or the District of Columbia or of any commonwealth, territory, or possession of the United States or political subdivision thereof to restrict or otherwise regulate any financial or commercial activity respecting South Africa.'" n48
 
In addition, while speaking in support of the Resolution, numerous Representatives expressed their understanding that the federal statute had no preemptive effect.  132 Cong.Rec. H 6757-6767 (daily ed., Sept. 12, 1986) (Remarks [*120] of Reps. Gray, Leland, Solarz, Weiss, Levine, Rangel, Biaggi, Dixon, and Wheat).

n48 Anticipating a presidential veto, the House leadership had put the Anti-Apartheid Act on an expedited schedule.  The bill did not go to conference committee, and Members were not permitted to offer amendments.  Thus, the House simply voted on the text of the bill as passed by the Senate.  Under these unusual circumstances, the Act's House sponsors drafted the Resolution in order to express their views on the preemption issue.  We recognize that the Resolution merely expresses the sense of the House and thus lacks the force and effect of law.  We rely on this Resolution, however, insofar as it illustrates the House's understanding that the Act did not preempt state and local divestiture legislation.

[***77]

   In light of the foregoing legislative history, we cannot conclude that it was the intent of the Congress to preempt state or local legislation such as the Ordinances.

   Finally, we consider whether the Ordinances may be preempted because they actually conflict with federal law.  As mentioned previously, a conflict occurs when compliance with both the federal law and state law is impossible or where the state law impedes accomplishment of the purposes of the federal law.  Courts will not hold that a state law is preempted by conflict where the conflict with federal law is merely potential or speculative.  See, e.g., Exxon Corp. v. Governor of Md., supra, 437 U.S. at 130-131, 98 S.Ct. at 2216; Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 446, 80 S.Ct. 813, 817-818, 4 L.Ed.2d 852 (1960).

   In the present case, the Trustees argue that the Ordinances are preempted because they impose inflexible "sanctions" that conflict with the Act's "carrot and stick" approach to South Africa.  We disagree.  Unlike the federal statute, the Ordinances are not aimed directly at the conduct of the South African government [***78] but rather at the conduct of businesses in which the City has investments.  The Ordinances do not attempt to impose sanctions on South Africa.  Moreover, nothing in the Anti-Apartheid Act suggests that Congress believed that divestment efforts would interfere with its system of sanctions and incentives.

   The Trustees also point out that the federal statute does not require American companies to relinquish their South African holdings; rather, the Act provides only that companies doing business in South Africa must adhere to the Sullivan Principles.  See §§ 5034-5035.  Therefore, the Trustees argue, the Anti-Apartheid Act conflicts with the Ordinances which require the City to divest even from companies complying with the Sullivan Principles.  We find no conflict in this regard.  The Anti-Apartheid Act does not require that American companies both remain in South [*121] Africa and adhere to the Sullivan Principles; it merely prescribes a code of fair employment practices for companies that choose to remain in that country.  Consequently, the Anti-Apartheid Act does not contemplate that change can occur in South Africa only if [**744] American businesses are affirmatively encouraged to [***79]remain there.  In fact, some provisions of the Act, such as the prohibition on new investment, may actually discourage businesses from remaining. n49£ Therefore, even assuming that the Ordinances may also discourage businesses from remaining in South Africa, they cannot be said to frustrate the narrow congressional objectives underlying the federal Act.  Cf. Nash v. Florida Industrial Comm'n, 389 U.S. 235, 88 S.Ct. 362, 19 L.Ed.2d 438 (1967).

n49 Similarly, § 10231(a) of the Omnibus Budget Reconciliation Act of 1987, Pub.L. No. 100-203 (1987), amended I.R.C. § 901 (1982) to deny a credit for taxes paid to the South African government.  This provision took effect on January 1, 1988, and will remain in force until the Secretary of State certifies that South Africa has met certain requirements set forth in the Anti-Apartheid Act.  See also 12 U.S.C. § 635(b)(9), which prohibits the Export-Import Bank of the United States from extending credit "in support of any export which would contribute to enabling the Government of South Africa to maintain or enforce apartheid.

[***80]

   VI.

   The Trustees and the Intervenors maintain that the Ordinances impermissibly intrude upon the federal government's general authority to determine and carry out the foreign policy of the United States.

   The federal government possesses paramount authority to conduct the nation's foreign affairs.  See, e.g., United States v. Pink, 315 U.S. 203, 233, 62 S.Ct. 552, 567, 86 L.Ed. 796 (1942); Hines v. Davidowitz, 312 U.S. 52, 63, 61 S.Ct. 399, 402, 85 L.Ed. 581 (1941). As a consequence, state laws relating to foreign affairs may be unconstitutional, even if they are not preempted by a federal treaty or statute, if the "State's policy may disturb foreign relations."£ Zschernig v. Miller, 389 U.S. 429, 441, 88 S.Ct. 664, [*122] 671, 19 L.Ed.2d 683 (1968). n50£ Yet, many state laws are entirely valid even though they "involv[e] matters of significant concern to foreign relations," Restatement (Second) Foreign Relations Law of the United States, § 2 comment d (1965).  See, e.g., Clark v. Allen, 331 U.S. 503, 516-517, 67 S.Ct. 1431, 1438-1439, 91 L.Ed. 1633 (1947); [***81] Springfield Rare Coin Galleries, Inc. v. Johnson, 115 Ill.2d 221, 233, 104 Ill.Dec. 743, 749, 503 N.E.2d 300, 306 (1986); K.S.B. Tech. Sales Corp. v. North Jersey Dist. Water Supply Comm'n, 75 N.J. 272, 293, 381 A.2d 774, 784 (1977), appeal dismissed, 435 U.S. 982, 98 S.Ct. 1635, 56 L.Ed.2d 76 (1978). See also De Canas v. Bica, 424 U.S. 351, 355, 96 S.Ct. 933, 936, 47 L.Ed.2d 43 (1976); Zschernig v. Miller, supra, 389 U.S. at 461, 88 S.Ct. at 681 (Harlan, J., concurring); L. Tribe, American Constitutional Law, § 4-6, at 230 (2d ed. 1988). n51

n50 The question of whether state legislation intrudes upon the dormant foreign relations power is closely related to the question of whether such laws violate the negative implications of Congress's power to regulate foreign commerce. See Container Corp. v. Franchise Tax Board, 463 U.S. 159, 194, 103 S.Ct. 2933, 2955, 77 L.Ed.2d 545 (1983) (state tax may place impermissible burden on foreign commerce if it "implicate[s] foreign policy issues which must be left to the Federal Government").  As one author has observed (Note, State and Local Anti-South Africa Action as an Intrusion upon The Federal Power in Foreign Affairs, 72 Va.L.Rev. 813, 832 (1986)): "Conceptually, and in terms of the evils they address, these two doctrines are distinguishable only in that the commerce clause attack logically seems no more than a slice of the foreign-relations pie.  The basic idea behind both, in the context of foreign commerce, is that no subdivision of the Union should be able to act independently so as to affect adversely the whole."

[***82] 

n51 The Trustees rely on Bethlehem Steel Corp. v. Board Commissioners, 276 Cal.App.2d 221, 80 Cal.Rptr. 800 (1969), in which an intermediate appellate court held California's "Buy American Act" unconstitutional.  As the Supreme Court of New Jersey pointed out, however, the Bethlehem Steel case appears to take the incorrect position that "any state statute which in any way touches upon foreign affairs is proscribed," K.S.B. Tech. Sales Corp. v. North Jersey Dist. Water Supply Comm'n, supra, 75 N.J. at 293, 381 A.2d at 784.

   In determining the boundary between permissible and impermissible state legislation, two decisions of the Supreme [*123] Court are particularly significant.  The are Clark v. Allen, supra, 331 U.S. 503, 67 S.Ct. 1431, and Zschernig v. Miller, supra, 389 U.S. 429, 88 S.Ct. 664.

   In Clark v. Allen, the Supreme Court considered a California statute under which [**745] a nonresident alien could inherit personal property only if, [***83]under the laws of the alien's nation, American citizens had a "reciprocal right" to inherit personal property on the same terms and conditions as the alien's fellow citizens.  German legatees, attempting to sustain a testamentary gift from a California resident, argued that the statute was unconstitutional on the ground that California had sought to "promote the right of American citizens to inherit abroad by offering to aliens reciprocal rights of inheritance in California," 331 U.S. at 516-517, 67 S.Ct. at 1439. The legatees argued that this "offer of reciprocal arrangements" was "a matter for settlement by the Federal Government on a nation-wide basis," 331 U.S. at 517, 67 S.Ct. at 1439. The Supreme Court rejected that argument as "far fetched."£ Ibid.£ Writing for the Court, Justice Douglas observed that rights of succession to property are governed by local law and that no federal treaty preempted the California statute under the circumstances of that case.  The Court continued (ibid.): "Nor has California entered the forbidden domain of negotiating with a foreign country . . . or making a [***84] compact with it contrary to the prohibition of Article I, Section 10 of the Constitution."£ Thus, the Court upheld the statute, stating (ibid.): "What California has done will have some incidental or indirect effect in foreign countries.  But that is true of many state laws which none would claim cross the forbidden line."

   Twenty-one years later, however, the Supreme Court struck down a similar Oregon law on the ground that the statute's "history and operation" established that it was "an intrusion by the State into the field of foreign affairs," Zschernig v. Miller, supra, 389 U.S. at 432, 88 S.Ct. at [*124] 666. n52£ Again, writing for the Court, Justice Douglas distinguished his opinion in Clark v. Allen, supra, reasoning that the prior decision was "concerned with the words of a statute on its face, not the manner of its application," 389 U.S. at 433, 88 S.Ct. at 667. The Court continued (389 U.S. at 433-434, 88 S.Ct. at 667):

   "State courts, of course, must frequently read, construe, and apply laws of foreign [***85] nations.  It has never been seriously suggested that state courts are precluded from performing that function, albeit there is a remote possibility that any holding may disturb a foreign nation -- whether the matter involves commercial cases, tort cases, or some other type of controversy.  At the time Clark v. Allen was decided, the case seemed to involve no more than a routine reading of foreign laws.  It now appears that in this reciprocity area under inheritance statutes, the probate courts of various States have launched inquiries into the type of governments that obtain in particular foreign nations -- whether aliens under their law have enforceable rights, whether the so-called 'rights' are merely dispensations turning upon the whim or caprice of government officials, whether the representation of consuls, ambassadors, and other representatives of foreign nations is credible or made in good faith, whether there is in the actual administration in the particular foreign system of law any element of confiscation."

n52 The Oregon statute provided that property claimed by nonresident aliens would escheat unless they could show (389 U.S. at 430-431, 88 S.Ct. at 665):

   "(1) the existence of a reciprocal right of a United States citizen to take property on the same terms as a citizen or inhabitant of the foreign county;

   (2) the right of United States citizens to receive payment here of funds from estates in the foreign county; and

   (3) the right of the foreign heirs to receive the proceeds of Oregon estates 'without confiscation.'"

[***86]

   The Supreme Court found in Zschernig that the application of the Oregon statute had "led into minute inquiries [*125] concerning the actual administration of foreign law," 389 U.S. at 435, 88 S.Ct. at 668. In the course of such inquiries, Oregon courts, along with the courts of other states applying similar statutes, had engaged in extensive critical commentary concerning the nature and conduct of foreign governments.  389 U.S. at 436-439 & nn. 8, 9, 88 S.Ct. at 668-670 & [**746] nn. 8, 9. n53£ The Court stated that "as construed," the Oregon statute "seem[ed] to make unavoidable judicial criticism of nations established on a more authoritarian basis than our own," 389 U.S. at 440, 88 S.Ct. at 670. The Court held that, because of "its great potential for disruption or embarrassment," the Oregon law had "more than 'some incidental or indirect effect in foreign countries,'" 389 U.S. at 434-435, 88 S.Ct. at 667. In the Court's view, the Oregon statute, as enforced, "affect[ed] international relations in a persistent and subtle [***87] way," 389 U.S. at 440, 88 S.Ct. at 670. In reaching this conclusion, the Court recognized, as in Clark v. Allen, supra, that the states "have traditionally regulated the descent and distribution of estates," 389 U.S. at 440, 88 S.Ct. at 671. "But," Justice Douglas emphasized, "those regulations must give way if they impair the effective exercise of the Nation's foreign policy."£ Ibid.

n53 In at least one instance, the application of the Oregon statute had prompted a complaint from a foreign nation.  389 U.S. at 437 n. 7, 88 S.Ct. at 668-669 n. 7.

   In explaining the distinction between Clark v. Allen and Zschernig v. Miller, courts and commentators have focused on the extensive judicial scrutiny and criticism of foreign governments to which the Court referred in the Zschernig opinion.  K.S.B. Tech. Sales Corp. v. North Jersey Dist. Water Supply Comm'n, supra, 75 N.J. at 291-292, 381 A.2d at 784; [***88] Matter of Leikind, 22 N.Y.2d 346, 352, 292 N.Y.S.2d 681, 685, 239 N.E.2d 550, 553 (1968), appeal dismissed, 397 U.S. 148, 90 S.Ct. 990, 25 L.Ed.2d 182 (1970); Gorun v. Fall, 287 F.Supp. 725, 728 (D.Mont.1968), aff'd, 393 U.S. 398, 89 S.Ct. 678, 21 L.Ed.2d 628 (1969); Lewis, [*126] Dealing with South Africa: The Constitutionality of State and Local Divestment Legislation, 61 Tul.L.Rev. 469, 513 (1987); Troyer, Slocombe & Boisture, Divestment of South Africa Investments: The Legal Implications for Foundations, Other Charitable Institutions, and Pension Funds, supra, 74 Geo.L.J. at 159.  As one group of commentators has observed (Troyer, Slocombe & Boisture, supra, 74 Geo.L.J. at 159):

   "The fatal flaw in administration of the Oregon nonresident inheritance statute was not that state law touched on foreign affairs, but the detailed, case-by-case judicial inquiries into foreign practices that the law entailed. Therefore, a single, general decision by a state mandating the divestment of [***89]state funds arguably would be beyond the scope of Zschernig."
 
Zschernig v. Miller circumscribes, but apparently does not eliminate, a state's ability under certain circumstances to take actions involving substantive judgments about foreign nations.

   In the present case, the circuit court concluded that the Baltimore City Ordinances did not unconstitutionally intrude upon the federal government's authority over foreign affairs.  The court reasoned that divestiture "requires no continuing investigation, assessment or commentary by local government officials or employees into the laws or operations of the South African government."£ We agree.  The Ordinances merely represent "a single, general decision" by Baltimore, "mandating the divestment" of the City's pension funds; as such, they are "beyond the scope of Zschernig," Troyer, Slocombe & Boisture, supra, 74 Geo.L.J. at 159. See 69 Op. of Att'y Gen. of Md. 87, 90 (1984) (expressing the view that Code (1985), § 6-208 of the State Finance and Procurement Article, generally prohibiting the deposit of State funds in financial institutions with loans to the South African government, "does not call for [***90] the level of state intrusion found repugnant in Zschernig").

   [*127] Baltimore City's purpose in enacting the Ordinances was simply to ensure that the City's pension funds would not be invested in a manner that was morally offensive to many Baltimore residents and many beneficiaries of the pension funds.  In addition, as the circuit court held, the effect of the Ordinances on South Africa is minimal and indirect.  A state or local law is not invalid if it has only "some incidental or indirect effect in foreign countries," Clark v. Allen, supra, 331 U.S. at 517, 67 [**747] S.Ct. at 1439; Zschernig v. Miller, supra, 389 U.S. at 434, 88 S.Ct. at 667. And, as one author observed (Note, State and Municipal Governments React Against South African Apartheid: An Assessment of the Constitutionality of the Divestment Campaign, 54 U.Cinn.L.Rev. 543, 574 (1985)): "When a state sells its stock in a corporation doing business in South Africa, it has no immediate effect on foreign relations between South Africa and the United States."

   Moreover, in the case at bar, the impact in South Africa [***91] is even further diminished because the Ordinances apply only to investments in companies doing a significant amount of business in South Africa and because the City Council included elaborate provisions ensuring that divestiture would only occur at a gradual pace.  Finally, the circuit court found "that divestment alone would not cause companies to leave South Africa and that the divestment movement does not create political instability in that country."£ In sum, the Ordinances' impact in South Africa is clearly minimal.

   The Trustees and the Intervenors rely heavily on three cases from other jurisdictions.

   In Springfield Rare Coin Galleries, Inc. v. Johnson, supra, 115 Ill.2d 221, 503 N.E.2d 300, the Illinois legislature had created an exemption from state occupation and use taxes for coins and currency issued by the United States and any foreign country except South Africa.  The Supreme Court of Illinois held that, because the exclusion of South African coins was not "motivated by a legitimate, permissible [*128] State purpose," 115 Ill.2d at 232, 503 N.E.2d at 305, the statute violated the Illinois [***92] Constitution.  See 115 Ill.2d at 232, 237, 503 N.E.2d at 305, 307. In reaching this decision, the court reasoned that "the exclusion's sole motivation [was] disapproval of a nation's policies" and that this "create[d] a risk of conflict between nations, and possible retaliatory measures," 115 Ill.2d at 236, 503 N.E.2d at 307. The court further observed that "the exclusion [was] targeted at a single foreign nation."£ Ibid.£ Finally, the court noted that "the practical effect of the exclusion [was] to impose, or at least encourage, an economic boycott of the South African Krugerrand" and that "regulations which amount to embargoes or boycotts are outside the realm of permissible State activity," 115 Ill.2d at 236-237, 503 N.E.2d at 307.

   New York Times Co. v. City of New York Comm'n on Human Rights, 41 N.Y.2d 345, 346, 393 N.Y.S.2d 312, 313, 361 N.E.2d 963 (1977), involved publication by the New York Times, allegedly in violation of New York City's antidiscrimination laws, of advertisements of employment opportunities [***93] in South Africa, which merely referred to that country as the situs of employment and did not recite any discriminatory conditions.  A plurality of the Court of Appeals of New York stated that the City's Commission on Human Rights could not apply the antidiscrimination law to the newspaper's conduct in that case, since the agency "was without jurisdiction to make and enforce its own foreign policy," 41 N.Y.2d at 352, 393 N.Y.S.2d at 317. The plurality reasoned (41 N.Y.2d at 353, 393 N.Y.S.2d at 318):
 
"It was beyond the ken of the city Commission on Human Rights to enforce local antidiscrimination laws by imposing an economic boycott of the Republic of South Africa.  In this very case, the commission conducted an inquiry that might have been considered offensive by the Republic of South Africa and which might have been an embarrassment to those charged with the conduct of our Nation's foreign policy. The true danger is that if New York City could do this in one instance, it could do so in many instances.  Each locality in each State may not [*129]adopt its own foreign policy. This would be disastrous, [***94] not only because of multiplicity and divergence of policies, but because local decisions are often influenced by pragmatic local considerations which are not necessarily controlling or even relevant to national policy as determined by the Federal Government at Washington."

   [**748] Finally, in Tayyari v. New Mexico State University, 495 F.Supp. 1365 (D.N.M.1980), the University's regents had moved to deny admission or readmission to any Iranian students until Iran released the Americans whom it held as hostages.  The court observed that the State Department had cautioned against actions such as those of the regents (id. at 1378, quoting affidavit of David D. Newsom, Undersecretary for Political Affairs, U.S. Department of State). n54£ In considering whether the University's conduct would "potentially affect" international relations, the court said (id. at 1379-1380):
"Here, Regents' motion is directed at one nation, Iran.  Their purpose was to make a political statement about the hostage situation in Iran and to retaliate against Iranian nationals here.  The potential effect on international relations vis-a-vis Iran is much [***95] greater here than with a regulation affecting all aliens regardless of nationality.  Attempts to solve the hostage crisis must come from the federal government. State officials in New Mexico must not impede those efforts."

n54 Mr. Newsom had stated as follows:
 
"State action directed essentially against Iranians, in response to the hostage crisis, although motivated by a high sense of patriotism and intended to complement federal actions, would potentially impede the conduct of our foreign relations.  Such action would constitute a serious unsanctioned state involvement in the conduct of United States foreign policy and international relations. . . .  [A] failure to provide Iranian nationals lawfully in this country with fair and nondiscriminatory treatment and the assurance of the equal protection of United States laws could have a negative impact on prospects for securing the early and safe release of the hostages.  State actions of this nature will necessarily impair the Federal Government's ability to manage this crisis."

[***96]

   [*130] Each of these decisions is distinguishable from the present case. Both New York Times Co. v. City of New York Comm'n on Human Rights, supra, and Springfield Rare Coin Galleries, Inc. v. Johnson, supra, involved state or local government efforts to structure relationships between its residents on one hand and South Africa or South African nationals on the other.  In New York Times Co. , New York City attempted to prevent newspapers from accepting employment notices from South African employers.  Similarly, in Springfield Rare Coin Galleries, Illinois sought to deter coin dealers in that State from contracting to import South African currency.  The Baltimore City Ordinances, however, are primarily an attempt by the City to structure its own financial affairs.  In calling for divestiture of the City's pension funds, Baltimore did not curtail the rights of South Africa or its citizens or any foreign national.  Thus, although the Ordinances might be viewed as having some tangential effect on economic relations between American firms and South African businesses or government, their [***97] impact on foreign affairs is far smaller than New York City's action in New York Times Co., supra, or that of Illinois in Springfield Rare Coin Galleries, supra.

   In Tayyari v. New Mexico State University, supra, the state action was directly aimed at certain foreign nationals, preventing them from attending a public university.  As pointed out above, however, the Baltimore City Ordinances do not curtail the activity of South African nationals or directly affect them. Instead, the Ordinances are aimed at the City's Trustees, telling the Trustees how best to invest City pension funds.  In addition, the State Department in Tayyari had taken the position that actions like those of the University might impede efforts to win the hostages' release; thus, in that case, there was a strong federal interest in avoiding interference from state measures that went beyond the sanctions already imposed by the national government.  Troyer, Slocombe & Boisture, supra, 74 Geo. [*131] L.J. at 159 n. 125. In the case of divestiture, however, the federal government has [***98] not taken the same position.

   The question of investment policy for public pension funds is ordinarily governed by local law, and no federal treaty or statute preempts the enactments at issue in this case.  Furthermore, in enacting these Ordinances, Baltimore City did not enter "the forbidden domain of negotiating with [**749] a foreign country . . . or making a compact with it" in violation of Article I, § 10, of the United States Constitution.  Clark v. Allen, supra, 331 U.S. at 517, 67 S.Ct. at 1439. Finally, as shown above, the Ordinances have only an incidental or indirect affect in foreign countries.  Consequently, we hold that the Ordinances do not intrude upon the federal government's authority to conduct foreign relations.

   VII.

   The Commerce Clause of the United States Constitution, Art. I, § 8, cl. 3, empowers the Congress "to regulate Commerce with foreign Nations, and among the several States. . . ."£ The Clause is both an affirmative grant of legislative power to Congress and an implied limitation on the power of state and local governments to enact laws affecting foreign or interstate commerce. See New Energy Co. of Indiana v. Limbach, 486 U.S. 269, 108 S.Ct. 1803, 1807, 100 L.Ed.2d 302 (1988); [***99] Cooley v. Board of Wardens, 53 U.S. (12 How.) 299, 13 L.Ed. 996 (1851); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L.Ed. 23 (1824); County Comm'rs of Charles Co. v. Stevens, 299 Md. 203, 208, 473 A.2d 12, 14 (1984). The aspect of the Commerce Clause which operates as an implied limitation upon state and local government authority is often referred to as the "dormant" or "negative" Commerce Clause.

   The Trustees and Intervenors argue that, in violation of this "dormant" aspect of the Commerce Clause, the Baltimore City Ordinances place an impermissible burden on interstate commerce and improperly regulate foreign commerce. The City responds by contending that, in passing [*132] the Ordinances, the City is not subject to the scrutiny of the dormant Commerce Clause because the City is functioning as a "market participant."£ The Trustees and Intervenors reply that the City is not acting as a market participant and that, in any case, the market participant doctrine is inapplicable to foreign commerce.

   A.

   In adopting the "market-participant doctrine," the Supreme Court has held that, when a [***100] state acts as a buyer or seller in a market rather than in its "distinctive governmental capacity," its behavior is not "subject to the limitations of the negative Commerce Clause."£ New Energy Co. of Indiana v. Limbach, supra, 108 S.Ct. at 1809. In other words, "if a State is acting as a market participant, rather than as a market regulator, the dormant commerce clause places no limitation on its activities."£ South-Central Timber Devo., Inc. v. Wunnicke, 467 U.S. 82, 93, 104 S.Ct. 2237, 2243, 81 L.Ed.2d 71 (1984). See Wisconsin Dept. of Industry v. Gould, 475 U.S. 282, 106 S.Ct. 1057, 89 L.Ed.2d 223 (1986); United Bldg. & Constr. Trades Council v. Mayor of Camden, 465 U.S. 208, 104 S.Ct. 1020, 79 L.Ed.2d 249 (1984); White v. Mass. Council of Constr. Employers, 460 U.S. 204, 103 S.Ct. 1042, 75 L.Ed.2d 1 (1983); Reeves, Inc. v. Stake, 447 U.S. 429, 100 S.Ct. 2271, 65 L.Ed.2d 244 (1980); Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 96 S.Ct. 2488, 49 L.Ed.2d 220 (1976); [***101]County Comm'rs of Charles Co. v. Stevens, supra, 299 Md. 203, 473 A.2d 12; L. Tribe, American Constitutional Law, supra, § 6-11.

   As the Supreme Court explained in Reeves, Inc. v. Stake, supra, 447 U.S. at 436-437, 100 S.Ct. at 2277, "the Commerce Clause responds principally to state taxes and regulatory measures impeding free private trade in the national marketplace. . . .  There is no indication of a constitutional plan to limit the ability of the States themselves to operate freely in the free market."£ Accordingly, the Supreme Court has held that the Commerce Clause was not implicated when South Dakota adopted a policy under which sales [*133] from a state-owned cement plant were confined to state residents, Reeves, Inc. v. Stake, supra. Similarly, this Court has held that the market-participant doctrine shielded a local regulation providing that no trash from outside Charles County's territorial limits could be disposed at the County's publicly owned landfill.  County Comm'rs of Charles Co. v. Stevens, supra. [***102]

   The Trustees and Intervenors argue that, even when a State buys, sells, or [**750]invests in articles of commerce, the State is a market regulator rather than a market participant unless it has acted in order to "'favor its own citizens over others,'" (quoting Hughes v. Alexandria Scrap Corp., supra, 426 U.S. at 810, 96 S.Ct. at 2498). The Divestiture Ordinances do not purport to favor Baltimore City residents over others.  Therefore, the Trustees and Intervenors conclude, the market-participant doctrine is inapplicable.

   In the cases in which the Supreme Court and this Court have recognized claims of market participation, the State has largely acted in its own citizens' economic interest and to the disadvantage of citizens of other states.  See, e.g., United Bldg. & Constr. Trades Council v. Mayor of Camden, supra, 465 U.S. 208, 104 S.Ct. 1020; White v. Mass. Council of Constr. Employers, supra, 460 U.S. 204, 103 S.Ct. 1042; Reeves, Inc. v. Stake, supra, 447 U.S. 429, 100 S.Ct. 2271; Hughes v. Alexandria Scrap Corp., supra, 426 U.S. 794, 96 S.Ct. 2488; [***103]County Comm'rs of Charles Co. v. Stevens, supra, 299 Md. 203, 473 A.2d 12.

   The Supreme Court has not, however, limited the market-participant principle to legislation aimed at economically benefitting a state's own citizens.  Courts have applied the market-participant doctrine even when a State's conduct was not clearly designed to benefit local economic interests at the expense of nonresidents.  See, e.g., Salem Transp. Co. v. Port Authority of N.Y. & N.J., 611 F.Supp. 254 (S.D.N.Y.1985); Transport Limo. v. Port Authority of N.Y. & N.J. , 571 F.Supp. 576 (E.D.N.Y.1983). Similarly, in [*134] K.S.B. Tech. Sales Corp. v. North Jersey Dist. Water Supply Comm'n, supra, 75 N.J. 272, 381 A.2d 774, the court applied the market-participant doctrine to uphold New Jersey's "Buy American" statute.  At best, that law benefitted state residents only indirectly by channelling state funds away from foreign manufacturers and towards American manufacturers, some of whom might have been located in New Jersey.
 
   Language in the Supreme Court's opinions clearly suggests that the market-participant [***104] doctrine has a broader sweep than argued for by the Trustees and Intervenors. For example, in Reeves, Inc. v. Stake, supra, the Court indicated that the doctrine rests in part on "'the long recognized right of a trader or manufacturer, engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal,'" 447 U.S. at 438-439, 100 S.Ct. at 2278 (quoting United States v. Colgate & Co., 250 U.S. 300, 307, 39 S.Ct. 465, 468, 63 L.Ed. 992 (1919)). "Moreover," the Court continued, "state proprietary activities may be, and often are, burdened with the same restrictions imposed on private market participants. Evenhandedness suggests that, when acting as proprietors, States should similarly share existing freedoms from federal constraints, including the inherent limits of the Commerce Clause."£ 447 U.S. at 438-439, 100 S.Ct. at 2278-2279. These broad statements suggest that, just as a private merchant may elect not to deal with companies doing business in South Africa, [***105] the City too may make the same choice unhindered by the constraints of the Commerce Clause.

   Furthermore, because the Divestiture Ordinances do not favor local residents at the expense of nonresidents, they pose a smaller threat to the national common market than do the overtly discriminatory measures that, according to the Trustees, the market-participant doctrine sanctions.  With regard to state regulatory legislation, the Supreme Court has long recognized that, while discrimination in favor of local economic interests is usually invalid under the [*135] Commerce Clause, nondiscriminatory legislation will be upheld unless the burden on interstate commerce outweighs the local interests effectuated by the legislation.  Compare Philadelphia v. New Jersey, 437 U.S. 617, 624, 98 S.Ct. 2531, 2535, 57 L.Ed.2d 475 (1978), with Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970). Thus, as to the applicability of the market-participant doctrine, "'It would be odd indeed to find that when a state becomes less parochial . . . its purpose becomes suspect under the Commerce [***106] Clause,'" Reeves, Inc. v. Stake, supra, 447 U.S. at 445, 100 S.Ct. at [**751] 2281 (quoting K.S.B. Tech. Sales Corp. v. New Jersey Dist. Water Supply Comm'n, supra, 75 N.J. at 298, 381 A.2d at 787).

   The Trustees and Intervenors rely heavily on the Supreme Court's opinion in Wisconsin Dept. of Industry v. Gould, supra, 475 U.S. 282, 106 S.Ct. 1057. In that case, a statute prohibited the state, for a period of three years, from purchasing products manufactured or sold by entities who had been found to have violated the National Labor Relations Act in three separate cases over a five-year period.  Because Wisconsin had provided a "supplemental sanction" that conflicted with Congress's comprehensive plan for labor regulation, the Court held that the National Labor Relations Act preempted the state law. Wisconsin, however, had defended its statute by invoking the market-participant doctrine. While observing that this doctrine applies only where Congress has failed to act and not where Congress has affirmatively legislated, the Court also stated (475 U.S. at 289, 106 S.Ct. at 1062): [***107] "We agree with the Court of Appeals, however, that by flatly prohibiting state purchases from repeat labor law violators Wisconsin 'simply is not functioning as a private purchaser of services, . . .'; for all practical purposes, Wisconsin's debarment scheme is tantamount to regulation."£ Similarly, the Trustees maintain that, by "flatly prohibiting" investments in companies doing business in South Africa, the City has engaged in market regulation as opposed to market participation.
 
   [*136] We believe that the Trustees' reliance on the Court's brief remarks in Gould is misplaced.  Preliminarily, we note that the decision in Gould was based on preemption, and the Court clearly held that the market-participant doctrine is inapplicable where state or local action is preempted. Furthermore, the circumstances in Gould are clearly distinguishable from those in the present case.  The legislation at issue in Gould was conceded by the state to be punitive.  Repeat labor law violators could not conduct any business with the State for three years.  Thus the corporate appellee in Gould could not contract with the State because of "four [National Labor Relations] Board orders [***108] against various divisions of the company, . . . none of which [appellee] still owned at the time of its debarment."£ Gould, supra, 475 U.S. at 285, 106 S.Ct. at 1060. The Baltimore City Ordinances, on the other hand, have the primary purpose of removing a perceived moral taint from the City's investments and not to punish any entity. Furthermore, under the Ordinances, a company suffers no protracted "sanction" of the type employed in Gould.  A company which ceases to do substantial business with South Africa may immediately "benefit" from the City's investment.

   The Trustees' interpretation of Gould would conflict with the Supreme Court's recognition that, when a state acts in a proprietary capacity, the Commerce Clause is not concerned with its decisions as to the parties with whom it will or will not deal.  See, e.g., Reeves, Inc. v. Stake, supra, 447 U.S. at 438-439, 100 S.Ct. at 2278.

   The Trustees and Intervenors also rely upon South-Central Timber Devo., Inc. v. Wunnicke, supra, involving an Alaska regulation under which a purchaser of state-owned [***109] timber was required, as a condition of his contract, to process the timber in Alaska before shipping it outside of that State.  In South-Central Timber, Justice White, writing for the plurality, stated (467 U.S. at 97-98, 104 S.Ct. at 2245):

   "The limit of the market participant doctrine must be that it allows a State to impose burdens on commerce [*137] within the market in which it is a participant, but allows it to go no further.  The State may not impose conditions, whether by statute, regulation, or contract, that have a substantial regulatory effect outside of that particular market."
 
In the plurality's view, Alaska was a market participant in the market for the sale of timber but not in the market for processed timber.  Thus, because the State had exerted its economic leverage to affect a market in which it did not participate, it acted as a market regulator.

   On the other hand, in White v. Mass. Council of Constr. Employers, supra, the [**752] Court held that the market-participant doctrine applied when the Mayor of Boston ordered that, on construction projects funded in whole or in part [***110] with City funds, at least 50% of the work force should be composed of Boston residents. Thus, the White Court permitted the City of Boston to use its economic leverage over public contractors in order to limit the contractors' discretion as to the parties with whom they might deal.  In reaching this decision, the Court reasoned that the City's action "cover[ed] a discrete, identifiable class of economic activity in which the city [was] a major participant."£ 460 U.S. at 211 n. 7, 103 S.Ct. at 1046 n. 7. Moreover, the Court continued, "[e]veryone affected by the order [was], in a substantial if informal sense, 'working for the city.'"£ Ibid.£ In South-Central Timber, supra, the Court distinguished White as follows (467 U.S. at 99, 104 S.Ct. at 2246):
"In contrast to the situation in White, this restriction on private economic activity takes place after the completion of the parties' direct commercial obligations, rather than during the course of an ongoing commercial relationship in which the city retained a continuing proprietary interest in [***111] the subject of the contract."

   We think that the present case is more like the situation in White than that in South-Central Timber.  The City's ownership of a security gives rise to "an ongoing commercial relationship in which the city retain[s] a continuing proprietary interest" in the firm in which it invests. Thus, [*138] the City is not imposing conditions which have a substantial regulatory effect outside of the market in which it is participating.

   B.

   The Supreme Court has expressed no opinion as to whether the market-participant doctrine applies to state conduct affecting foreign commerce. Reeves, Inc. v. Stake, supra, 447 U.S. at 438 n. 9, 100 S.Ct. at 2278 n. 9. See also South-Central Timber Devo., Inc. v. Wunnicke, supra, 467 U.S. at 96, 104 S.Ct. at 2245. The considerations underlying the restraints on state power to burden foreign commerce are distinct from the considerations underlying the restraints on state authority to burden interstate commerce. Also, a "more extensive constitutional inquiry is required" when applying the foreign Commerce Clause. Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 446, 99 S.Ct. 1813, 1820, 60 L.Ed.2d 336 (1979). [***112]

   As noted previously, however, the concerns which underlie the foreign Commerce Clause are closely related to the concerns underlying the limits on a state's authority to affect foreign policy. The purpose behind both limitations is to prevent individual states from adversely affecting relations with foreign countries that are properly coordinated on a national level.  In the circumstances of this case, application of the market-participant doctrine to state conduct affecting foreign commerce does no violence to this goal.  As discussed in Part VI of this opinion, the Ordinances are not inconsistent with national policy.  There is no clear evidence that the federal government views local divestiture efforts as conflicting with national foreign policy.

   Some authorities have taken the position that the market-participant doctrine would be applicable in foreign commerce cases.  For example, in K.S.B. Tech. Sales Corp. v. North Jersey Dist. Water Comm'n, supra, 75 N.J. 272, 381 A.2d 774, the Supreme Court of New Jersey used the market-participant doctrine to uphold New Jersey's "Buy-American" [*139] Statute, which generally required the use of American [***113] products in projects funded by the state.  The New Jersey court recognized that "some differences between interstate and foreign commerce exist," but saw no need "to differentiate between the two" in the factual context of that case.  75 N.J. at 300, 381 A.2d at 788.

   In Carll v. S.C. Jobs-Economic Devel.  Authority, 284 S.C. 438, 327 S.E.2d 331 (1985), the Supreme Court of South Carolina upheld a statute which provided capital and management assistance to certain South Carolina enterprises against a challenge that the legislation interfered with interstate and foreign commerce. The [**753] Court held: "The Commerce Clause does not prohibit implementation of any portion of this Act because South Carolina is a market participant and is entitled to establish guidelines for its participation regardless of the effect on interstate or foreign commerce."£ 327 S.E.2d at 337. 

   Similarly, the Attorney General of Maryland, in a letter to the Governor, expressed the opinion that the market-participant exception applied to Code (1985), § 6-208 of the State Finance and Procurement Article, which generally prohibits the [***114] State from depositing its funds in financial institutions with loans in South Africa.  69 Op. of the Att'y Gen. of Md., supra , at 88-89.  In reaching this conclusion, the Attorney General emphasized that the statute embodied the State's decision concerning "where to deposit its own funds."£ Ibid.

   Finally, we note that a leading contemporary treatise on constitutional law specifically states that, despite their effect on foreign commerce, divestiture statutes and ordinances fall within the market-participant doctrine:

   "A distinction must be drawn between state regulation of foreign commerce, and state participation in foreign commerce. The former activity is tightly proscribed by the negative implications of what might be called the foreign commerce clause.  Thus, a state or local government that opposed the regime of apartheid in the Union of South Africa could not, absent congressional authorization, enact a measure denying South African companies [*140] the privilege of doing business within its jurisdiction; nor could a state or locality forbid its citizens and resident corporations from investing in or trading with multinational corporations which have affiliates [***115] or subsidiaries in South Africa.  But under the Supreme Court's market participant exception to the commerce clause, a state would be free to pass laws forbidding investment of the state's pension funds in companies that do business with South Africa, or rules requiring that purchases of goods and services by and for the state government be made only from companies that have divested themselves of South African commercial involvement."
 
L. Tribe, American Constitutional Law, supra, § 6-21, at 469.

   While a few authors have reached a contrary conclusion, n55 we are persuaded that, in mandating the divestment of municipally administered pension funds, the City of Baltimore acted as a market participant even though its actions had consequences for foreign commerce. Unlike the examples of market regulation set forth in Professor Tribe's treatise, the Ordinances do not attempt to interfere with private, commercial transactions between persons engaged in foreign commerce. Rather, the Ordinances simply represent Baltimore City's decision concerning the proper way of investing funds which the City has the authority to administer and which therefore "belong" [***116] to the City, although as a trustee.  See 69 Op. of the Att'y Gen. of Md., supra, at 88-89.  Moreover, in light of the particular circumstances of this case, we see no reason why a different result should obtain simply because the Ordinances may affect both interstate and foreign commerce. See K.S.B. Tech. Sales Corp. v. North Jersey Dist. Water Comm'n, supra, 75 N.J. at 300, 381 A.2d at 788; Carll v. S.C. Jobs -- Economic Devel.  Authority, supra, 327 S.E.2d at 337. Consequently, we [*141]hold that, under the market-participant doctrine, the Ordinances do not violate the negative implications of Congress' power to regulate foreign commerce.

 n55 Lewis, Dealing With South Africa: The Constitutionality of State and Local Divestment Legislation, 61 Tul.L.Rev. 469, 478-487 (1987); Note, State and Local Anti-South Africa Action as an Intrusion upon The Federal Power in Foreign Affairs, supra, 72 Va.L.Rev. at 838-841.

   C. [***117]

   Even if the Ordinances were not exempt from Commerce Clause scrutiny because of the market-participant doctrine, we believe that they would survive such scrutiny.

   (1)

   In Pike v. Bruce Church, Inc., supra, the Supreme Court set forth the test for [**754] determining the constitutionality of state or local laws affecting interstate commerce (397 U.S. at 142, 90 S.Ct. at 847):
"Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.  Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 443, 80 S.Ct. 813, 816, 4 L.Ed.2d 852. If a legitimate local purpose is found, then the question becomes one of degree.  And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities."

   In Maine v. Taylor, 477 U.S. 131, 106 S.Ct. 2440, 91 L.Ed.2d 110 (1986), [***118]the Supreme Court clarified when the Pike v. Bruce Church test is applicable, noting that when evaluating the constitutionality of state laws affecting interstate commerce, the appropriate standard to be applied depends on whether the statute's effect on interstate commerce is incidental or whether the statute affirmatively discriminates against interstate commerce. The Court stated (477 U.S. at 138, 106 S.Ct. at 2447):

   "In determining whether a State has overstepped its role in regulating interstate commerce, this Court has distinguished between state statutes that burden interstate [*142] transactions only incidentally, and those that affirmatively discriminate against such transactions.  While statutes in the first group violate the Commerce Clause only if the burdens they impose on interstate trade are 'clearly excessive in relation to the putative local benefits,' Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970), statutes in the second group are subject to more demanding scrutiny.  The Court explained in Hughes v. Oklahoma, 441 U.S. 322, 336, 99 S.Ct. 1727, 1736, 60 L.Ed.2d 250 (1979), [***119] that once a state law is shown to discriminate against interstate commerce 'either on its face or in practical effect,' the burden falls on the State to demonstrate both that the statute 'serves a legitimate local purpose,' and that this purpose could not be served as well by available nondiscriminatory means."
 
See, e.g., Sporhase v. Nebraska Ex Rel. Douglas, 458 U.S. 941, 955-956, 102 S.Ct. 3456, 3464, 73 L.Ed.2d 1254 (1982); Hughes v. Oklahoma, 441 U.S. 322, 99 S.Ct. 1727, 60 L.Ed.2d 250 (1979); Exxon Corp. v. Governor of Maryland, supra, 437 U.S. at 126, 98 S.Ct. at 2214; Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 97 S.Ct. 2434, 2445, 53 L.Ed.2d 383 (1977); Dean Milk Co. v. City of Madison, Wis., 340 U.S. 349, 354, 71 S.Ct. 295, 298, 95 L.Ed. 329 (1951).

   There has been no showing that the Ordinances, either facially or in purpose and effect, favor residents of the City of Baltimore or the State of Maryland over residents of any other State.  [***120] They apply even-handedly.  The divestiture provisions are applicable to all firms in which the City might wish to invest, wherever those firms might be located.  In enacting the Ordinances, the City Council clearly did not intend to secure economic advantages for local businesses at the expense of businesses situated elsewhere.  Compare, e.g., Dean Milk Co. v. City of Madison, Wis., supra, 340 U.S. 349, [*143] 71 S.Ct. 295. n56

n56 The Intervenors, citing Milk Control Bd. v. Eisenberg Farm Prods., 306 U.S. 346, 59 S.Ct. 528, 83 L.Ed. 752 (1939), suggest that the Ordinances are discriminatory because they "block or impair the commerce of certain companies based upon the location of their operations."£ (Brief at p. 24).  The Intervenors, however, fail to recognize that, under the principle they invoke, the location of operations is relevant only to the extent that a State discriminates against out-of-state businesses and in favor of in-state businesses.  See generally, Tribe, American Constitutional Law, supra, §§ 6-6 to 6-9, 6-17.  To show "discrimination" against companies doing business in South Africa is not necessarily the same as showing discrimination in favor of local interests.  Lewis, Dealing With South Africa: The Constitutionality of State and Local Divestment Legislation, supra, 61 Tul.L. Rev. at 493-494.

[***121]

   Therefore, under Pike v. Bruce Church, supra, we must inquire whether the incidental [**755] burden on interstate commerce caused by divestment is "clearly excessive" in relation to the City's legitimate local interests.

   In our opinion, it is indisputable that the Ordinances effectuate legitimate, local public interests.  The divestiture provisions respond to the local interest in managing the City's finances and in ensuring that pension funds are invested in a socially responsible manner.  They permit the City and its citizens to distance themselves from the moral taint of coventuring in firms that, in the view of many, help to maintain South Africa's system of racial discrimination.  Finally, they express the City's sensitivity to the deep feeling of its citizenry on this matter of fundamental human dignity.

   The Trustees and Intervenors argue that by requiring the sale of hundreds of millions of dollars of investment portfolios, with the intended effect of forcing corporations to withdraw from business operations in and with South Africa, the Ordinances substantially burden interstate commerce. While we do not dispute that the Ordinances impose [***122] some burden on interstate commerce, in our opinion that burden is not excessive in relation to the benefits.  The Ordinances embody the City's moral condemnation of racial discrimination.  The use of pension funds arguably to support [*144] racial discrimination in South Africa is an issue of deep concern, not only to the pension systems' members and beneficiaries but also to all citizens of Baltimore who are sensitive to slavery's persistent legacy.  In our judgment, the Ordinances' burden on the interstate sale of securities does not outweigh these unique and profound local concerns.

   Urging a contrary conclusion, the Trustees argue (Brief at p. 50) that the Ordinances "are not the least intrusive means of accomplishing their claimed purpose."£ See A & P Tea Co. v. Cottrell, 424 U.S. 366, 372-373, 96 S.Ct. 923, 928-929, 47 L.Ed.2d 55 (1976); Pike v. Bruce Church, Inc., supra, 397 U.S. at 142, 90 S.Ct. at 847; Dean Milk Co. v. City of Madison, Wis., supra, 340 U.S. at 354, 71 S.Ct. at 298. According to the Trustees, the City might have promoted its [***123] interests with a lesser impact on interstate activities had the Ordinances allowed investments in companies achieving satisfactory progress ratings under the Sullivan Principles. n57£ The Trustees, however, stipulated that in South Africa a number of important black organizations and leaders, including Archbishop Desmond Tutu, favor divestiture and oppose the Sullivan Principles.  Furthermore, Mr. Hauck, the Trustees' expert, conceded that, in light of the political situation in South Africa, with press restrictions and the successive states of emergency, there no longer existed a "window of opportunity" for American businesses to promote changes in the apartheid system. The City was, therefore, entitled to conclude that a plan of divestment based on the Sullivan principles was insufficient.

n57 The Trustees also maintained (Brief at 50) that, by virtue of their incorporation of the Africa Fund's broad "doing business" standard, the Ordinances "represent the most instrusive divestiture scheme in the United States."£ We have held, however, that the Trustees are not bound by the Africa Fund's list.  Consequently, we need not address this contention by the Trustees. 

[***124]

   In a separate argument the Intervenors assert that the Ordinances create a "blockage" of interstate commerce by preventing the Trustees from entering the interstate securities [*145] market to purchase the stocks and bonds of companies doing business in South Africa.  We disagree that this "blockage" represents a cognizable burden on interstate commerce.

   The Commerce Clause does not protect particular interstate firms; it protects the interstate market as a whole.  As the Supreme Court stated in Exxon Corp. v. Governor of Maryland, supra, 437 U.S. at 127, 98 S.Ct. at 2214, "interstate commerce is not subjected to an impermissible burden simply because an otherwise valid regulation causes some business to shift from one interstate supplier to another."£ Thus, contrary to the Intervenors' argument, the Ordinances are not invalid merely on the ground that divestiture requires the Trustees to shift the City's investments away [**756] from some interstate firms and towards others.

   In light of the foregoing, we hold that the Ordinances satisfy the criteria of Pike v. Bruce Church, Inc., supra, and do not place [***125] an impermissible burden on interstate commerce.

   (2)

   As previously discussed, state conduct is undoubtedly subject to more intensive Commerce Clause scrutiny when it affects foreign as opposed to interstate commerce. See Japan Line, Ltd. v. County of Los Angeles, supra, 441 U.S. at 446, 99 S.Ct. at 1820; L. Tribe, American Constitutional Law, supra, § 6-21, at 469.  Nevertheless, Congress's power over foreign commerce is not completely exclusive.  As the Supreme Court stated in Bob-Lo Excursion Co. v. Michigan, 333 U.S. 28, 37-38, 68 S.Ct. 358, 363, 92 L.Ed. 455 (1948):
"It is far too late to maintain that the states possess no regulatory powers over such commerce.  From the first meeting of Congress they have regulated important phases of both foreign and interstate commerce, particularly in relation to transportation by water, with Congress' express consent.  And without such consent for nearly a hundred years they have exercised like power under the [*146] local diversity branch of the formula announced in Cooley v. Board of Wardens, [53 U.S. (12 How.) 299, 13 L.Ed. 996]. [***126] See Union Brokerage Co. v. Jensen, 322 U.S. 202 [64 S.Ct. 967, 88 L.Ed. 1227]; Kelly v. Washington, 302 U.S. 1 [58 S.Ct. 87, 82 L.Ed. 3] and authorities cited in both cases.  Indeed the Cooley criterion has been applied so frequently in cases concerning only commerce among the several states that it is often forgotten that that historic decision dealt indiscriminately with such commerce and foreign commerce."

   In Japan Line, Ltd. v. County of Los Angeles, supra, the Supreme Court stressed that the States may not "impair federal uniformity in an area where federal uniformity is essential," 441 U.S. at 448, 99 S.Ct. at 1821, or prevent "the Federal Government from 'speaking with one voice' in international trade," 441 U.S. at 453, 99 S.Ct. at 1824.

   The Trustees and Intervenors seem to argue that the United States cannot "speak with one voice" unless only one voice, that of the federal government, is allowed to speak.  In Container Corp. v. Franchise Tax Board, 463 U.S. 159, 194, 103 S.Ct. 2933, 2955, 77 L.Ed.2d 545 (1983), [***127] however, the Supreme Court established that, even when state legislation relates to questions of foreign policy, the legislation violates the negative implications of the foreign Commerce Clause only "if it either implicates foreign policy issues which must be left to the Federal Government or violates a clear federal directive."£ Essentially for reasons previously set forth in this opinion, the Ordinances clearly appear to be valid under this test.

   The Trustees and the Intervenors, however, contend that the Ordinances prevent the Nation from "speaking with one voice" because divestiture is likely to offend South Africa and lead it to retaliate not only against Baltimore but "against the Nation as a whole," Container Corp., supra, 463 U.S. at 194, 103 S.Ct. at 2955. Retaliation, they argue, is all the more likely in this case because the Ordinances are concerned with a specific foreign nation rather than foreign commerce in general.

   [*147] In our view, the likelihood of retaliation would appear to be remote, given the record in this case and the absence of any clear indication from the federal government that divestment legislation interferes [***128] with the Nation's foreign policy. n58£ See also Note, State and Municipal Governments React Against South African Apartheid: An Assessment of the Constitutionality of the Divestment Campaign, supra, 54 U.Cinn.L.Rev. at 563 ("Nearly twenty years after the beginning of the divestment campaign, South Africa has not [**757] evinced any intent to retaliate . . . South Africa's inaction appears to validate the notion that South Africans 'will endure rather substantial economic damage before they would . . . countersanction the United States.'")£ Indeed, despite their far broader impact on trade between the United States and South Africa, congressional sanctions have not provoked the type of retaliation feared by the Trustees and the Intervenors. Consequently, we cannot conclude that the Ordinances "might justifiably lead to significant foreign retaliation," Container Corp., supra, 463 U.S. at 194, 103 S.Ct. at 2955.

n58 The evidence before the circuit court showed that divestment has been a negligible factor in companies' decisions to leave South Africa.

[***129]

   Finally, we disagree with the Trustees and Intervenors that the City's voice, as expressed in the Ordinances, undermines the federal government's ability to prescribe uniform regulations governing trade with South Africa.  By virtue of their moral condemnation of apartheid, the Ordinances are "broadly consistent" with federal policy towards South Africa, as embodied in the Anti-Apartheid Act. See Tribe Memorandum, supra, 132 Cong.Rec. S 12535; Lewis, supra, 61 Tul.L.Rev. at 502-503. Thus, although the substance of the Ordinances may differ from that of the federal statute, the underlying message of both is the same. Furthermore, as repeatedly mentioned, the federal government has not taken the position that divestment legislation interferes with the Nation's ability to achieve its foreign policy objectives.

   [*148] For the foregoing reasons, we hold that the Baltimore City Ordinances do not violate the Commerce Clause of the United States Constitution. 

   JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY MODIFIED SO AS TO GRANT THE MOTION FOR INTERVENTION AND TO REFLECT THE VIEWS SET FORTH IN THIS OPINION, AND AS MODIFIED, AFFIRMED.  IN NO. 95, COSTS TO [***130] BE PAID BY THE BOARDS OF TRUSTEES.  IN NO. 104, ONE-HALF OF THE COSTS TO BE PAID BY THE APPELLANTS AND ONE-HALF OF THE COSTS TO BE PAID BY THE MAYOR AND CITY COUNCIL OF BALTIMORE. 

Siu Leung SHUM v. D.L. GAUDREAU 
No. 2, September Term, 1989
 
Court of Appeals of Maryland
 
317 Md. 49; 562 A.2d 707; 1989 Md. LEXIS 121

 August  31, 1989

   PRIOR HISTORY: [***1]  
Certiorari to Circuit Court for  Anne Arundel  County, Robert S. Heise, Judge.

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED WITH DIRECTIONS TO REMAND, WITHOUT AFFIRMANCE OR REVERSAL, TO THE DISTRICT COURT OF MARYLAND SITTING IN ANNE ARUNDEL COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  COSTS TO BE PAID BY RESPONDENT.

CORE TERMS:  tenant, landlord, rent, lease, repair, leased, ejectment, res judicata, water, repossession, renovations, septic tank, residential, claim preclusion, commercial lease, new trial, instituted, enjoyment, contract action, dormitory, surrender, covenant, judicata, artesian, entire transaction, cause of action, common law, dispossession, installation, splitting

COUNSEL: Charles J. Muskin, Glen Burnie, Maryland for petitioner.

   No argument on behalf of respondent.

JUDGES: Murphy, C.J., and Eldridge, Cole, Rodowsky, McAuliffe, Adkins and Blackwell, JJ.

OPINIONBY: ADKINS

OPINION: [*51] [**708] We here consider the res judicata effect of a landlord's action for repossession of premises and unpaid rent on a subsequent action by the landlord to recover for the cost of repairing damage done to the leased premises during the term of the tenancy.  The issues presented arise from a dispute between respondent D.L. Gaudreau ("Landlord") and petitioner Siu Leung Shum ("Tenant").  Landlord leased property to Tenant on 18 September 1985.  The [*52] rented parcel, 1459 Fairfield Loop Road in Anne Arundel County, Maryland, was a residence.  But Tenant, owner of an Annapolis-area restaurant, did not rent the property to use as a home.  Instead, he rented [***2] the property because it was "close to work, [to use] as an office, sometimes I would take an afternoon break . . . there."

   During the first year of the lease, Tenant decided that the property was not suitable as an office and used the property as a dormitory for some of his restaurant employees.  The lease was renewed for a second [**709] year (for the year ending 30 September 1987) on 5 September 1986.

   During the summer of 1986, Tenant complained to Landlord about the house's lack of water supply.  In response, a new well was drilled.  A water conditioner system was installed in October 1987. n1£ In June 1987 Landlord wrote a letter to Tenant advising the latter that the home was in "deplorable condition due to the number of people" living there.  Landlord requested that the home be cleaned and repaired.  On 2 September 1987 and throughout that month and early October, Landlord made extensive repairs to the property.  Tenant did not pay the September rent and vacated the premises some time between 24 and 30 September.

n1 Apparently the first well could not provide sufficient water to the home because, at various times, as many as nine of the Tenant's employees were residing there.

[***3]

   On 22 September 1987, pursuant to Maryland Code (1988 Repl.Vol., 1988 Cum.Supp.), Real Property Article, § 8-401, Landlord brought an action against Tenant in the District Court of Maryland sitting in Anne Arundel County.  He sought repossession of the property and a judgment for one month's rent. On 29 September he obtained that relief, including personal judgment against Tenant for $550, the rent found to be due.

   That case is not the one we have before us.  The present matter arises from a contract action, instituted by Landlord in the District Court of Maryland sitting in Anne Arundel [*53] County on 13 October 1987.  There, Landlord alleged that Tenant had caused damage to the property in the amount of $9,200.

   This amount allegedly due by Tenant was based on damage to the floors in the living room and kitchen, damage to walls of the home, to the stove and refrigerator, and to doors in the interior of the home; required pest extermination; and the cost of hauling furniture abandoned by Tenant. Landlord also requested reimbursement for costs, incurred both before and after Tenant's departure, for lawn and gardening services (because of the Tenant's failure to maintain the [***4] lawn as required by the lease) and for septic tank service.  Finally, the Landlord requested reimbursement for the new well and water conditioner system.  The District Court, after a trial, awarded Landlord $6,500.  It gave no explanation of the basis for liability or the computation of damages.  Tenant appealed to the Circuit Court for Anne Arundel County, questioning the sufficiency of the evidence to support certain damages claimed by Landlord and asserting that the contract action was barred by res judicata.

   After a hearing on the record made in the District Court, the circuit court reversed and remanded the case to the District Court for a new trial. The circuit court held that the District Court had failed to set forth adequate findings of fact or law from which the circuit court could "understand what weight was given by the trier of fact to the items [of damage] or the values of same; nor was there any reasoning in law as to the ultimate conclusions."£ With regard to res judicata, however, the court held that there was no basis for the argument because the earlier action for rent and repossession, pursuant to § 8-401, and the subsequent contract action for damages to the [***5] property "are two separate causes of action."£ We granted certiorari to determine whether the action instituted on 13 October 1987 is barred by res judicata and if it is not, whether the circuit court was correct in remanding the case to the [*54] District Court for a new trial. 315 Md. 223, 554 A.2d 351 (1989).

   I.

   In MPC, Inc. v. Kenny, 279 Md. 29, 367 A.2d 486 (1977), we stated the rule of res judicata:
 
"The doctrine of res judicata is that 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. . . ."
 
279 Md. at 32, [**710] 367 A.2d at 488-489 (quoting Alvey v. Alvey, 225 Md. 386, 390, 171 A.2d 92, 94 (1961)) [ellipsis and emphasis added in MPC, Inc.]. See generally Restatement (Second) of Judgments §§ 17, 18 (1982).  We are concerned here with the concept of claim preclusion. See generally Kent County Bd. of Educ. v. Bilbrough, 309 Md. 487, 489-490, 525 A.2d 232, 233 (1987). [***6]n2£ We must first determine whether the contract action instituted by Landlord on 13 October 1987 is the "same cause of action" as the one he instituted pursuant to § 8-401 of the Real Property Article on 21 September 1987.

n2 More recently, we have considered certain aspects of the res judicata doctrine in Cassidy v. Board of Education, 316 Md. 50, 557 A.2d 227 (1989), and Murray International v. Graham, 315 Md. 543, 555 A.2d 502 (1989).

   A.

   In Bilbrough, Judge Rodowsky, writing for the Court, discussed at length the test to be used in determining whether two claims are the same cause of action. We approved of the "transaction" approach found in § 24 of the Restatement (Second) of Judgments (1982). n3£ 309 Md. at 499, 525 A.2d at 238. Section 24 explains:
 
[*55] (1) When a valid and final judgment rendered in an action extinguishes the plaintiff's claim pursuant to the rules of merger or bar (see §§ 18, 19), the [***7] claim extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. 
  
(2) 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.

n3 This result was reached because of our concern that the test used previously -- the same evidence test -- "may improperly narrow the scope of a 'claim' in the preclusion context."£ Kent County Bd. of Educ. v. Bilbrough, 309 Md. 487, 494, 525 A.2d 232, 236 (1987).

   This approach is proper when "'parties have ample procedural means for fully developing the entire transaction in the one [***8] action. . . .'"£ Bilbrough, 309 Md. at 499, 525 A.2d at 238 (quoting Restatement (Second) of Judgments § 24, comment a).  As a result of our decision in Bilbrough, "'[t]he law of res judicata now reflects the expectation that parties who are given the capacity to present their "entire controversies" shall in fact do so.'"£ Id.

   B.

   We apply the factors listed in § 24(2) to the instant case.  At the core of both this action and the earlier one is the lease. This contract to a large extent determines the rights and duties of both parties.  Breaches of the lease by the Tenant -- failure to pay rent and failure to perform other covenants of the lease n4 -- gave rise to both actions.  [**711] Certainly [*56] then, the "facts are related in time, space, [and] origin."£ Also, the two actions could easily form a convenient trial unit because they both arise from the same contract.  This conclusion is consistent with our prior holdings in cases involving two claims arising out of a single contract.

n4 In pertinent part, the lease provided:
 
THE SAID TENANT AGREES:

   1. To pay promptly the rent as herein provided without any deduction whatsoever and to pay the rent when due.  If the rent is paid more than 5 calendar days late, Tenant will pay as additional rent a sum equal to 5% of the amount of delinquent rent due. . . .

   * * *

   7. At the end of said term, or any renewal thereof, to surrender said premises to said Owner in as good condition as when received, except for any damage caused by ordinary wear and use thereof; and Tenant further agrees to surrender said premises free and clear of all furniture and debris and to return all keys to the leased premises to the Owner.

   * * *
 
IT IS FURTHER AGREED BY THE PARTIES HERETO:

   * * *

   2. Except as may be hereinafter provided, Tenant agrees to pay for all repairs and renovations to the leased premises during the term hereof and any renewal thereof.  Owner shall maintain and keep in repair the roof and exterior walls of the leased premises.  The replacement of any cracked or broken windows or other glass shall be the responsibility of Tenant. Any sum payable hereunder by Tenant shall be due and collectible as additional rent for the leased premises.

   * * *

   5. Additional provisions, if any, are as follows: ___

   Tenant is to maintain well and water. Lawn is to be kept at two inch max. height.  -- include raking of dead grass.

[***9]

   For example, in Rosenstein v. Hynson, 157 Md. 626, 147 A. 529 (1929), the plaintiff sued and received a judgment against the defendant for a portion of an amount owed under a contract for the sale of a piano.  The plaintiff then brought a replevin action to recover the piano because of the remaining unpaid installments.  The Court held that

   In suing for a part only of the installments in arrears, when he was entitled to sue for all, the plaintiff disregarded the sound and settled rule that a fully accrued cause of action for the breach of a single contract must not be subdivided for the purposes of separate suits against the same party.  The object of the rule is to protect a defendant from the vexations and burdens incident [*57] to a duplication or multiplication of actions to enforce a liability for which one suit would be sufficient.  The consequence of a violation of the rule is that a judgment recovered for part of the accrued indebtedness sued for separately may be pleaded to a suit for the residue of the claim, which is treated as being merged in the recovery procured in the first litigation.
 
157 Md. at 628, 147 A. at 529. [***10]

   In Olmstead v. Bach, 78 Md. 132, 27 A. 501 (1893), an employee entered into an employment contract to work for one year and receive a weekly salary for his services.  Two months into the term, the employer refused to allow the employee to work, thus breaching the contract.  Nine days after the breach, the employee sued for one week's pay and received a judgment for that amount.  The employee then instituted a second action for the balance of the wages due under the contract.

   The Court noted that the contract was indivisible, and that the parties expected the contractual relationship to continue unbroken for one year, rather than to be a weekly or at-will arrangement.  78 Md. at 144, 27 A. at 503. Thus, it was held that the employee should have maintained one action for the breach of the contract -- the second action on the contract was barred.  Id. at 151, 27 A. at 505. Other cases hold similarly.  See, e.g., Mildred Davis, Inc. v. Hopkins, 224 Md. 626, 169 A.2d 450 (1961) (sale of goods); Ex Parte Carlin, 212 Md. 526, 129 A.2d 827 (1957) [***11] (second suit for fees from legal services rendered to estate barred); Dugan v. Anderson, 36 Md. 567 (1872) (employment contract); see also Dill v. Avery, 305 Md. 206, 502 A.2d 1051 (1986) (res judicata bars plaintiff from splitting tort action); Frontier Van Lines v. Maryland B. & Tr. Co., 274 Md. 621, 336 A.2d 778 (1975) (res judicata bars plaintiff from splitting action against bank for breach of duty).

   Under the principles stated in Bilbrough, then, claim preclusion would seem to bar Landlord's second action against Tenant for at least two reasons: first, if treatment of all the claims as a unit conformed to the parties' expectations [*58] or business usage; and second, if the initial District Court action allowed Landlord a "procedural means for developing the entire transaction."£ We turn to the question of "procedural means."

   C.

   Included within the jurisdiction granted the District Court is "exclusive original civil jurisdiction in . . . [a]n action involving landlord and tenant, . . . regardless of the amount involved. . . ."£ Md.Code (1984 Repl.Vol.), Cts. & Jud.Proc. Art., § 4-401(4).  [***12] In Greenbelt Consumer v. Acme Mkts., 272 Md. 222, 230, 322 A.2d 521, 526 (1974), we held that a summary ejectment proceeding brought pursuant to § 8-401 of the Real Property Article is one of the landlord and tenant actions contemplated [**712] by § 4-401(4) of the Courts Article.  That is what Landlord's first action was, and as such, it was within the exclusive original jurisdiction of the District Court. n5

n5 The aggregate amount involved in both cases brought by Landlord was less than $10,000, and thus was within the general monetary limit of District Court civil jurisdiction.  Courts Article, § 4-401(1).  Therefore, we are not faced with any problem that might have arisen if one (or the aggregate) of those claims had exceeded that limit.  See Greenbelt Consumer v. Acme Mkts., 272 Md. 222, 322 A.2d 521 (1974); see generally 1 G. Liebmann, Maryland Practice: District Court Law and Practice § 96 (1976).  We note, however, that our decision in Greenbelt Consumer did not address a case brought pursuant to § 8-401 of the Real Property Article, where rent in excess of $10,000 was requested, in addition to repossession of premises.  Greenbelt Consumer involved an action for rent only, with the amount of $12,000 being claimed in the District Court.  272 Md. at 223, 322 A.2d at 522.

[***13]
 
   As we have pointed out, Landlord included in his summary ejectment case both a demand for repossession of the premises and a claim for one month's rent. Section 8-401(c)(2) authorizes the District Court, if it finds any rent actually due and unpaid, to "enter a judgment in favor of the landlord for possession of the premises" and to "give judgment in favor of the landlord for the amount of rent determined to be due" if the landlord made sufficient service [*59] on the tenant. See generally University Plaza v. Garcia, 279 Md. 61, 367 A.2d 957 (1977); D. Bregman & G. Everngam, Maryland Landlord-Tenant Law, Practice and Procedure ch. 9 (1983) (hereinafter Bregman); 2 G. Liebmann, Maryland Practice: District Court Law and Practice § 786 (1976).  The problem here is whether Landlord's second claim -- the claim for contract damages -- properly could be joined with the summary ejectment case.

   We explained in Greenbelt Consumer that summary ejectment is one of several "possessory in rem or quasi in rem actions that provide[] a means by which a landlord [may] rapidly and inexpensively obtain repossession of his premises . . . ."£ 272 Md. at 229, 322 A.2d at 525. [***14] Because the relief available in a summary ejectment action is limited to a judgment for repossession of premises and rent actually due, Landlord could not have joined a claim for general contract damages claim in that proceeding.

   Statutory procedures for summary ejectment, such as § 8-401 of the Real Property Article, were enacted as alternatives to the common law action of ejectment in order to allow landlords expedited means of regaining possession of leased premises.  The common law action of ejectment was expensive and often "fraught with procedural complexities and delays."£ R. Schoshinski, American Law of Landlord and Tenant § 6:10, at 409 (1980) (hereinafter Schoshinski).  In discussing an Oregon statute, the Supreme Court, in Lindsey v. Normet, 405 U.S. 56, 73, 92 S.Ct. 862, 874, 31 L.Ed.2d 36, 50 (1972), noted that "[s]peedy adjudication is desirable to prevent subjecting the landlord to undeserved economic loss and the tenant to unmerited harassment and dispossession" that might occur in a common law ejectment action.  See also Pernell v. Southall Realty, 416 U.S. 363, 369-376, 94 S.Ct. 1723, 1726-1730, 40 L.Ed.2d 198, 205-209 (1974) [***15] (discussing District of Columbia statute); Velazquez v. Thompson, 451 F.2d 202, 204 (2d Cir.1971) (discussing New York statute); Prevedini v. Mobil Oil Corp., 164 Conn. 287, 292, 320 A.2d 797, 800 (1973); see [*60] generally 2 R. Powell, The Law of Real Property para. 246[3] (rev.1988); Schoshinski, §§ 6:10-6:20.

   To accomplish the objective of speedy adjudication, our General Assembly, like legislatures in other states, limited a summary ejectment action to repossession of premises and rent actually due.  The determination of the amount of rent due is often (although not always) a relatively straightforward calculation, and its recovery is not inconsistent with simple and speedy adjudication.  It would be contrary to the purpose of the summary ejectment statutory scheme to allow recovery of general contract damages, with possible complexities of proof, in a summary ejectment action.

   Because of the limited scope of § 8-401, it may well be that neither the parties' expectations nor business usage would support treating as a unit both rent and other [**713] contract claims arising out of the lease. Obviously, moreover, § 8-401 would [***16] not afford "ample procedural means for fully developing the entire transaction."£ The parties are not given the capacity to present their "entire controversies" in the summary ejectment case.  Therefore, there ordinarily would be no claim preclusion as to the second action.

   The general rule against splitting causes of action
 
does not apply to extinguish the claim, and part or all of the claim subsists as a possible basis for a second action by the plaintiff against the defendant [if]:

   * * *

   (d) The judgment in the first action was plainly inconsistent with the fair and equitable implementation of a statutory . . . scheme, or it is the sense of the scheme that the plaintiff should be permitted to split his claim. . . .
 
Restatement (Second) of Judgments, § 26(1). n6£ See also 650 Park Ave. Corp. v. McRae, 665 F.Supp. 228, 232-233, 233 n. [*61] 2 (S.D.N.Y.1987); cf. Jackson v. United States Postal Serv., 799 F.2d 1018, reh'g denied, 803 F.2d 717 (5th Cir. 1986) (Restatement (Second) of Judgments § 26(1)(d) does not apply because federal district court had jurisdiction to enter judgment for rent in first action). [***17] n7

n6 Although based on a statutory hypothesis that is inconsistent with Maryland statute and case law, Illustration 5 explaining the application of § 26(1)(d) furnishes a helpful example:

   For nonpayment of rent, landlord A brings a summary action to dispossess tenant B from leased premises.  A succeeds in the action.  A then brings an action for payment of the past due rent. The action is not precluded if, for example, the statutory system discloses a purpose to give the landlord a choice between, on the one hand, an action with expedited procedure to reclaim possession which does not preclude and may be followed by a regular action for rent, and, on the other hand, a regular action combining the two demands.
n7 Tenant argues, nevertheless, that Landlord, having chosen to sue in a court of limited jurisdiction, cannot bring another claim arising from the same transaction.  See Restatement (Second) of Judgments § 24, comment g.  For reasons we have stated, we disagree.  Moreover, comment g speaks of actions "voluntarily" brought in a court of limited jurisdiction.  To obtain the benefit of § 8-401's expedited procedure, Landlord had to bring his summary ejectment action in District Court.  That filing might not be considered "voluntary" for purposes of the comment.

[***18]

   But what if, as Tenant argues, the contract damages were to be treated as rent under the lease involved in this case?

    D.

   Under the lease, Tenant agreed "to pay for all repairs and renovations to the leased premises during the term hereof" and it was further agreed that "[a]ny sum payable . . . by Tenant [under the provision just quoted] shall be due and collectible as additional rent for the leased premises" [emphasis added].  See note 4, supra.

   There are cases holding that rent, for purposes of summary remedies, may be defined to include readily ascertainable items such as taxes and water charges. See, e.g., Irving Trust Co. v. Burke, 65 F.2d 730 (4th Cir.1933) (applying Maryland law to a commercial lease).  Other authorities go further and indicate that rent may be defined to be whatever the parties intend it to be.  M.E. Blatt Co. v. [*62] United States, 305 U.S. 267, 277, 59 S.Ct. 186, 189, 83 L.Ed. 167, 170 (1938). See also, e.g., Chicago Hous. Auth. v. Bild, 346 Ill.App. 272, 104 N.E.2d 666 (1952) (in forcible entry and detainer proceeding, rent, as defined in residential [***19] lease, included such items as cost of electricity and heat); Fargo Realty, Inc. v. Harris, 173 N.J.Super. 262, 414 A.2d 256 (1980) (in summary dispossession proceeding, rent, as defined in residential lease, included cost of repairing tenant-inflicted damage); Knepper v. Rothbaum, 104 Misc. 554, 172 N.Y.S. 109 (N.Y.Sup.Ct.1918) (same); In re Carol Janet, Inc., 49 B.R. 847 (Bankr.E.D.Wis.1985) (cost of leasehold improvements were rent under commercial lease providing that all sums payable under lease by tenant to landlord were rent).  On the other hand, there is support for the proposition that "what constitutes rent is a question of law and not of intention."£ 3 H. Tiffany, The Law of Real [**714] Property § 879 at 531 (B. James, 3d ed. 1939).

   To the extent this Court has addressed the issue, it has adopted an intermediate position.  In University Plaza v. Garcia, 279 Md. at 67, 367 A.2d at 961, we decided that at least under some circumstances the parties' intention could determine what was rent:
 
We think that it is consistent with the rationale of our prior opinions [***20]. . . that between a landlord and a tenant, insofar as their respective rights and obligations are concerned in their relationship each with the other, charges which may be definitely ascertained, paid by the tenant, and going to his use, possession and enjoyment of rental commercial premises, are rent if such was the intention of the parties. n[8]
 
We limited that holding, however, "to premises leased for commercial purposes as distinguished from residential [*63] use[,]" expressly leaving open, for determination on a case-by-case basis, "the question whether similar charges under a lease of residential property would be rent."£ Id. at 67, 367 A.2d at 961. n9£ The question we left open in Garcia is one we need not address today. We have before us a lease that has been treated as one for commercial purposes.

n8 See also Theatrical Corp. v. Trust Co., 157 Md. 602, 146 A. 805 (1929) (under commercial lease, taxes payable by tenant, water charges, and insurance premiums treated as rent) and Feldmeyer v. Werntz, 119 Md. 285, 86 A. 986 (1963) (under commercial lease, taxes payable by tenant treated as equivalent to rent).

[***21] 

n9 "The primary significance in classifying various monetary obligations as rent is to give the landlord the benefit of special landlord remedies in the event of default, such as summary dispossession of the tenant. . . ."£ R. Schoshinski, American Law of Landlord and Tenant § 5:35 at 338 (1980).  In University Plaza v. Garcia, 279 Md. 61, 67, 367 A.2d 957, 961 (1977), we expressed some concern about undue use of this advantage when we explained why we limited that holding to commercial leases: "[I]n the negotiation of a lease of premises to be used for a commercial enterprise there is little likelihood of successful overreaching on the part of the landlord and of coerced adhesion on the part of the tenant, so that the final agreement would fairly represent the actual intention of the parties."£ Aside from this sort of problem, there may be other policies that would not allow free rein in the definition of rent to the parties to a residential lease. For example, § 8-211(e) of the Real Property Article imposes "an obligation upon landlords to repair and eliminate conditions and defects which constitute, or if not promptly corrected will constitute, a fire hazard or a serious and substantial threat to the life, health or safety of occupants."£ It is doubtful that a residential lease could characterize as "rent" the cost of repairing or eliminating such a condition or defect (other than one caused by the tenant), thereby shifting the burden of correcting it from landlord to tenant.

[***22]

   To be sure, the lease purports to be for residential premises.  Among other things, it is on a printed form captioned "Standard Dwelling Lease."£ And it prohibits Tenant from using the premises or any portion of the premises "for any purpose other than as an orderly private residence. . . ."£ Initially, Tenant used the property essentially as a business office, not as a residence.  Later, it was used as a dormitory for up to eight or nine of the Tenant's restaurant employees -- a fact known to Landlord or his representatives.  The District Court, in the second action, found that the lease "was not written for the average little suburban family but it was written for another businessman."£ This was at least an implicit finding of the de facto commercial nature of the lease and that finding is not questioned on this appeal, nor [*64] was it questioned below. n10

n10 The question of whether § 8-211 of the Real Property Article, note 8, supra, might nevertheless apply because the property was "leased for the purpose of human habitation," § 8-211(c), is not before us.  Neither is the question of whether this lease was a residential one for any of the purposes of subtitle 2, Title 8, Real Property Article.

[***23]

   For purposes of Garcia analysis, then, we have a commercial lease. Under that case's test, costs defined as rent may be treated as such if they are reasonably ascertainable and if they were incurred for Tenant's "use, possession and enjoyment" of the premises.  279 Md. at 66, 367 A.2d at 960. That phrase means "work . . . performed on Tenant's behalf, . . . to adapt the premises to the use permitted by the lease."£ Id. at 68, 367 A.2d at 961.

   [**715] At first blush, the cost of drilling the new well seems to fit this test.  The new artesian well was needed to supply water to Tenant's eight or nine employees; the old "dug" well was insufficient for that purpose.  Tenant complained about the insufficiency, and Landlord, aware of the dormitory use of the premises, had the new one drilled.  Clearly, the well was for Tenant's "use, possession and enjoyment" of the premises, and its cost was reasonably ascertainable.  Its cost appears much like the costs that were treated as rent in Garcia -- capital improvements to a store building, done at the tenant's behest, to make the structure suitable for tenant's purposes.  But there [***24]is a distinction between that case and this.

   The lease in Garcia explicitly required the landlord to construct the leased premises for tenant's use and occupancy, in accordance with certain architectural plans and specifications.  Some of the work was to be done "on the Tenant's behalf;" for which Tenant was to pay, and its costs were to be treated as additional rent. 279 Md. at 63-64, 367 A.2d at 958-959. But here what is to be treated as additional rent is not so specifically identified.  Rather, it is defined by the general language "repairs and renovations to the leased premises during" the term of the lease.

   [*65] The well, it is true, was installed during the term of the lease. But we find ourselves unable to fit the drilling of an entirely new well, at a different location from and of a different capacity than the old one, within the phrase "repairs and renovations."

   At common law a tenant had a duty to keep the leased premises in repair. This obligated the tenant "to make ordinary repairs as distinguished from structural repairs or changes."£ Schoshinski § 5.20 at 278; 1 H. Tiffany, The Law of Landlord and Tenant § 113 at 745 (1910) [***25] (hereinafter Tiffany).  The duty has been interpreted as demanding no more than that the tenant keep the premises "windtight and watertight."£ Katz v. Williams, 239 Md. 355, 360, 211 A.2d 723, 726 (1965); Tiffany, § 113 at 747.  The common law duty may be modified by specific undertakings in a lease, but a covenant like the one here, involving "repairs and renovations," requires the tenant to do no more than that demanded by the common law duty.  Middlekauff v. Smith, 1 Md. 329, 339-340 (1851). Whether the contractual duty to surrender the premises in good condition, except for reasonable wear and tear, demands more or less than a covenant to repair, the former surely does not require installation of a wholly new well.  Clark & Stevens v. Gerke, 104 Md. 504, 65 A. 326 (1906); see Bregman, Ch. 2 at 23.  Under the lease before us in this case, Tenant had no obligation to install a completely new well.  Since the installation of the artesian well was not included within Tenant's covenant respecting "repairs and renovations," the cost of that work could not be treated as additional rent within the [***26]lease's definition.  As a consequence, Landlord could not have included that claim in the summary ejectment action; the claim is not barred by res judicata. n11

 n11 On the other hand, Landlord could not have properly asserted this claim in the second or contract action. Whether Landlord had a duty to drill the artesian well we need not decide.  The fact is, aware of the water problem at the premises, and of the dormitory use that caused it; aware that Tenant might not renew the lease unless the lack of water was corrected; Landlord elected to drill the artesian well.  He neither insisted that Tenant limit occupancy of the property in accordance with the terms of the lease nor did he, so far as the record discloses, extract from Tenant any agreement as to payment for the new well.  Landlord undertook to make a substantial improvement to the property, one for which Tenant was not required to pay either by virtue of common law or under the terms of the lease. Under those circumstances, Tenant cannot be held liable for the costs.  The same is true with respect to the water conditioning system. Although it was installed after Tenant had left the premises, the record makes clear that it was made necessary by the new well and was an integral part of the water supply system.  Indeed, it is possible that the District Court rejected these claims on the ground that they were capital improvements -- a defense raised by Tenant in that court.

[***27]

   [*66] There are other items claimed by Landlord that are equally clearly not barred by res judicata. Some of the [**716] charges for grass cutting, although incurred during the term of the lease, were expressly made Tenant's obligation, but not characterized by the lease as additional rent. Whatever scope the parties may have to define certain items as rent, this item was not so defined.  Since it cannot be treated as rent, it could not have been asserted in the summary ejectment proceeding.  As a consequence, it is not barred by res judicata.

   On the other hand, the charges for septic tank maintenance fall within the "repairs and renovations" clause.  Some of them were made within the term of the lease, were for Tenant's use and enjoyment, and are deemed additional rental. These would be barred by claim preclusion. n12£ Unfortunately, the record does not enable us to separate septic tank repairs made during the term of the lease from those made thereafter.  This is a factual determination that the District Court must make (with, if necessary, additional testimony) on the remand we shall order.  This determination will disclose what portion of the septic tank charges is barred by [***28] claim preclusion.

n12 We reiterate that we do not have before us the extent to which § 8-211 of the Real Property Article might prevent a landlord from treating costs of septic tank maintenance as additional rent.

   Finally, it appears that much of the amount claimed by Landlord in the instant action was for work required to [*67] remedy Tenant's failure to surrender the premises in good order, reasonable wear and tear excepted.  This work, even though some of it seems to have been begun before Tenant left the premises, was mostly undertaken thereafter.  If Landlord's testimony is to be credited, none of the work was designed to enhance Tenant's use and enjoyment of the premises, but rather to put the property in proper shape for reletting. This work was not "repairs and renovations to the leased premises during the term" of the lease and does not qualify as additional rental.  The claim for it, like the claim for septic tank work done after Tenant's departure, is not barred by res judicata.

   II.

   We now address Tenant's [***29] second question.  It concerns whether the Circuit Court for Anne Arundel County erred in remanding the case to the District Court for a new trial. We believe that the circuit court was correct in remanding the case, but not for a new trial.

   In the circuit court Tenant argued that Landlord's evidence as to damages was in some instances simply insufficient; that is, it did not prove the elements required to demonstrate the proper measure of damages.  He repeats this argument here.  The circuit court could not respond to it in any meaningful way because it was impossible to tell from the record for what claims the District Court had awarded damages.  That court simply entered a lump sum judgment for some $3,000 less than the total amount sought by Landlord. We are faced with the same inadequacy of record. n13

n13 Landlord filed no brief in this Court, so we are without the benefit of his views on these matters.

   We sympathize with the circuit court's frustrations.  As an appellate court hearing an appeal on the record, [***30] it should not have to sort through the evidence and engage in speculation as to which claims the District Court had allowed in whole or in part, and why it had done so, especially since [*68] some of the District Court's determinations may have been based on witness credibility.  We should not have to do so either.  See Spessard v. Spessard, 64 Md.App. 83, 89-90, 494 A.2d 701, 704-705 (1985) (remand for clarification of trial court's factual determination); see also Real Estate Central v. Kramer, 254 Md. 290, 293, 255 A.2d 81, 83 (1969) (due regard must be given to trial judge's opportunity to judge credibility of witnesses); Hale v. Hale, 74 Md.App. 555, 569, 539 A.2d 247, 254, cert. denied, 313 Md. 30, 542 A.2d 857 (1988) (same).  But this does not mean that the circuit court should have ordered a full new trial, which would permit Landlord to [**717] make up any insufficiency of proof at the first trial.

   Landlord has had one full and fair opportunity to prove the measure of the damages he claimed in the second action; he complains of no error below, and under [***31] the circumstances of this case, he is not entitled to another opportunity.  The circuit court should have remanded under Md. Rule 1370 b, with directions to the District Court to review the evidence before it and to make specific findings of fact to support any damages it awards. n14

n14 In order to facilitate proper appellate review in cases involving many elements of damage, it would be appropriate for a trial court to itemize its award, setting forth each item for which an award is given, and the value assigned that item by the court.

   III.

   For the reasons we have stated, we reverse the judgment of the Circuit Court for Anne Arundel County.  This case must be returned to the District Court for further proceedings.  In the course of those proceedings, the District Court is to exclude from its computation of damages any amounts sought for installation of the well and for the water conditioning system.  Tenant is not liable for those claims, as we point out in Part I.D. of this opinion.  To the extent that the District [***32] Court finds (after taking additional testimony, if necessary, on the limited issue) that any part of the amount [*69] claimed for septic tank work qualifies as "rent" under the criteria we have explained in Part I.D., that part of the claim is barred by res judicata.

   As to the remaining claims, the District Court is to 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 judgment for Landlord for any sum so supported.

   JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED WITH DIRECTIONS TO REMAND, WITHOUT AFFIRMANCE OR REVERSAL, TO THE DISTRICT COURT OF MARYLAND SITTING IN ANNE ARUNDEL COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  COSTS TO BE PAID BY RESPONDENT. 

Sandra S. CARRIER v. CRESTAR BANK, N.A., et al. 
No. 122, September Term, 1988
 
Court of Appeals of Maryland
 
316 Md. 700; 561 A.2d 227; 1989 Md. LEXIS 115

 July  28, 1989

   PRIOR HISTORY: [***1]  
Appeal from the Orphan's Court for  Anne Arundel  County pursuant to certiorari to Court of Special Appeals, Marie Angel Durner, William H. Barber, Cassandra H. Kabler, Judge.

DISPOSITION: ORDER OF THE ORPHANS' COURT FOR ANNE ARUNDEL COUNTY VACATED; CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION; COSTS TO BE PAID BY APPELLEES.

CORE TERMS:  orphans', legatee, interested person, residuary trust, personal representative, codicil, notice, inventory, corpus, distributee, remainder, construe, bequest, right to object, subtrust, distributed, beneficiary, decedent, executor, future interest, demand note, administrator, heir, testamentary trust, standing to object, net income, common law, remainderman, collateral, mortgages

COUNSEL: John L. Wood (Niles, Barton & Wilmer, both of Baltimore, Maryland, Neil S. Kurlander, Blumenthal, Wayson, Downs & Offutt, P.A. Annapolis, Maryland), all on brief, for appellant.

   Nicholas D. Ward (Noterman & Ward, Washington, District of Columbia), William L. Farrar, Jr. (H. George Schweitzer, Alagia, Day, Marshall, Mintmire & Chauvin, Washington, District of Columbia), Nancy K. Glassman, Washington, District of Columbia, William A. Franch, Franch & Jarashow, P.A., Annapolis, Maryland, all on brief, for appellee.

JUDGES: Murphy, C.J., and Eldridge, Cole, Rodowsky, McAuliffe, Adkins and Blackwell, JJ.

OPINIONBY: MURPHY

OPINION: [*703] [**229] Maryland Code (1974, 1988 Cum.Supp.) § 7-501(a) of the Estates and Trusts Article provides that unless waived by the orphans' court for good cause shown, the personal representative for an estate "shall give written notice to all interested [***2] persons of the filing of an account with the court."£ Section 7-501(b) provides that "[e]xceptions to an [*704]account must be filed with the register [of wills] within 20 days of the approval of the account by the court." n1£ Similarly, § 9-104(e) provides that "[a]fter the probable charges against the estate are known, the personal representative may mail or deliver a proposal for distribution to all persons who have a right to object to [**230] the proposed distribution" and that "the right of a distributee to object to the proposed distribution terminates if he fails to object in writing received by the personal representative within 30 days after mailing or delivery of the proposal."£ In this case, we consider whether under these statutes an individual who is both a beneficiary of a testamentary trust per autre vie (during the life of another person) and a remainderman of the corpus of that trust has standing to object to the account and the proposed schedule of distribution filed by the personal representatives. 

n1 Unless otherwise indicated, all section references are to the Estates and Trusts Article of the Code.

[***3]

   I.

   Victor O. Schinnerer, a resident of Anne Arundel County, died on October 18, 1985.  He was survived by his widow, Muriel J. Schinnerer, his children, William R. Schinnerer, Sally S. Fant, and the appellant, Sandra S. Carrier, and by his grandchildren, Jeffrey R. Schinnerer, Kimberly A. Schinnerer, Thomas D. Fant, Jr., Terrence V. Fant, and John J. Younger, Jr.  Prior to his death, Victor executed a Last Will and Testament, dated October 8, 1982, a first codicil dated April 5, 1984, a second codicil dated August 17, 1984, and a third codicil dated March 8, 1985.

   In his will, Victor provided for the division of his property between his wife, his three children, and his five grandchildren.  He bequeathed all of his personal property, including household goods, automobiles and watercraft to his wife, Muriel.  In the succeeding paragraphs, Victor provided for the disposition of the remainder of his estate.  In Item 3, he discharged all first or second mortgages, deed of trust [*705] notes, and promissory notes, which were secured by mortgages or deeds of trust, owed to him by any of his children, noting that at the time of the will's execution, he had made such loans to William and [***4] Sally.  Victor also directed the Personal Representatives to forgive any future loans made to his children which were secured by mortgages. In addition, he discharged the indebtedness of William and his wife, Marguerite, under an unsecured demand note in the original amount of $75,000 dated August 17, 1982.

   Item 4 of the Will established a "Marital Trust" for the benefit of Muriel Schinnerer.  Victor directed the Personal Representatives to fund the trust by setting aside out of Victor's estate "property equal in value to the maximum marital deduction allowable in the determination of the Federal estate tax upon my estate."£ The Will directed the Trustees for the Marital Trust to pay the net income from the trust to Muriel quarterly during her life and to pay her part or all of the principal, upon receiving a written request from her.  Muriel also received a testamentary power of appointment over the residue of the income and principal, and the Will provided that if Muriel should fail to exercise this power then the residue of the Marital Trust should be paid to the Residuary Trust created in the succeeding paragraphs.

   In Item 5 of the Will, Victor provided that the remainder of [***5] his property be distributed to a trust fund, designated as the "Residuary Trust."£ He directed the Trustees to pay the net income from this trust quarterly to his three children in varying percentages.  Specifically, Sally Fant would receive thirty percent of the net income, Sandra Carrier would receive twenty percent of the net income, and William Schinnerer would receive fifty percent of the net income. Item 5 also provided that upon Muriel's death, "the Trustees shall allocate and distribute the Residuary Trust as then constituted in the manner as hereinafter set forth:"

   A. DISTRIBUTION OF SIXTY PERCENT (60%)

   My Trustees shall allocate sixty percent (60%) of the principal and undistributed income of the Residuary Trust [*706] and I direct that they pay over such part or portion as follows:

   (a) Forty-five percent (45%) thereof unto my son, WILLIAM REID SCHINNERER, if he survives me, free of trust . . . .

   (b) Thirty-Five percent (35%) thereof unto my daughter, SALLY SCHINNERER FANT, if she survives me, free of trust . . . .

   [**231] (c) The remaining twenty percent (20%) thereof unto my daughter, SANDRA SCHINNERER CARRIER, if she survives me, free of trust . . . .

   The second part of [***6] Item 5, entitled "B. Distribution to Subtrusts," directed the Personal Representatives to divide the remaining forty percent of the corpus among three subtrusts. Forty-five percent of the forty percent of the corpus was to be held in trust for the benefit of Jeffrey and Kimberly Schinnerer, until the death of William Schinnerer, or when either of these two grandchildren reached their thirtieth birthday, at which time the corpus was to be distributed to them.  Forty percent of the original forty percent of the corpus was distributed to a similar subtrust for the benefit of Thomas Fant, Jr. and Terrence Fant, and fifteen percent of the original forty percent was distributed to a subtrust for the benefit of John Younger, Jr.

   Item 8 of the Will sets forth the powers of the Trustees, authorizing them "to retain, invest, reinvest and exchange the funds in the Trust Estates in such manner and in such . . . property of any nature, whether real or personal, as the Trustees may from time to time see fit in the exercise of their best judgment."£ And that "[f]or the purpose of dividing said Trust into separate subtrusts or dividing any subtrust into parts or shares, my Trustees shall not be required [***7] to convert any property into money but may allow or allot to any part or share or subtrust any property of the trust or undivided interest therein and the judgment and decisions of my Trustees shall be conclusive and binding upon the beneficiaries of said trust, subtrust, part or share."

   [*707] Finally, in Item 12 of the Will, the decedent designated Muriel Schinnerer and National Savings and Trust Company of Washington, D.C., now known as Crestar Bank, N.A., as Personal Representatives of the estate and as Trustees under the Will.  This section also gave the Personal Representatives "full power and discretion in the management and control" of the estate.

   In April 1984, Victor executed a first codicil to his Will, adding an additional paragraph to Item 8 of the Will.  It provided:
 
I have guaranteed certain loans of my son, William Reid Schinnerer, and his wife, Marguerite R. Schinnerer, from NS & T Bank, N.A. and in connection therewith I have executed a Hypothecation Agreement to that lender covering United States Government Bonds and other securities having a value in excess of $600,000.00.  Notwithstanding anything to the contrary contained elsewhere in this Last Will [***8] and Testament I hereby direct that my Personal Representatives deduct and reduce from any gift, devise or bequest to my son or in trust for his benefit or the benefit of his children, the total amount of all claims, charges, judgments or demands hereafter called upon me or my estate to pay resulting from my aforesaid guarantee or pledge of assets.  If those United States Government Bonds and other securities or any substituted properties are not returned to me prior to my death free of such pledge or Hypothecation Agreement, then my Personal Representatives shall reduce those gifts, devises, bequests or other benefits described above by the amount of such assets not returned.
All decisions and computations of any deductions made by my Personal Representatives and their decisions in connection therewith shall be conclusive and binding upon all beneficiaries under this Will.

   Victor subsequently executed two other codicils. The second codicil dated August 17, 1984 added an additional paragraph at the end of Item 2 of the Will. In this paragraph, Victor devised a townhouse on Brandywine [*708] Street in Philadelphia, Pennsylvania, to his daughter, Sally Fant, and ordered the Personal [***9] Representatives to satisfy and fully discharge all mortgages or similar encumbrances which might be attached to the property at his death. In the third codicil dated March 8, 1985, Victor ordered that that part of his will devising the townhouse in Philadelphia to Sally be deleted from Item 2. Instead, Victor devised a condominium in Ocean City, New [**232] Jersey to Sally with the same provision for the satisfaction of any mortgages remaining on the property at the time of his death.

   At the time of Victor's death on October 18, 1985, William and Marguerite Schinnerer had not repaid the loans owed NS & T Bank which were guaranteed by the Hypothecation Agreement, nor had they returned the pledged collateral to Victor free of this encumbrance.

   Following Victor's death, the Personal Representatives petitioned for probate of Victor's Will and the three codicils. Accompanying the petition was a "List of All Interested Persons," which included Muriel J. Schinnerer, William Reid Schinnerer, Sally Schinnerer Fant, Sandra Schinnerer Carrier, and NS & T Bank, N.A. as interested parties.  The will and the three codicils were admitted to probate in the Orphans' Court for Anne Arundel County on October [***10] 29, 1985.

   The Personal Representatives filed the initial Inventory for the Estate on February 26, 1986, reporting $1,210,435.19 in assets; among the listed assets were the government bonds which Victor had pledged as security against William and Marguerite's loan.  In the inventory, the Personal Representatives noted that the bonds were "held in NS & T Bank Investment Management Account 35081721: pledged as collateral."£ The inventory also listed two notes of William and Marguerite payable to Victor in the amounts of $37,500.00 and $75,000.00.  The first figure of $37,500 represented the balance remaining on the original loan of $75,000 made by Victor to William and Marguerite under the unsecured demand note dated August 17, 1982, and mentioned in Item 3 of Victor's will.  The second figure of [*709] $75,000 represented the balance remaining under an unsecured demand note originally in the amount of $100,000, which according to the inventory, was issued to "NS & T Bank and William R. Schinnerer, Trustees, Under Agreement dated June 20, 1983, makers."£ This unsecured demand note appears to have been issued subsequent to the execution of the Will and thus is not mentioned therein.  [***11] The inventory entry on the first note bore the notation "discharged per terms of Will."£ The inventory entry on the second note did not bear this notation.  The inventory also listed a Deed of Trust dated July 26, 1978 in the amount of $85,000.00 due to be paid by William and Marguerite Schinnerer by July 26, 2008.  This item also bore the notation "discharged per terms of Will."£ The Personal Representatives sent a copy of the inventory to Sandra Carrier on February 28, 1986.

   In May 1986, William and Marguerite Schinnerer repaid the loans owed to NS & T Bank, and the collateral securing these loans was released from the pledge.

   On December 4, 1986, the Personal Representatives filed the First Administration Account for the estate; they filed the Proposed Schedule of Distribution on July 9, 1987.  Upon filing each of these documents, the Personal Representatives sent notice to Carrier, indicating that the account and the schedule of distribution had been filed and informing her that she could file objections to either one.

   Carrier subsequently filed Exceptions to the First Administration Account, Exceptions to the Inventory and Proposed Schedule of Distribution, and a Request for Hearing [***12] on her Exceptions.  In her Exceptions to the First Administration Account, Carrier objected to several items contained in the inventory and administration account, including the Personal Representatives' reduction of the value of the second unsecured demand note from the original value of $100,000 to $75,000 and their reduction of the total value of Victor's stocks and bonds.  She maintained that these reductions would result in an incorrect valuation of Victor's estate which would cause "a distribution not in keeping [*710] with the terms of the decedent's Last Will and Testament as amended by the aforesaid Codicils."£ Carrier's Exceptions to the Inventory and Proposed Schedule of Distribution disputed the Personal Representatives' allocation of the income earned during the administration period and the appreciation of estate assets to the Residuary Trust. She averred that the Personal Representatives [**233] should distribute the unsecured demand note to the Residuary Trust and not the Marital Trust, that they had failed to adequately document the administration expenses, and that they should distribute a specific asset (the so-called Safeway lease) to the Residuary Trust and not the [***13] Marital Trust.

   On June 30, 1988, Carrier filed Additional Exceptions to the Proposed Schedule of Distribution.  They focused upon the provisions in the first codicil which directed the Personal Representatives to reduce the bequests made to William Schinnerer, or in trust for his children, if Victor's securities were not returned to him prior to his death free of the pledge under the Hypothecation Agreement with the bank.  Carrier noted that at the time of Victor's death, the securities were still held as collateral under the Hypothecation Agreement.  Thus, Carrier contended that under the terms of the first codicil, the gifts to William and his children should be reduced by the value of the collateralized securities.  Carrier complained that the Personal Representatives, contrary to Item 8 of Victor's will did not reduce the gifts. In urging that the orphans' court direct the Personal Representatives to so reduce the bequests to William and his children, Carrier asserted that "[i]f the amount of such collateralized assets at the time of Mr. Schinnerer's death exceeded the interests of William Reid Schinnerer or his children in the Residuary Trust . . . the cancellation of [William's] [***14] indebtedness . . . under Item 3 . . . shall be nullified to the extent of such excess and the Personal Representatives shall be instructed to collect upon such indebtedness for the benefit of the Estate."

   Initially, the Personal Representatives filed responses to Carrier's exceptions, disputing her claims.  On July 12, [*711] 1988, however, the Personal Representatives filed a Motion to Strike Carrier's pleadings, claiming that under § 1-101(g) and (k), she lacked standing to object to the administration account and proposed schedule of distribution.  Specifically, they argued that Carrier was not a "legatee" or an "interested person," as those terms are defined in § 1-101, because she was simply a beneficiary of a testamentary trust. They contended that under § 7-501(a) only "interested persons" could file objections to an account and that because Carrier was not an interested person her exceptions should be stricken.

   On July 21, 1988, after hearing arguments from the parties, the orphans' court issued an order, finding that Carrier was not a "legatee" under Victor's will, as that term is defined in § 1-101(k).  The court concluded that Carrier was neither an "interested person" [***15] under § 1-101(g) entitled to file exceptions to the Final Account, nor a "distributee" who may object to the proposed distribution under 9-104(e).  Consequently, the court ordered that Carrier's exceptions be stricken. n2£ Carrier appealed to the Court of Special Appeals.  See Maryland Code (1974, 1984 Repl.Vol.) § 12-501 of the Courts and Judicial Proceedings Article.  We granted certiorari prior to decision by the intermediate court to consider the significant issues raised in the case.

n2 In its order, the court granted Carrier's motion for a stay of distribution pending appeal with respect to the Safeway lease and those assets which are the subject of the First Codicil and Item 3 of the Will.

   II.

   Carrier argues that the orphans' court's dismissal of her objections to the first accounting and to the distribution schedule violated her rights under the Fourteenth Amendment by depriving her of property without due process of law. We first must decide whether the orphans' court correctly interpreted § 7-501 and [***16] § 9-104 as prohibiting Carrier from maintaining her objections. Because the provisions [*712] of § 7-501 for filing exceptions to an account differ from the provisions of § 9-104 for objecting to a final distribution, we will consider each of these statutes seriatim.

   A.

   Section 7-501 provides:

   (a) Filing an account.  -- Unless waived by the court for good cause [**234]shown, the personal representative shall give written notice to all interested persons of the filing of an account with the court.

   (b) Exceptions.  -- Exceptions to an account must be filed with the register within 20 days of the approval of the account by the court.  Exceptions may not be filed concerning an item which has become final and binding under § 7-502. Copies of exceptions shall be mailed by the exceptant to the personal representative.

   The orphans' court construed § 7-501 to mean that only an "interested person," as defined in § 1-101(g), may file an exception to an account.  Section 1-101(g) defines an "interested person" as "[a] legatee in being, not fully paid, whether his interest is vested or contingent."£ Section 1-101(k) of the statute further defines a "legatee" as "a person who under the [***17] terms of a will would receive a legacy," n3 including "a trustee but not a beneficiary of an interest under the trust."

n3 Section 1-101(j) defines a "legacy" as "any property disposed of by will, including property disposed of in a residuary clause and assets passing by the exercise by the decedent of a testamentary power of appointment."

   Because Victor's will designated Carrier as a beneficiary of the residuary trust, the orphans' court found that she was not an interested person as defined by § 1-101(g).  Because under its interpretation of § 7-501 only interested persons could file an objection to an account, the court concluded that Carrier did not have standing to object to the Personal Representatives' administration account.  The orphans' [*713] court committed two errors in making this determination.  First, it erred in finding that Carrier was not an interested person, and secondly, it erred in interpreting § 7-501 as providing that only interested persons could file exceptions to an account.

   As previously [***18] noted, § 1-101 does not include a beneficiary of a trust within the definition of interested person. The Explanatory Comment which follows this section, however, states that although the "[b]eneficiaries of a trust are not 'interested persons' because under subsection [(k)], 'legatee' means only the trustees, and not the beneficiaries of the trust . . . . [nevertheless] [i]n the rare instances where there is a legal future interest, the owners of the future interest will be 'interested persons.'" n4

 n4 This Comment in the Code is reprinted from the notes which follow the proposed legislation contained in the Second Report of the Governor's Commission to Review and Revise the Testamentary Law of Maryland, also known as the Henderson Report.

   In Item 5 of his Will, Victor directed that the property remaining after the devise to the Marital Trust be placed in a Residuary Trust for the benefit of his son, William, and his daughters, Sally and Sandra.  The Will provided that the Residuary Trust was to last until the death [***19] of Victor's wife, Muriel, and upon her death the Trustees were to distribute sixty percent of the corpus in various shares to Victor's three children, and place the remaining forty percent into a subtrust for their children's benefit.  These provisions resulted in Carrier receiving two distinct interests in her father's estate, rather than one.  First, she received a beneficial interest under the Residuary Trust. Because the Residuary Trust was limited in its duration to Muriel's life, Carrier's beneficial interest was an interest per autre vie, (i.e. during Muriel's life).

   In addition, Carrier received a second interest, namely a legal remainder in twelve percent of the corpus of the Residuary Trust. Ordinarily, a remainder will be created where there is a conveyance of a particular estate, such as a [*714]life estate or an estate per autre vie, followed by a conveyance of a future interest which will become a present possessory interest in someone other than the grantor, immediately upon the natural termination of the preceding particular estate created by the same instrument.  See Chism v. Reese, 190 Md. 311, 321, 58 A.2d 643 (1948); Myers v. Myers, 185 Md. 210, 221, 44 A.2d 455 (1945). [***20] See also § 14-201, defining the term "remainderman," in a trust context, as meaning "any person entitled to principal, [**235] including income which has been accumulated and added to principal."

   Upon Muriel's death the Residuary Trust terminates, the children's beneficial interests end, and sixty percent of the corpus will be distributed to Victor's three children in varying percentages. n5£ The twelve percent share of the corpus which Carrier will receive upon Muriel's death is a remainder because it is a future interest in one other than the grantor which will become a present possessory interest immediately upon the natural termination of the equitable life estate per autre vie established under the Residuary Trust. Carrier's remainder is a legal future interest because it was conveyed to her outright and not subject to any trust.  See Numsen v. Lyon, 87 Md. 31, 40-41, 39 A. 533 (1898) (holding that where a deed conveyed a life estate in trust to a woman, along with a contingent remainder to her descendants who survived her, and if none survived her then a remainder to her heirs, the remainders so conveyed were legal and not equitable).  As previously [***21] noted, the Comment which follows § 1-101 indicates that an individual, who receives a legal future interest under a will, falls within the definition of "interested person."£ Thus, Sandra Carrier, being a remainderman under her father's will, qualifies as an interested person under § 1-101 by virtue of [*715] the legal remainder conveyed to her in Item 5(A) of the Will.

n5 Specifically, William will receive fifty percent of the original sixty percent (a total of thirty percent) of the corpus, Sally will receive thirty percent of the original sixty percent (a total of eighteen percent) of the corpus, and Sandra Carrier will receive twenty percent of the original sixty percent (a total of twelve percent) of the corpus.

   B.

   As Carrier is an "interested person" under § 1-101, we next determine whether the orphans' court correctly construed the meaning and effect of that term as used in § 7-501(a).  This section, as already observed, directs the personal representative to "give written notice to all interested persons [***22] of the filing of an account with the court;" it was enacted in 1969 as part of the comprehensive revision of Maryland's testamentary law.  Prior to 1969, the law did not require that the personal representative give heirs, legatees or other interested persons notice of the filing of an account.  See Richardson v. Billingslea, 69 Md. 407, 409, 16 A. 65 (1888) (noting that under existing Maryland law, the Personal Representative was not required to give interested parties notice of the filing or the court's acceptance of an account); Rolfe v. Clark, 269 Md. 14, 18, 304 A.2d 231 (1973) (noting that "Art. 93 as it existed prior to the passage of Chapter 3 of the Acts of 1969 contained no notice provisions similar to present §§ 7-501 and 7-502"). n6£ In its Second Report, the Governor's Commission to Review and Revise the Testamentary Law of Maryland (December 5, 1968) noted at 117:

   [u]nder the current Maryland law and practice it is possible that in many cases neither the heirs nor the legatees receive any notice whatsoever of the filing of inventories or accounts, and the Commission felt that some form of adequate notice [***23] should be given to the persons who might be materially affected.  In order that this procedure does not become too cumbersome, authority [*716] is given to the Court to relieve the personal representative from sending the notices to such persons as specific and pecuniary legatees, if it deems the same appropriate.

n6 As one commentary notes, prior to 1969, interested parties were "subject to the practical tyranny of 'record notice' which, under the old law, bound them to know whatever was filed during administration whenever it was filed."£ Stiller and Redden, Statutory Reform in the Administration of Estates of Maryland Decedents, Minors and Incompetents, 29 Md.L.Rev. 85, 112 (1969).

 
   Thus, under the revised testamentary laws, interested persons, as defined by § 1-101(g) would receive notice of the filing of an account.  The Code revisions enacted in 1969, however, did not contain the provision for filing exceptions, which now appears in § 7-501(b).  Nevertheless, the [**236] orphans' court interpreted [***24] the provision for filing exceptions contained in § 7-501(b) as referring to those persons who receive notice under § 7-501(a), namely interested persons.  A careful review of the common law regarding the filing of exceptions, as well as the legislative history and express language of the statute, however, indicates that the orphans' court's interpretation of § 7-501(b) is incorrect.

   Prior to 1971, the common law dictated the procedures for filing an exception in Maryland.  Generally, under the common law, anyone named as a beneficiary under a will or anyone who might possess or derive an interest under a will could object to an account.  See, e.g., In re Estate of Provus, 30 Ill.App.3d 378, 332 N.E.2d 759, 761 (1975) (finding that persons receiving vested legal remainders under a will had the right to object to the final accounting); In re Statz' Estate, 144 Neb. 154, 12 N.W.2d 829, 835 (1944) (noting that "[t]he general rule is that any person beneficially interested in the estate embraced in an administration account may cite the executor or administrator to file an account, object, or file objections to the terms or [***25] matters contained in the account, and the representative may in a proper proceeding be surcharged with losses occurring because of a breach of trust").  See also 31 Am.Jur.2d Executors and Administrators § 521 (1967) ("Any person beneficially interested may file an objection to items contained in an executor's or administrator's account"); 34 C.J.S. Executors and Administrators § 884 (1942) ("Any legally competent person or entity interested in the disposition of the property of a decedent embraced in an administration account may object or file exceptions to its allowance").£ [*717] Maryland's case law is in accord with this view.  See, e.g., Goldsborough v. DeWitt, 171 Md. 225, 255, 189 A. 226 (1937) (holding that the owner of a life estate, trust beneficiaries, and remaindermen all had standing to challenge the propriety of accounts filed in an estate of which they were legatees); Helms v. Franciscus, 2 Bland 544, 559-60 (1830) (finding that husband who might have a claim to part of his wife's legacy under a will had standing to object to an account).  See also P. Sykes, Maryland Practice: Probate Law and Practice, [***26] § 870 (1956) (noting that "[a] distributee, a co-executor who gave a joint bond, or a trustee of an insolvent legatee is entitled to an opportunity to contest an account when it is submitted for the court's approval").  As the court explained in In re Statz' Estate, supra, the rationale behind this rule rests upon the fact that
 
[a]dministration proceedings to settle the estate of a decedent are proceedings in rem, and every person interested in such settlement is a party in the . . . court whether he is named or not.  He may appear for the purpose of protecting his interests in the . . . court.  12 N.W.2d at 835.

   Under the common law, therefore, an individual who possessed either a beneficial interest under a trust or a future interest, such as a remainder, would be permitted to object to an account.  We now determine whether this rule has been altered by the enactment of § 7-501(b).

   Section 7-501(b) was enacted by Chapter 786 of the Acts of 1971.  Because this subsection of the statute was not included in the original revision, there are no comments or committee reports which indicate the Legislature's purpose in [***27] enacting it.  The only indication of legislative intent is contained in the title to the enactment which indicates that the legislative purpose was to effectuate a "change in . . . the time within which exceptions to an account must be filed . . ."£ This statement suggests that the Legislature intended that § 7-501(b) establish a specific time period for filing exceptions rather than to limit the class of persons who could file exceptions.  This interpretation is supported [*718] by the fact that § 7-501(b) does not use the words "interested person," but rather refers to one filing exceptions only as an "exceptant." n7

n7 Compare § 7-204 which indicates that only "the state or an interested person may petition the court for revision of a value assigned to an item of inventory . . ."

   In addition, the express language of § 7-501(b) suggests that individuals, other [**237] than interested persons, may file exceptions to an administration account.  It specifically refers to exceptions which may be filed as to items described [***28] in § 7-502. n8£ The notice provision of § 7-502, however, extends to both creditors and interested persons.  This reference to creditors in § 7-502 suggests that parties other than interested persons have a right to file exceptions under § 7-501(b).

n8 Section 7-502(a) provides:

   Notice.  -- The personal representative shall give written notice to each creditor who has filed a claim under § 8-104 which is still open and to all interested persons of a claim, petition, or other request which could result, directly or indirectly, in the payment of a debt, commission, fee, or other compensation to or for the benefit of the personal representative or the attorney for the estate.  The notice shall state the amount requested, and set forth in reasonable detail the basis for the request.  It shall also state that a request for hearing may be made within 20 days after the notice is sent.

   This interpretation of § 7-502(b) is consistent with case law in other states.  For example, in In re Estate of Provus, supra, [***29] the court also addressed the issue of whether a remainderman of a testamentary trust could file an objection to an account where the controlling statute did "not expressly indicate who may or may not object to an executor's final accounting."£ 332 N.E.2d at 761. In Provus, as in the present case, the personal representatives argued that only those persons who were entitled to receive notice under the notice statute could object to the account.  The court rejected this contention, stating:
 
By its terms, . . . [the notice statute] specifies only those persons entitled to receive notice of the accounting.  Nonetheless, it may be inferred that persons entitled to [*719] notice (unpaid creditors and persons entitled to share in the estate who are unpaid) are also entitled to object.  However, it does not necessarily follow that only those persons, and no others, may object. Id. (emphasis in original).
 
Instead, the court found that any person having "an interest in maintaining the assets of the estate intact" had a right to object. Id.£ Thus, the court concluded that remaindermen of a testamentary trust were interested persons and [***30] had a right to object to the administration account despite the fact that they had not received notice of the filing of the executors' account.  Id.

   The present case is similar to Provus, supra. Section 7-501(b), like the statute in Provus, does not expressly indicate who may object to a personal representative's administration account.  The history underlying the enactment of § 7-501(b) suggests that it was enacted merely to establish a time limit for filing exceptions.  In addition, the reference to § 7-502 suggests that parties other than interested persons have a right to file exceptions under § 7-501(b). Under these circumstances, § 7-501(b) is more properly construed as providing a limit on the time within which exceptions may be filed, rather than as limiting the class of persons who may file exceptions.  Consequently, we find that the common law continues to control the issue of who has standing to file an objection.  Because it allows for the filing of exceptions by both beneficiaries of a testamentary trust and remaindermen, we find that Carrier, who is both a trust beneficiary and a remainderman under her father's will, has standing [***31]to object to the administration account filed by the Personal Representatives.

   C.

   The final issue raised by the orphans' court's order is whether Carrier has standing to file an objection to the Personal Representatives' Proposed Schedule of Distribution.  Section 9-104(e) provides:

   [*720] Right to object.  -- After the probable charges against the estate are known, the personal representative may mail or deliver a proposal for distribution to all persons who have a right to object to the proposed distribution.  If not waived in writing, the right of a distributee to object to the proposed distribution terminates if he fails to object in writing received by the personal representative [**238] within 30 days after mailing or delivery of the proposal.

   This section, like § 7-501(a), was enacted in 1969 as part of the revised testamentary Code.  The Official Comment which follows this section, and which is reprinted in the Code, does not define who is a distributee and thus who may object to the proposed distribution.  The Comment, however, does refer to legatees, by indicating that "[t]he Commission felt that the personal representative could use any reasonable method [for valuing [***32] assets], and if the legatee disputed the method of valuation, the legatee would have the opportunity to object."

    The Personal Representatives contend that the Comment's reference to legatees indicates that the right to object is limited to legatees. We do not agree.  The reference to legatees in the Comment was intended as an example of how the provision would operate and not as a limitation on who may object to a proposed distribution.  Thus, we do not construe the reference to legatee contained in the Comment as indicating that the right to object to a proposed distribution under § 9-104(e) is limited to legatees.

   Having concluded that the right to object extends to persons other than legatees, we next consider who, besides legatees, may object to a proposed distribution.  Section 9-104(e) does not refer to "interested person" but instead describes any potential objector as a "distributee." n9£ [*721] This term is not defined in the statute, but various cases have defined the term as meaning an heir, legatee or other party entitled to take a whole or a part of an estate or one who is otherwise entitled to share in the distribution of an estate. n10£ See Register of Wills v. Blackway, 217 Md. 1, 15, 141 A.2d 713 (1958) [***33] (noting that "[t]he word 'distributee' is defined as follows in Black's Law Dictionary: 'An heir; a person entitled to share in the distribution of an estate'"); Gradman, supra, 183 Md. at 640, 39 A.2d 808 (noting that "[a] legatee, or distributee, is a party entitled to take the whole or a part of an estate").  We believe that this definition of "distributee" is the proper construction of the term as it is used in § 9-104(e), and thus under that statute any person who will receive the whole or any part of an estate is entitled to object to a proposal for distribution.  Consequently, because Carrier will receive a share of her father's estate under Item 5 of the Will, she is a distributee of her father's estate.  Thus, she may object to the Proposed Schedule of Distribution filed by the Personal Representatives.

n9 It is likely that the use of the term "distributee" in § 9-104(e), rather than "interested person," indicates a conscious choice not to limit the right to object to a proposed distribution to interested persons.  The Comment which follows § 1-101 states that the definition of interested person contained in that section was of "considerable importance" because it was used in other sections of the Code.  This statement suggests that the term "interested person" had a precise meaning and would only be used in subsequent sections when its invocation was deemed appropriate.

[***34] 

n10 In Gradman v. Brown, 183 Md. 634, 39 A.2d 808 (1944), we defined the word "estate" as meaning "in the testamentary law, such property that passes, upon death, to the personal representative of the decedent."£ Id. at 640, 39 A.2d 808.

   III.

   The Personal Representatives also contend that if Carrier has standing to file objections to the First Account and the Proposed Schedule of Distribution, then the orphans' court lacks jurisdiction to consider the merits of her claims.  Specifically, they focus upon Carrier's contention that the Personal Representatives erred in determining that William Schinnerer had satisfied the requirements of the [*722] first codicil by returning the bonds free of the pledge after Victor's death.  As to this, the Personal Representatives say that this is an issue requiring construction of the will, and that the orphans' court lacks the authority to construe a will.

   The question of jurisdiction was not raised below.  Nevertheless, "matters of jurisdiction are always before this court and are exceptions to [***35] the general rule that we will consider only such questions as have been raised and decided below."£ [**239] Webb v. Oxley, 226 Md. 339, 343, 173 A.2d 358 (1961), cert. denied, 369 U.S. 803, 82 S.Ct. 642, 7 L.Ed.2d 550 (1962). The jurisdiction of the orphans' court is set forth in § 2-102, which states:

   (a) Powers.  -- The court may conduct judicial probate, direct the conduct of a personal representative, and pass orders which may be required in the course of the administration of an estate of a decedent. It may summon witnesses.  The court shall not, under pretext of incidental power or constructive authority, exercise any jurisdiction not expressly conferred.
 
As we noted in Clarke v. Clarke, 291 Md. 289, 293, 435 A.2d 415 (1981), "an orphans' court is a court of very limited jurisdiction."£ It is primarily entrusted with the administration of decedents' estates and thus as a general rule the "'estates of deceased persons should ordinarily be administered and finally distributed in the orphans' courts.'"£ Clarke, supra, 291 Md. at 293, 435 A.2d 415; [***36] quoting, Knox v. Stamper, 186 Md. 238, 245, 46 A.2d 361 (1946).

   In some instances when a case involves matters of will construction, the circuit court will exercise jurisdiction while in others the orphans' court may construe the will.  As we explained in Clarke,
 
If a substantial issue as to the meaning of a will exists, involving ambiguous or intricate provisions, construction of the will is generally for the equity court and beyond the authority of the orphans' court . . . .  "The jurisdiction of equity in the construction of wills . . . arises from the difficulty of understanding the meaning of complicated [*723] provisions in a will, or the uncertainty as to the rights and interests of the parties claiming under them . . . ."

   However, it is settled that some issues of construction are for the orphans' court.  Where the language of the will is such "as to permit no reasonable doubt of its meaning . . . [,] a court of equity will refuse to construe it," and construction is for the orphans' court.  291 Md. at 294, 435 A.2d 415.
 
This Court has repeatedly found that the orphans' courts have the power to construe [***37] wills for the purpose of determining which persons are to receive property under a will, as well as which assets shall be distributed to them.  See, e.g., Clarke, supra, 291 Md. at 294, 435 A.2d 415 ("The orphans' court has the power of construction for the purpose of deciding who shall take under a will and what they shall take"); Davis v. Davis, 278 Md. 534, 537, 365 A.2d 1004 (1976) (holding that the orphans' court had the power to make "a determination of who is to take under a will or in the disposition of the assets of the estate, a question which is clearly within the jurisdiction of an orphans court"); Redwood v. Howison, 129 Md. 577, 592, 99 A. 863 (1917) ("The Orphans' Court has authority 'to hear and determine the question who are next of kin, and to decide between parties claiming adversely to each other, and to determine which of them are next of kin entitled to distribution' . . ., and to determine what is to be distributed and who are legatees").  As we explained in Pole v. Simmons, 45 Md. 246, 249-50 (1876):
 
[Section 2-102] confers full power on [***38] the Orphans' Court to take probate of wills, grant letters testamentary and of administration, direct the conduct and settling of the accounts of executors and administrators, superintend the distribution of the estates of intestates, secure the rights of orphans and legatees, and to administer justice in all matters relative to the affairs of deceased persons.  Under this section, we think it clear the Orphans' Court had jurisdiction of the matter presented by the petition, for it would be impossible to superintend and make distribution [*724] of the estate without the authority to determine what was to be distributed; and this necessarily involves the questions as to what are assets, and, when there is a will, who are the legatees, and what is given to them by the will.  Having jurisdiction of the subject-matter of the controversy, the Orphans' Court has the right to hear and receive evidence in relation to it; and, if the evidence consists of written instruments, to examine and construe them, in [**240] order that it may properly apply it to the case before it.
 
Thus, we have held that the orphans' court may construe a will to the extent that it is necessary to perform its function [***39] of approving an account of an executor by which payments of legacies were made.  See, e.g., Hagerstown Trust Co., Ex. of Mealey, 119 Md. 224, 232-33, 86 A. 982 (App.1913). We have also held that the court may construe a will to determine the testator's intent in making a particular bequest, see Longerbeam v. Iser, 159 Md. 244, 247, 150 A. 793 (1930), and that the orphans' court may construe a will to determine if a codicil modified a bequest contained in the will, see Estate of Childs v. Hoagland, 181 Md. 550, 551-52, 30 A.2d 766 (1943).

   In her exceptions to the proposed schedule of distribution, Carrier contended that the Personal Representatives erred in interpreting the language of the First Codicil as not intending a forfeiture of William's bequest when he had paid the loans in full without resort to estate assets or the pledged collateral. As indicated, the orphans' court has the power to construe a will or codicil to the extent that it is necessary to determine what are estate assets, which of these assets are included in a bequest, and who is to take property under a bequest. [***40] See Clarke, supra, 291 Md. at 294, 435 A.2d 415. In this case, Carrier is asking the orphans' court to construe the First Codicil to determine whether William is to receive all the bequests made to him in his father's will, as the Personal Representatives contend, or if those bequests are to be reduced by the amount of the assets not returned to Victor prior to his death.  This determination falls within the scope of the orphans' court's [*725]power to determine who will receive assets of an estate, as well as what property that party will receive; in this case the power is exercised incidental to the orphans' court's power to approve the Proposed Schedule of Distribution and its power to superintend the distribution of the estate.  We, therefore, find that the orphans' court has jurisdiction to decide the issues raised by Carrier's exceptions.

    IV.

   Because the orphans' court found that Carrier lacked standing to file the exceptions, it struck her pleadings and therefore did not reach the merits of her claims.  Under Maryland Rule 8-131, we may decide issues which have been raised but not decided by the trial court.  In many cases, however, it is [***41]not desirable to address an issue without the benefit of its having been examined and first resolved by the lower court.  See, e.g., Morgan v. Dietrich, 178 Md. 66, 70, 12 A.2d 199 (1940) (declining to decide the issue of estoppel where it had not been passed upon by the orphans' court).  We think the interests of the parties and the court in the present case would best be served by remanding the matter to the orphans' court for a full consideration of the issues raised in the exceptions filed by Carrier.

   ORDER OF THE ORPHANS' COURT FOR ANNE ARUNDEL COUNTY VACATED; CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION; COSTS TO BE PAID BY APPELLEES. 

Edward A. JOHNSON v. Wallace H. BAKER, et al. 
Petition No. 137, September Term, 1988
 
Court of Appeals of Maryland
 
317 Md. 32; 562 A.2d 151; 1989 Md. LEXIS 183

 July  26, 1989

   PRIOR HISTORY:  
[**1] Circuit Court for  Anne Arundel  County.

   No. 1160, September Term, 1988.

COUNSEL: Edward A. Johnson, pro se.

   Royal G. Shannhouse, Walter Childs, Basil E. Moore, Jr., Annapolis, for respondents.

JUDGES: Murphy, C.J., and Eldridge, Cole, Rodowsky, McAuliffe, Adkins and Blackwell, JJ.  Cole, J., dissents from that part of the order requiring the petitioner to pay Five Hundred Dollars ($500.00).

OPINION: [*32] ORDER

   The Court having considered the petition for writ of certiorari to the Court of Special Appeals, the answer of the respondent, Wallace H. Baker and the answer and motion for costs and attorneys fees filed by Blumenthal, Wayson, Downs and Offutt, P.A. in the above entitled case and

   The Court having determined that the petition was filed without substantial justification in violation of Md.Rule 1-341, it is this 26th day of July, 1989

   ORDERED, by the Court of Appeals of Maryland, that the petition be, and it is hereby, denied as there has been no showing that review by certiorari is desirable and in the public interest and it is further

   ORDERED, that the petitioner shall forthwith pay to the respondent Blumenthal, Wayson, Downs and Offutt, P.A. Five Hundred Dollars ($500.00) which represents the reasonable [*33] costs, expenses, and attorneys fees incurred by this respondent in opposing the petition.  [**2] 

Albert J. BACHMANN, Jr. et ux. v. GLAZER & GLAZER, INC. 
No. 105, September Term, 1988
 
Court of Appeals of Maryland
 
316 Md. 405; 559 A.2d 365; 1989 Md. LEXIS 97

 June  19, 1989

   PRIOR HISTORY: [***1]  
Circuit Court for  Anne Arundel  County pursuant to certiorari to Court of Special Appeals, Martin A. Wolff, Judge.

DISPOSITION: JUDGMENT AFFIRMED; APPELLANTS TO PAY THE COSTS.

CORE TERMS:  tenant, guarantor, landlord, rent, subrogation, lease, doctrine of subrogation, assignee, conventional subrogation, lessee, third party, guaranty, subrogee, sales agreement, promotional, default, assign, right of subrogation, summary judgment, assignment of lease, Law of Contracts, entitled to recover, legal subrogation, material fact, third person, public works, conventional, settlement, power of attorney, lease agreement

COUNSEL: Alan Hilliard Legum (Legum & Henley, P.A., both on brief), both of Annapolis, Maryland, for appellant.

   Mitchell Stevan (Weinberger, Weinstock, Sagner, Stevan & Harris, P.A., both on brief), both of Baltimore, Maryland, for appellee.

JUDGES: Eldridge, Cole, Rodowsky, McAuliffe, Adkins and Blackwell, JJ., and Marvin H. Smith, Associate Judge of the Court of Appeals of Maryland (retired), Specially Assigned.

OPINIONBY: SMITH

OPINION: [*408] [**366] We shall here hold that a guarantor of rent is not released from his obligation when a third party pays that debt pursuant to an agreement with a creditor of the tenant that the third party shall have an assignment of the creditor's claim.

   Appellants, Albert J. Bachmann, Jr., and Evelyn Bachmann, his wife (the guarantors), were the guarantors of a commercial lease between A.J.B. Clothiers, Inc. (the tenant) and The Village of Cross Keys, Incorporated (the landlord). The lease was assigned to appellee Glazer & Glazer, Inc. (Glazer).

   I

    This appeal is one from a grant of summary judgment. Under Maryland Rule 2-501 [***2] summary judgment is to be rendered forthwith "if the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law."£ The function of a summary judgment is not to try the case or to attempt to resolve factual issues, but to determine whether there is a dispute as to a material fact sufficient to provide an issue to be tried.  See Coffey v. Derby Steel Co., 291 Md. 241, 247, 434 A.2d 564 (1981); Berkey v. Delia, 287 Md. 302, 304, 413 A.2d 170 (1980) (and cases cited therein); Washington Homes v. Inter. Land Dev., 281 Md. 712, 716, 382 A.2d 555 (1978). On review, therefore, we are concerned with whether there was a dispute as to any material fact and, if not, whether the movant was entitled to judgment as a matter of law.

   We set forth the facts which we glean from the pleadings, affidavits, and exhibits.

   On June 14, 1985, the tenant leased commercial space in Harundale Shopping Center from the landlord. The tenant operated [***3] a men's clothing store known as "Gentleman's [*409] Quarters."£ The lease agreement prohibited assignment without the written consent of the landlord. Under an agreement executed the same day as the lease agreement the guarantors guaranteed the rental payments.  By the terms of that agreement they could not be released from their obligations as guarantors even if the landlord released the tenant from its obligations.  The guaranty agreement also [**367] provided that the guaranty would extend to any assignee of the tenant's interest in the lease.

   On September 6, 1985, the tenant entered into a promotional sales agreement with Glazer whereby Glazer agreed to supply merchandise on consignment and to act as a sales consultant.  Among the remedies reserved to Glazer in the promotional sales agreement, in the event of default by the tenant, is the power of attorney granted to Glazer to assign the lease to Glazer.  The guarantors also guaranteed the promotional sales agreement, including "all sums due Glazer & Glazer, Inc. . . . whether arising out of this agreement or out of any other agreement in writing which Glazer & Glazer, Inc., may make with [the tenant]."

   The tenant defaulted on the [***4] promotional sales agreement. On December 9, 1987, Glazer exercised the power of attorney to assign itself the lease. At the time of the assignment the tenant owed three months rent amounting to $15,686.99. n1£ By letter dated December 9, 1987, the attorney for Glazer transmitted the assignment of lease to counsel for the landlord seeking the landlord's consent.  The letter stated that Glazer agreed to pay the tenant's back rent and that in return for this it was agreed that the landlord would "assign to Glazer & Glazer, Inc.  . . .  Landlord's claim against [the tenant] and its guarantors for the said past due rent of $15,686.99." n2£ In a second letter, also dated December [*410] 9, 1987, Glazer's attorney acknowledged that the assignment of the lease would operate for a temporary period of 30 days and that in the intervening 30-day period "the Landlord [would] prepare a lease agreement on its usual form for assignment which, when executed, [would] operate for the remaining term of the lease."£ The landlord consented to the assignment. 

n1 Glazer originally sued the guarantors for $15,686.99 but later filed a credit of $2,745.22 recognizing that the tenant was liable for only nine days of rent in December rather than for the entire month.

n2 [***5] A debt which has actual or potential existence is a proper subject of an assignment.  Summers v. Freishtat, 274 Md. 404, 407, 335 A.2d 89 (1975); Seymour v. Finance & Guaranty Co., 155 Md. 514, 531, 142 A. 710 (1928).

   Pursuant to the December 9, 1987, agreement, on December 31, 1987, Glazer paid the landlord the back rent owed by the tenant. On February 9, 1988, Glazer brought suit against the guarantors in the Circuit Court for Anne Arundel County.  The trial court granted summary judgment in favor of Glazer for the sum of $12,941.77 and costs.  The guarantors appealed to the Court of Special Appeals.  We issued a writ of certiorari prior to a determination in that court in order that we might consider the important public question here presented.

   II

   The guarantors contend that their obligation as guarantors of the tenant's rental payments was discharged when Glazer paid the back rent and that the trial court thus erred in granting summary judgment in favor of Glazer.

   We believe this case involves the doctrine of subrogation. [***6] Although Glazer did not specifically invoke the doctrine of subrogation, the pleadings contain all of the elements necessary for application of this equitable remedy.  On at least two previous occasions this Court has applied the doctrine of subrogation even though the plaintiff did not argue this theory of recovery.

   In Schnader, Inc. v. Cole Build. Co., 236 Md. 17, 202 A.2d 326 (1964), a developer (Schnader) purchased 38 lots from another developer (Cole) who had failed to fulfill a public works agreement on other lots not purchased by [*411]Schnader.  Schnader was the assignee of the public works agreement between the county and Cole.  The county would not allow Schnader to pave the streets on his property until the streets on Cole's property were paved. Schnader was forced to pay the cost of the uncompleted portion of the public works agreement on Cole's lots in order to save his $500,000 investment.  The trial court ruled that Schnader had paid the money to the county as a "volunteer."£ Schnader had advanced several theories of recovery at [**368] trial, none of which was the doctrine of subrogation. Nevertheless, this Court held that Schnader was [***7] entitled to recover under that doctrine because his pleadings satisfied the requisite elements.  236 Md. at 24-25, 202 A.2d 326. That case was one involving legal subrogation. The essential elements are: (1) the existence of a debt or obligation for which a party, other than the subrogee, is primarily liable, which (2) the subrogee, who is neither a volunteer nor an intermeddler, pays or discharges in order to protect his own rights or interests.  Id. at 23, 202 A.2d 326.
 
   Maryland Title v. Kosisky, 245 Md. 13, 225 A.2d 47 (1966), is another case involving legal subrogation. The plaintiff did not raise the issue of subrogation but this Court, citing Schnader, held that the application of the doctrine was appropriate if the pleadings alleged the necessary elements and these elements were supported by the facts.  245 Md. at 19, 225 A.2d 47. Mr. and Mrs. Kosisky sold a house and deposited the proceeds in escrow with the settlement agent, Sapero, pending settlement on their new house.  The money was held under an irrevocable trust for the vendor of the new home.  [***8] Maryland Title was advised of the escrow account.  The money in the escrow account was not received on the day of settlement and Maryland Title paid the vendor from its own funds.  When it was unable to collect from Sapero, Maryland Title sued the Kosiskys.  This Court determined that the title company would have had a right of subrogation against the Kosiskys but for the fact that the right of subrogation can be lost by agreement.  Id. at 21, 225 A.2d 47. Maryland Title knew [*412] the money was to come from Sapero and acquiesced in looking to Sapero for payment by making a notation to this effect on the settlement sheet.

   We are here presented with another situation where a plaintiff has not specifically invoked the doctrine of subrogation, but, as in Schnader and Maryland Title, all of the elements of this doctrine have been pleaded and proved.  Glazer is thus entitled to recover under the doctrine of subrogation.

   The Supreme Court of the United States has observed that subrogation is one of the oldest of the equitable doctrines evolved by the courts.  Under the doctrine of subrogation "one who has been compelled to pay a debt which ought [***9]to have been paid by another is entitled to exercise all the remedies which the creditor possessed against that other."£ Amer. Surety Co. v. Bethlehem Bank, 314 U.S. 314, 317, 62 S.Ct. 226, 228, 86 L.Ed. 241 (1941) (citing H. Sheldon, The Law of Subrogation § 11 (2d ed. 1893).

   Subrogation is founded upon the equitable powers of the court.  It is intended to provide relief against loss and damage to a meritorious creditor who has paid the debt of another.  Milholland v. Tiffany, 64 Md. 455, 460, 2 A. 831 (1886). The doctrine is a legal fiction whereby an obligation extinguished by a payment made by a third person is treated as still subsisting for the benefit of this third person. Harford Bank v. Hopper's Estate, 169 Md. 314, 324, 181 A. 751 (1935) (citing Aetna Life Ins. Co. v. Middleport, 124 U.S. 534, 8 S.Ct. 625, 31 L.Ed. 537 (1888)). This third person succeeds to the rights of the creditor in relation to the debt.  Finance Co. of Am. v. U.S.F. & G. Co., 277 Md. 177, 182, 353 A.2d 249 (1976) (and [***10] cases cited therein); Schnader, 236 Md. at 22, 202 A.2d 326. The rationale underlying the doctrine of subrogation is to prevent the party primarily liable on the debt from being unjustly enriched when someone pays his debt.  Security Ins. Co. v. Mangan, 250 Md. 241, 246-47, 242 A.2d 482 [*413] (1968). See also 10 S. Williston, A Treatise on the Law of Contracts § 1265 at 845 (W. Jaeger 3d ed. 1967):
 
"The object of subrogation is the prevention of injustice.  It is designed to promote and to accomplish justice, and is the mode which equity adopts to compel the ultimate payment of a debt by one, who, in justice, equity, and good conscience, should pay it.  It is an appropriate means of preventing unjust enrichment.  The doctrine of subrogation is applied to . . . do equity in the particular case under consideration."
  
[**369] Since a person entitled to subrogation stands in the shoes of the creditor, he is ordinarily entitled to all the remedies of the creditor, and he may use all the means which the creditor could employ to enforce payment.  Poe v. Phila. Casualty Co., 118 Md. 347, 352-53, 84 A. 476 (1912). [***11] This means that a subrogee can enforce the obligation of a guarantor of the debtor.

   There are three separate categories of subrogation recognized in Maryland: legal subrogation, conventional subrogation, and statutory subrogation. Finance Co. of Am., 277 Md. at 182, 353 A.2d 249. Legal subrogation arises by operation of law whereby a third party who pays a debt to protect his own interests is deemed to be entitled to reimbursement.  Security Ins. Co. v. Mangan, 250 Md. at 246-47, 242 A.2d 482. Conventional subrogation arises by an express or implied agreement; i.e., by contract.  Id. at 246, 242 A.2d 482. Statutory subrogation arises by act of a legislature.  See, e.g., Maryland Code (1983) § 15-401, Commercial Law Article, which codifies a surety's common law right of subrogation. Subrogation by assignment, such as we have in the instant case, is a form of conventional subrogation as Judge Singley pointed out for the Court in Security Ins. Co. v. Mangan, 250 Md. at 246, n. 7, 242 A.2d 482. He said, "[A]ssignment of the . . . right of recovery [gives] [***12] rise to conventional subrogation."£ Id. at 249, 242 A.2d 482.

   The case before us involves conventional subrogation. Conventional subrogation is founded upon an agreement, [*414] express or implied, between a debtor and a third party or between a creditor and a third party that, upon payment of the debt, the third party will be entitled to all the rights and securities of that debtor or that creditor.  See Security Ins. Co. at 246, 242 A.2d 482; Harford Bank, 169 Md. at 327, 181 A. 751. Under the agreement between Glazer and the landlord reached December 9, 1987, Glazer agreed to pay the tenant's back rent and the landlord agreed to assign to Glazer the lease and the landlord's claim against the tenant and the tenant's guarantors. n3

n3 Glazer acquired its right of subrogation on December 31, 1987, when it paid the debt, rather than on December 9, 1987, when it had made only a promise to pay the debt.  The right of subrogation does not arise until a debt has actually been paid.  See Harford Bank v. Hopper's Estate, 169 Md. 314, 324, 181 A. 751 (1935); 10 S. Williston, A Treatise on the Law of Contracts § 1269 at 857 (W. Jaeger 3d ed. 1967); 83 C.J.S. Subrogation § 11 (1953).

   [***13] The guarantors contend that the tenant's debt had not been assigned to Glazer when Glazer paid the debt on December 31, 1987.  They point to an "Assignment and Amendment of Lease" executed by the landlord and Glazer in February or March, 1988, but dated December 9, 1987.  (We have not been given the exact date.)£ From this they argue that an assignment of a debt subsequent to payment of the debt cannot revive it.  They have ignored the assignment of lease executed by Glazer pursuant to its power of attorney on December 9, 1987, consented to at that time by the landlord, and the two letters of the same date from Glazer's attorney to the landlord's attorney.  Although the assignment of lease does not mention the assignment of the debt, the letter which accompanied the assignment states that Glazer accepted the responsibility for the past due rent in return for an assignment of the claim against the tenant and its guarantors. The second letter adds to the assignment the acknowledgment that the assignment was to operate for a temporary period of 30 days and that a subsequent agreement was to be prepared on the landlord's "usual form of assignment" for the remaining term of the lease. [***14] [*415] A contract may consist of more than one document.  The assignment of lease and the two letters constitute a contract in this case.  See, e.g., Rothman v. Silver, 245 Md. 292, 295-96, 226 A.2d 308 (1967) (the agreement of the parties was integrated in four documents consisting of an agreement of sale dated January 24 and three other documents executed February 7 which were contemplated in the January 24 writing).

   When a contract is comprised of more than one document, the writings are to be read and construed together as if they were one instrument.  Id. at 296, 226 A.2d [**370] 308 (and cases and authorities cited therein) In the instant case the assignment and two letters dated December 9, 1987, together constitute an assignment to Glazer of the lease and also an assignment of the claim for back rent. The subsequent assignment and amendment executed on the landlord's "usual form" was simply a restatement of the terms of the agreement contained in the three December 9, 1987, writings.  These four documents constitute a single integrated agreement concerning the transfer of tenant's lease to Glazer.

   Contrary to the guarantors' [***15] assertion that Glazer paid the back rent with the purpose of extinguishing the debt, Glazer was compelled to pay the debt as a condition to landlord's consenting to the assignment of the lease. The consent of a landlord to an assignment, or his receipt of rent from the assignee, does not affect the lessee's liability for unpaid installments unless the landlord and assignee enter into a new contract which constitutes a novation and a release of the lessee. 49 Am.Jur.2d Landlord and Tenant §§ 440, 442 (1970).  In the case at bar there was an assignment, not a new contract.  Since the assignee of the lease is not personally liable for rent which accrued prior to his acquisition of the lease (49 Am.Jur.2d Landlord and Tenant § 465), lessee and his guarantor are liable for rent owed prior to the assignment.  Glazer was unable to collect the back rent from the tenant who filed a voluntary bankruptcy petition on December 11, 1987.  Consequently, Glazer [*416] proceeded against the guarantors of the tenant's debt.  As the assignee of the landlord's claim against the tenant, Glazer was entitled to sue the tenant's guarantors because assignment of a debt ordinarily carries with [***16] it every remedy or security that is incidental to the subject matter of the assignment and that could have been used by the assignor as a means of payment.  See Hewell v. Coulbourn, 54 Md. 59, 64 (1880). See also 6 Am.Jur.2d Assignments § 121 (1963).

   Assignment of a debt is held to operate as an assignment of a guaranty of the debt.  See 38 Am.Jur.2d Guaranty § 36 (1968); 6 Am.Jur.2d Assignments § 121. Discharge of a guarantor can occur only when the lessee's debts have been fully paid or otherwise satisfied.  See 38 Am.Jur.2d Guaranty §§ 78, 79 (1968).  38 C.J.S. Guaranty § 77 (1943), says that
 
"payment or other satisfaction or extinguishment of the principal debt or obligation by the principal, or by any one for him, discharges the guarantor . . . ."£ (emphasis supplied)
 
 It is evident, however, from the first December 9, 1987, letter and from the documents executed by Glazer that Glazer did not pay the rent "for" the tenant. Glazer paid the rent because the landlord required Glazer to pay it as a condition of granting the assignment.

   Recovery on a theory of conventional subrogation is based on contract but it is nevertheless [***17] subject to principles of equity.  A conventional subrogee is not necessarily entitled to subrogation as a matter of legal right; the relative equities of the parties are still to be balanced.  See Finance Co. of Am., 277 Md. at 185, 353 A.2d 249 (citing Maryland Trust Co. v. Poffenberger, 156 Md. 200, 144 A. 249 (1929)); Security Ins. Co., 250 Md. at 247, 242 A.2d 482; Maryland Title, 245 Md. at 20, 225 A.2d 47; Schnader, 236 Md. at 22, 202 A.2d 326. See also 73 Am.Jur.2d Subrogation § 9 (1974); J. Mullen, The Equitable Doctrine of Subrogation, 3 Md.L.Rev. 201, 208-09 (1939).

   [*417] The equities in the case at bar favor Glazer.  Glazer was forced to pay the tenant's debt in order to protect Glazer's interest in the store. The tenant defaulted in December, a busy month for merchants.  Glazer had merchandise in the tenant's store which would remain unsold if Glazer did not take over operations at the store.  The only way to get the consent of the landlord to the assignment of the lease was to pay [***18] the tenant's back rent. Glazer is entitled to be repaid for an expense resulting from the tenant's default on the promotional sales agreement it had with Glazer.  There is no equitable argument favoring the guarantors. They promised to pay the rent in the event of the tenant's default. n4£ [**371] Their guaranty expressly included any assignee of the tenant. To permit the guarantors to escape their obligation would result in unjust enrichment.  This is precisely the result that the doctrine of subrogation was created to avoid.  See 10 S. Williston, A Treatise on the Law of Contracts, § 1265 at 845.

n4 A guaranty of payment of rent is an absolute and not a conditional undertaking upon which the guarantor is liable immediately upon the default of the lessee without any attempt to collect from the lessee. See 49 Am.Jur.2d Landlord and Tenant § 662 (1970).  A guarantor promises to perform if the principal does not.  General Motors Acceptance v. Daniels, 303 Md. 254, 260, 492 A.2d 1306 (1985).

   [***19] In any subrogation case, the burden of proving entitlement is on the subrogee. Security Ins. Co., 250 Md. at 248, 242 A.2d 482. In order for Glazer to recover from the guarantors under a theory of conventional subrogation, Glazer needed to prove: (1) that the landlord agreed to assign the debt to Glazer and 2) that Glazer paid the tenant's debt.  Glazer proved it received an assignment of the debt on December 9, 1987, and that it paid the debt on December 31, 1987.  As we said in Schnader and in Maryland Title, it matters not that Glazer did not use the term "subrogation" in its pleadings. Glazer has established the requisite elements of conventional subrogation and is entitled to recover against the guarantors unless this would be inequitable under the particular circumstances of this case.  [*418] We find no such inequity here.  The guarantors agreed to guarantee the rental payments of the tenant or its assignee. They were liable for the payments immediately upon the default of the tenant. Furthermore, the guarantors are not without a remedy. When a guarantor is compelled to make good his guaranty, he can avail himself of his statutory [***20] right of subrogation against the debtor.  Maryland Code (1983) § 15-401, Commercial Law Article.  Of course, with the tenant in bankruptcy the guarantors may recover nothing from the tenant, but that does not change their liability.

   JUDGMENT AFFIRMED; APPELLANTS TO PAY THE COSTS. 

HICKORY POINT PARTNERSHIP v. ANNE ARUNDEL COUNTY, Marylandet al. 
No. 72, September Term, 1988
 
Court of Appeals of Maryland
 
316 Md. 118; 557 A.2d 626; 1989 Md. LEXIS 75

 May  10, 1989

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to Court of Special Appeals, Eugene M. Lerner Judge.

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY MODIFIED, AND AS MODIFIED, AFFIRMED.  COSTS TO BE PAID BY THE APPELLANT.

CORE TERMS:  plat, regulation, public works, open space, recorded, homeowners, declaration, declaratory judgment, recreation, zoning, conveyed, subdivider, ripeness, null and void, covenants, drawing, ripe, pipeline, restrictive covenants, resubdivision, engineering, acre, declaratory relief, ordinance, contingent, conveyance, license, deed, designated, developer

COUNSEL: Argued by Royal G. Shannonhouse, Annapolis, Maryland (David A. Simison, Arnold, Maryland, on brief), for appellant.

   Argued by Robert S. Brennen (Thomas E. Lynch, III, Miles & Stockbridge, all on brief), all of Baltimore, Maryland, William E. Kirk (Townshend & Kirk, P.A., Emile Henault, all on brief), all of Annapolis, Maryland (Daniel C. Conkling, on brief), Glen Burnie, for appellees.

JUDGES: Murphy, C.J., and Eldridge, Cole, Rodowsky, McAuliffe, Adkins and Blackwell, JJ.

OPINIONBY: RODOWSKY

OPINION: [*120] [**626] Appellant, Hickory Point Partnership (the Partnership), owns, and contemplates [**627] completing, a relatively large residential subdivision.  Development of the subdivision stalled some years ago after "final" plats had been recorded, restrictive covenants had been imposed, open space had been placed in trust and some lots had been conveyed to homeowners by reference to the plats. Presently to carry the project forward the Partnership must obtain plat approvals [***2] under current subdivision regulations. Before undertaking to do so, however, the Partnership brought the instant declaratory judgment action to get a determination whether homeowners can prevent implementation of a development concept by successfully contending that it violates rights acquired under the earlier common scheme of development. In the circuit court and in its brief as appellant, the Partnership contended that subdivision regulations caused the homeowners to lose any rights based on a common scheme of development when those regulations operated, because of inaction on the part of the Partnership, to extinguish the previously obtained plat approvals.  We shall hold that there is no merit in that contention.  In its reply brief, filed by new counsel who also argued orally, the Partnership further submitted that the trial court erred by failing to specify the homeowners' rights.  That purported issue, however, is not ripe for decision.

   In northern Anne Arundel County, at the eastern end of the peninsula formed by the Magothy and Patapsco Rivers, and lying north of Bodkin Creek and south of Boyd Pond, is the 67.33 acre site known as Hickory Point.  In 1975 Morris M. Shuvalsky [***3] and Esther D. Shuvalsky (the Shuvalskys) owned and undertook the first development of the site.  At that time the Anne Arundel County subdivision regulations were those enacted by 1969 Laws of Anne Arundel County, [*121] Council Bill No. 76-69, § 2.  The relevant part was codified as § 13-113.4 of the Anne Arundel County Code (1967, Supp.1969) and provided: n1 
 
"[Final Plat] -- Subdivision Agreement

   "Prior to final plat approval, the subdivider shall file a subdivision agreement covering his financial obligations for all public construction and other improvements attendant to his subdivision, if not guaranteed by a public works agreement under section 13-122.  If a public works agreement has not been entered into and construction has not begun within two (2) years of the final plat approval, subdivision approval will be null and void. The subdivider will then be required to conform with the subdivision regulations in effect at that time.  Should there be no subdivision regulation changes during this two (2) year period, the plat would only be subject to final plat review.  For the final subdivision plat approval to remain in effect, the subdivider must be in operation under [***4] a public works agreement and be in continuous operation without interruption for not more than one (1) year at any given period of time.  An appropriate notice to title examiners shall be placed on the plat as follows in the event a public works agreement is not entered into prior to final approval.  A subdivision agreement permits the recording of the plat but no construction or sale of property as noted below."

n1 The relevant part is now codified, as amended, at Anne Arundel County Code (1985), Art. 26, § 2-405(d), (e).

   In March 1975 the Shuvalskys recorded a Declaration of Restrictions "for the purpose of creating and maintaining a general scheme of development," intending that the tract "be subject to the covenants, conditions, restrictions and reservations" set forth therein and reciting that the tract would "be subdivided into lots with streets and roads laid out, as will be shown on a Plat thereof."£ The Shuvalskys further reserved to themselves and their assigns "[t]he right to waive such portion of the [***5] protective covenants . . . [*122] as they deem necessary or desirable in the best interest of the development."£ The developers further declared that "[a]ll lot owners of the sub-division shall be entitled to [the] use in common with others of all communal open space and recreational areas[.]"£ The covenants expressly were to run with the land.

   [**628] Final plat approval for Hickory Point, Section One was obtained in October 1975.  Section One was presented on a vicinity plat and three detailed recorded plats, plat one (No. 3183), plat two (No. 3184) and plat three (No. 3185).  In lieu of a public works agreement at that time, the Shuvalskys bound themselves to Anne Arundel County, Maryland (the County) in the sum of $245,890 to guarantee completion of Section One, on or before September 5, 1977, "in the construction of all the streets, sidewalks, roads, curbs and all other improvements therein called for by the plans thereof[.]"

   Contemporaneously with the recording of the plats, the Shuvalskys recorded a Declaration of Covenants, Restrictions, and Affirmative Obligations applicable to Hickory Point, Section One.  That declaration contemplated formation of a civic association for the Hickory [***6] Point community which would take title to and maintain the open spaces and recreation areas in Section One.  The covenants and restrictions of that declaration expressly were to run with the land.  Ninety percent of the lot owners had power to amend the declaration and the Shuvalskys, for themselves and their assigns, reserved "the right in [their] absolute discretion to annul, waive, change, or modify any of the restrictions, conditions or covenants contained" in the declaration.

   In order to simplify the factual presentation, we shall limit our description of the platted areas at Hickory Point to plats one and two. n2£ The area presented on plat one lies [*123] south of Boyd Pond and north of Bayside Beach Road which curves to run in a northerly direction and also to form the eastern boundary of the plat one area.  The plan called for a street extending northwesterly from the portion of Bayside Beach Road on the eastern boundary of the site and ending in a cul-de-sac.  The building lots were laid out in a cluster development on both sides of the proposed street.  Between the rear lines of the individual lots and the perimeter of plat one were 8.148 acres of open space, much of [***7] which abutted Boyd Pond.

n2 Other areas in Hickory Point were the subject of recorded final plats after 1975 and one area benefited from a completed public works agreement.  Lots in other areas were also sold to homeowners. Nevertheless the issues raised by the Partnership can be adequately presented in terms of the facts bearing on plats one and two.

   Plat two depicts an area lying south of Bayside Beach Road.  The most northerly part of plat two is laid out in four lots (lots one, two, three and four of Block E) which abut a platted widening strip which, in turn, abuts the south side of Bayside Beach Road as then existing.  Abutting those four lots to the south are 1.304 acres designated as a "recreation area."£ The balance of 4.931 acres on plat two is marked "open space area."

   Prior to approval of plat two the Shuvalskys had conveyed the 1.304 acres of recreational area to the County's Planning and Zoning Officer "in [t]rust, to be conveyed to a citizens association in the area of 'Hickory Point, Section 1' community."£ [***8] Contemporaneously with the recording of the plats for Section One the Shuvalskys deeded all those parcels designated as communal open space on the plats of Section One to the County "in trust, to be conveyed to the Homeowners Association in the area of 'Hickory Point' community[.]"

   Plats one and two contain legends advising, inter alia, that the recreation area is dedicated to the recreation use of the residents of the subdivision; that the land designated as open space and recreation area is for use in common for the residents of the subdivision; that subdivision of the open space land is not permitted and its use is limited to parks, conservation, recreation, gardening and similar purposes or, [*124] with county health department approval, also as a secondary septic tank location; that ownership and maintenance of the open space land shall be in common and the responsibility of the homeowners association to be established; and that no sales shall be made or building permits issued until the necessary improvements have been guaranteed by a public works agreement.

   Based on preliminary plat approval, the Shuvalskys had obtained building permits [**629] to construct model homes on lots [***9] two, three and four of Block E of plat two.  In January 1976 the Shuvalskys conveyed those three lots to Triad Builders, Inc. (Triad).  At some point homes were constructed on the lots.  In the summer and fall of 1976 Triad conveyed the improved lots to homeowners, at least two of whom obtained purchase money mortgage loans from institutional lenders. n3£ Those homeowners and their mortgagees are among the appellees in this case.

n3 By a letter of January 1978 the Planning and Zoning Officer expressed the view that the three dwellings were sold in violation of subdivision regulations. In this connection, the Court of Special Appeals has held that an executory contract for the sale of a platted lot in violation of a Howard County subdivision regulation was not void per se as against public policy.  Montagna v. Marston, 24 Md. App. 354, 330 A.2d 502 (1975). The majority rule is that the failure of a subdivider to comply with subdivision regulations requiring the approval or recordation of plats prior to a conveyance does not render the conveyance void.  See Cox v. Mountain Vistas, Inc., 102 Idaho 714, 639 P.2d 12 (1981); Marriott Fin. Serv. v. Capitol Funds, 288 N.C. 122, 217 S.E.2d 551 (1975); Sienkiewicz v. Smith, 97 Wash.2d 711, 649 P.2d 112 (1982) (en banc); and see generally Annotation, Failure of Vendor to Comply With Statute or Ordinance Requiring Approval or Recording of Plat Prior to Conveyance of Property as Rendering Sale Void or Voidable, 77 A.L.R.3d 1058 (1977).

   We, however, need not address this issue as no party to this appeal contends that the apparent violation prevented the purchasing homeowners from acquiring good title.

   [***10] In November 1976 the Shuvalskys conveyed all of their remaining interest in Hickory Point to the Partnership.

   More than two years after final approval of plats one and two, the Partnership, in April 1978, entered into a public works agreement, No. 27-8, and guaranteed the performance, [*125] before May 15, 1980, of the public improvements reflected on those plats by posting an irrevocable letter of credit in the amount of $210,000.  No work was done under public works agreement 27-8, apparently because of rising interest rates.

   By a recorded agreement of November 1983 the County released the Partnership from its obligations to the County under public works agreement 27-8.  The parties further agreed that the County would continue to hold in trust all recreation areas and open space designated on plat two "for the use and benefit of the owners of Lots 2, 3 and 4 [in Block E on plat two] and for such other surrounding lot owners who may have already acquired any rights thereon[.]"£ That provision's recited purpose was "to provide adequate recreation and open space for the aforementioned lots, yet allow the Partnership at some future date to use any area in excess of statutory requirements [***11] toward [its] subdivision requirements" in the event the area of plats one and two was subsequently resubdivided.  The Partnership also agreed to indemnify the County with respect to liability arising out of the agreement or the County's actions thereunder.

   The Partnership then caused an engineering drawing to be prepared and spread upon the land records which was intended to reflect the Partnership's position concerning the existing subdivision status of Hickory Point.  The recorded drawing did not purport to be a final plat of resubdivision approved by the Office of Planning and Zoning. n4£ The Partnership also spread upon the land records a letter from an Assistant County Solicitor advising that all land covered by plats one and two, except that previously conveyed, had reverted to raw, unsubdivided status because the abrogation of public works agreement 27-8 "effectively nullified" those plats. One of the principal differences between the [*126] engineering drawing and the plats approved in 1975 was the elimination of the 8.148 acres of open space shown on plat one.  That open space was the ingress and egress to Boyd Pond by plat two lot owners on the south side of Bayside Beach [***12] Road.

n4 By the term "resubdivision," we mean a revised final plat which deviates from earlier approved plats, and not the "resubdivision" process of Anne Arundel County Code (1985), Art. 26, § 4-404.

   Apparently sensing a lack of enthusiasm among Hickory Point lot owners for the concept embodied in the engineering drawing, the Partnership filed the instant declaratory judgment action naming as defendants [**630] all known, interested persons and seeking to bind all unknown, interested persons.  The Partnership sought a declaration confirming boundary lines and titles as reflected on the engineering drawing and adjudicating certain previously recorded, approved subdivision plats, including plats one and two, to be "null and void."£ Because the engineering drawing contained "errors," i.e., it did not accurately reflect the concept intended by the Partnership, an amended complaint for declaratory judgment was filed.

   The amended complaint recited that the Partnership "has decided not to develop Hickory Point as originally [***13] contemplated on Plats [one, two and others] and seeks to clarify its rights under the law to own, use and possess the property shown on those plats free and clear of any right, title, claim or interest of the Defendants."£ Included in the relief sought by the Partnership was a declaration that, in effect, all of the land shown on plat one was "unsubdivided open acreage" owned by the Partnership and "unencumbered by any claim of the Defendants."£ The identical declaration was sought as to the following land on plat two:
 
"(1) Lot 1, Block E,
 
(2) The roadbed for Point Lookout Court, and
 
(3) A widening strip and roadbed for relocated Bayside Beach Rd., except that portion of the widening strip lying between existing Bayside Beach Road and Lots 2, 3, and 4, Block E
 
[*127] Items (2) and (3) were required to be deeded to the County as a condition to the approval of the contemplated development of Plat [two]."
 
Furthermore, the Partnership stated in its amended complaint that it did not seek to treat as unsubdivided open acreage "[t]he recreation area, open space and Lots 2, 3, and 4 on Plat [two]."

   The circuit court entered a declaratory judgment adjudicating that

   "1. The [***14] rights acquired by the property owners of Hickory Point Subdivision to the open space, recreational areas, roadways, road beds, and other improvements, designs, and plans on Plats [one, two and others] by virtue of their purchase of real property after the filing of those Plats precludes this Court from declaring the Plats null and void;

   "2. The property owners have the right to prohibit the development of the property referenced in Plats [one, two and others] in any way inconsistent with their rights under the Plats; and

   "3. Plats [one, two and others] remain in full force and effect and are not null and void with respect to the individual property owners of Hickory Point Subdivision."
 
The Partnership appealed and we issued the writ of certiorari prior to consideration of the appeal by the Court of Special Appeals.

   The legal position of those lot owner defendants who participated in the circuit court and before this Court is that grantees of lots in Hickory Point acquired "rights" because of recorded plats, the imposition of restrictive covenants and the deeds to the County, in trust.  They cite, for example, Boucher v. Boyer, 301 Md. 679, 484 A.2d 630 (1984) [***15] and Whittington v. Mann, 211 Md. 199, 126 A.2d 617 (1956) where particular parcels were held to have rights of way over specific courses by reference to subdivision plats. We have also enforced specific restrictive covenants against conduct violative, or imminently violative, of the covenants' [*128] restrictions.  See Turner v. Brocato, 206 Md. 336, 111 A.2d 855 (1955); Steuart Transp. Co. v. Ashe, 269 Md. 74, 304 A.2d 788 (1973). Rights of those types, whether considered to be rights in real estate, contract rights, or some combination of both, whether considered to be corporeal, incorporeal or some combination of both, and whether legally or equitably enforceable, or both, we shall refer to simply as "Property Rights."

   The Partnership's case in the circuit court proceeded on the theory that § 13-113.4, by operation of law, abrogated any and all Property Rights which a lot purchaser may have acquired in any part of Hickory Point outside that purchaser's lot if the Property Rights were in whole or in [**631] part dependent upon reference to a previously recorded subdivision plat. This result [***16] was said to be produced by the language: "If a public works agreement has not been entered into and construction has not begun within two (2) years of the final plat approval, subdivision approval will be null and void." n5

n5 Although there are homeowners in Hickory Point, there is no formal homeowners' association.  The homeowners have not demanded a conveyance from the County of the property held by it in trust.  The Partnership does not directly come to grips with the effect of the trust deeds but its position in the circuit court seems to have been that it could redesign the layout of plat one unrestricted by the conveyance of the open space reflected thereon.  The County's position on this point in the circuit court was that it did not know what it was going to do with that property and that the County would leave the problem's resolution in the circuit court's hands.

   Here, as to plats one and two, the developer neither entered into a public works agreement nor began construction within two years of final plat [***17]approval.  Under those circumstances "subdivision approval" became null and void. Section 13-113.4 stated the consequence to be that "[t]he subdivider will then be required to conform with the subdivision regulations in effect at that time."£ The terms of the ordinance indicate no design directly to extinguish Property Rights of lot purchasers which might have arisen after final subdivision approval and prior to the expiration of the two [*129] years. To construe § 13-113.4 as the Partnership initially sought would be contrary to the purpose underlying subdivision regulation which is to protect both the community as a whole and individual purchasers in the subdivision.  See Board of County Comm'rs v. Gaster, 285 Md. 233, 246-47, 401 A.2d 666, 673 (1979) (quoting from 4 A. Rathkopf, The Law of Zoning and Planning ch. 71, § 2, at 71-6 to -7 (4th ed. 1979)); E. Yokley, Yokley's Law of Subdivisions ch. 1, § 2, at 2 (2d ed. 1981).  Thus, the circuit court was correct in entering a declaratory judgment adverse to the Partnership insofar as the declaratory judgment rejected the extreme position advanced by the Partnership in the circuit court. [***18]

   Beyond that limited declaration, however, this action does not present issues which are ripe for adjudication.  In order for issues of claimed deprivation of Property Rights to arise, there must first be one or more features of a new plan of subdivision, approved or imminently to be approved under the current regulations, which differ from one or more features of a nullified subdivision plat, of the restrictive covenants or of the trust deeds. That kind of deviation could arise because it is required by current regulations or because current regulations give the Partnership an option and the Partnership opts for the deviation.  Here, there has been no resubmission to the County's subdivision process much less any approval of a new plan of subdivision so that there is no conflict with claimed Property Rights of Hickory Point lot owners at the present time.  Thus, the issues presented for adjudication are not ripe.

   A controversy is ripe when "'there are interested parties asserting adverse claims upon a state of facts which must have accrued wherein a legal decision is sought or demanded.'"£ See Boyds Civic Ass'n v. Montgomery County Council, 309 Md. 683, 690, 526 A.2d 598, 601 (1987) [***19] (quoting Patuxent Oil Co. v. County Comm'rs, 212 Md. 543, 548, 129 A.2d 847, 849 (1957), in turn quoting from 1 W.H. Anderson, Actions for Declaratory Judgments § 17 (2d ed. 1951)) and cases cited therein.  "[T]he declaratory judgment [*130] process is not available to decide purely theoretical questions or questions that may never arise, . . . or questions which have become moot, . . . or merely abstract questions . . . ."£ Hamilton v. McAuliffe, 277 Md. 336, 340, 353 A.2d 634, 637 (1976) (citations omitted).  Nor should it be employed "where a declaration would not serve a useful purpose or terminate a controversy . . . ."£ Id.£ To address issues which are non-justiciable because they are not ripe "would place courts in the position of rendering purely advisory opinions, a long forbidden practice in this State."£ Hatt v. Anderson, 297 Md. 42, 46, 464 A.2d 1076, 1078 (1983).

   "[**632] Generally, an action for declaratory relief lacks ripeness if it involves a request that the court '"declare the rights of parties upon a state of facts which has not yet arisen, [or] upon a matter which is future, [***20]contingent and uncertain."'"£ Boyds Civic Ass'n, 309 Md. at 690, 526 A.2d at 602 (quoting Brown v. Trustees of M.E. Church, 181 Md. 80, 87, 28 A.2d 582, 586 (1942), in turn quoting from Wahl v. Brewer, 80 Md. 237, 243, 30 A. 654, 655 (1894)). See, e.g., Hatt, 297 Md. at 47, 464 A.2d at 1079 (a declaration of invalidity as to a county regulation which prohibited firefighters from criticizing their superior officers was dismissed on lack of ripeness grounds because "there [was] no indication that [plaintiff had] been ordered to do, or not do, anything under the regulation"); Hamilton, 277 Md. 336, 353 A.2d 634 (order directing Jehovah's Witness to submit to an emergency blood transfusion could not be challenged eleven months later when the record contained no indication that plaintiff would require future transfusions).

   The purpose of the ripeness doctrine
 
"is to prevent premature judicial interference with government action and to avoid entanglement in abstract, poorly defined disputes.  The mature, focused conflict not only [***21] affords the Court an informing perspective on the actual working or impact of laws, a view not available in the legislative process, but also provides the Court with [*131] greater choice among the grounds for decision, an opportunity thus to decide in the narrowest compass."
 
Albert, Justiciability and Theories of Judicial Review: A Remote Relationship, 50 S.Cal.L.Rev. 1139, 1155 (1977). "The disagreement" over which declaratory relief is sought "must not be nebulous or contingent but must have taken on fixed and final shape so that a court can see what legal issues it is deciding, what effect its decision will have on the adversaries, and some useful purpose to be achieved in deciding them."£ Public Serv. Comm'n v. Wycoff Co., 344 U.S. 237, 244, 73 S.Ct. 236, 240, 97 L.Ed. 291, 296 (1952).

   Professor Borchard has described the ripeness concept in terms of a "series of labels":
 
"In general, it may be said that the facts on which a legal decision is demanded must have accrued, for the principle of a declaratory judgment is that it declares the existing law on an existing state of facts.  The danger or dilemma [***22] of the plaintiff must be present, not contingent on the happening of hypothetical future events . . . and the prejudice to his position must be actual and genuine and not merely possible or remote.  When the complaint on these tests is considered premature, the dismissal may be explained by any one of a series of labels, e.g., that there is as yet no 'controversy,' that the issue is hypothetical, that the result would be only an advisory opinion, etc."
 
E. Borchard, Declaratory Judgments 56 (2d ed. 1941).

   The unsettled situation in the case at bar is somewhat analogous to Patuxent Oil Co. v. County Comm'rs, 212 Md. 543, 129 A.2d 847 (1957), where a plaintiff-oil company sought a declaration as to its rights and those of the County government with respect to the use of a pipeline under a public wharf in Anne Arundel County.  The plaintiff was assignee of a revocable license granted by the County to erect and use a pipeline under a public wharf.  The license was abandoned and terminated by plaintiff when it discontinued its pipeline use. Several years later, plaintiff sought to reactivate the pipeline and discovered it needed repairs.  The County [***23] notified plaintiff not to replace or repair the old [*132] pipeline until a new license agreement was reached between the parties.  The record showed that plaintiff had yet formally to request a renewal of the license and that the parties had only entered into negotiations as to the terms of the agreement.  The Court affirmed a decree sustaining a demurrer to the bill of complaint and stated:
 
"At no place is it alleged or contended that the commissioners have exercised their judgment and discretion and desire to grant a revocable license. In this state of the negotiations or proceedings, [**633] no definite or specific issue is presented at this time since many of the important facts have not yet developed to the point which presents an actual controversy which we can decide."
 
Id. at 551, 129 A.2d at 851.

   The instant case may be distinguished from Boyds Civic Ass'n, 309 Md. 683, 526 A.2d 598, where we considered whether master plan amendment procedures complied with State and Montgomery County law.  The plan amendment recommended certain property in a residential zone as suitable for commercial use as a Mineral Resource [***24] Recovery Zone.  A prerequisite to that zoning is that the master plan recommend that use for the property in question.  The County argued that the action lacked ripeness since the challenged amendment to the master plan merely authorized the zoning authority to grant an application for Mineral Resource Recovery Zoning but did not require the zoning authority to do so.  In holding that the action was justiciable, we said:
 
"Here . . . the challenged plan amendment was initiated, approved, and adopted in furtherance of an actual, pending application to amend the local zoning map. Moreover, the designation of an area on the applicable master plan as suitable for a Mineral Resource Recovery Zone was a condition precedent to the granting of an application for zoning of an area as a Mineral Resource Recovery Zone . . . .  The prospect of a controversy, therefore, lay well beyond the realm of matters 'future, contingent and uncertain'."
 
[*133] Id. at 697, 526 A.2d at 605. Here, unlike the Boyds Civic Ass'n scenario, the Partnership has yet to obtain any subdivision reapproval.

   Further, it is possible that an approved plan of resubdivision for [***25]Hickory Point will conflict with a claimed Property Right of one or more appellees simply because the deviation is required by changes in regulations which have come about after the earlier approval.  The Planning and Zoning official who administers the subdivision review process testified:
 
"The developer would have to submit new subdivision plans starting from scratch for those areas that are not platted.  He would have to conform with current zoning as well as the Chesapeake Bay Critical Area criteria as set forth by Bill 90-86.  Also since the subdivision was approved, the County has enacted stormwater management laws and regulations relative to the release of stormwater into chartered waters and also an adequate facilities ordinance has been passed and submitted.  The developer would have to address adequate facilities issues before final subdivision could be approved."
 
These new regulations appear to be exercises of the power delegated by the State to the County to legislate for the common good, including the protection of public health and of the environment.  The lot owners of Hickory Point are not shielded from exercises of regulatory power solely because their prior [***26]relationship with the Partnership and its predecessor in title may have given rise to Property Rights in the lot owners.  Cf. Dawe v. City of Scottsdale, 119 Ariz. 486, 581 P.2d 1136 (1978) (en banc) (recording of subdivision plat did not give landowners a vested right to develop unimproved property in accordance with plat and contrary to subsequently enacted subdivision ordinance); Sherman-Colonial Realty Corp. v. Goldsmith, 155 Conn. 175, 183, 230 A.2d 568, 572 (1967) ("The mere filing of maps for the subdivision of a parcel of real estate does not necessarily immunize the subject property from the operative effect of subsequent subdivision regulations."); Weber v. Village of [*134] Skokie, 92 Ill.App.2d 355, 235 N.E.2d 406 (1968) (platting statute did not vest rights in property owners so as to permit use of property in accordance with recorded plats contrary to certain minimum area requirements of a subsequently enacted zoning ordinance); Blevens v. Manchester, 103 N.H. 284, 170 A.2d 121 (1961) (the fact that a subdivider has recorded plats approved [***27] under a prior statute does not give rise to vested rights exempting the subdivider from the operation of subsequently enacted subdivision ordinance); State ex rel. Mar-Well, Inc. v. [**634] Dodge, 113 Ohio App. 118, 122, 177 N.E.2d 515, 519 (1960) ("The mere fact that an allotment plat is approved and recorded does not irrevocably fix the rights of the parties.  Valid changes may thereafter be made in the zoning regulations, and the allotter must conform thereto."); In re McCormick Management Co., 547 A.2d 1319 (Vt.1988) (filing plats before adoption of zoning ordinance created no vested rights to develop in accordance with filed plats and contrary to zoning ordinance).  But any conflict between new regulations and claimed Property Rights cannot be resolved in the abstract.

   The Partnership's reply brief essentially recognizes the lack of ripeness. It also submits that the circuit court erred by entering a decree which was incomplete and ambiguous, defects which we are urged to cure by remand and not by modification.  The Partnership
 
"respectfully submits that it would be inappropriate for the [Court of Appeals] to [modify the judgment] [***28] in the case sub judice because the record is voluminous and the further declaratory relief prayed is dependent upon a complex and variable interplay of local zoning law, existing land use, alternative development possibilities and potentially conflicting rights and wishes of lot and home owners in the subdivision."
 
Appellant's Reply Brief at 20-21.  For the reasons stated above, a remand would not make this case ripe for adjudication.

   We interpret the argument to mean that the Partnership desires the opportunity to flesh out the record on remand [*135] by presenting more clearly to the circuit court the precise points of conflict between whatever plan of development the Partnership is then proposing and any claimed Property Rights of the appellees.  That approach, however, perpetuates another defect in this action, that of putting the judicial cart before the administrative horse. On a remand for retrial there would still be no approved resubdivision before the circuit court.  Counsel for the Partnership frankly acknowledged at oral argument that the Partnership does not desire to expend time and effort in the subdivision process if lot owners in Hickory Point can prevent [***29] an approved product of the subdivision process from being implemented.  The circuit court, however, cannot exercise the administrator's discretion and cannot review subdivision submissions in the first instance.  The strategy which the Partnership would like to pursue violates the principle requiring administrative remedies to be exhausted.  See Md. Code (1974, 1984 Repl.Vol.), § 3-409(b) of the Courts and Judicial Proceedings Article; see generally Secretary, Maryland Dep't of Human Resources v. Wilson, 286 Md. 639, 644, 409 A.2d 713, 717 (1979) ("This Court has consistently held that because, under the Declaratory Judgment Act, statutory administrative remedies are exclusive, the administrative procedures established must be exhausted before a litigant may seek declaratory relief from a trial court."); Prince George's County v. Blumberg, 288 Md. 275, 292, 418 A.2d 1155, 1165 (1980), cert. denied, 449 U.S. 1083, 101 S.Ct. 869, 66 L.Ed.2d 808 (1981) ("An administrative remedy 'is not "inadequate" so as to authorize judicial intervention before exhaustion of the remedy merely [***30]because it is attended with delay, expense, annoyance, or even some hardship.'").  The Partnership's criticism of the declaratory judgment actually entered will not be cured by a remand for further proceedings.

   We do, however, agree with the Partnership that the declaratory judgment is at least ambiguous, and perhaps overly broad.  The absence of justiciable issues presented by the Partnership reflects itself in the judgment's generality. [*136]The circuit court should have limited the judgment to one declaring the converse of the legal conclusion sought by the Partnership.  Pursuant to Maryland Rule 8-604(a)(4) we modify the declaratory judgment to read:
 
"The failure of Hickory Point Partnership, of its predecessors in title, or of both of those interests, to execute one or more public works agreements applicable to any part of Hickory Point or to begin and continue the construction of improvements as required by one or more public works agreements applicable to any part [**635] of Hickory Point did not have the legal effect, solely by the operation of Anne Arundel County Code (1967, Supp. 1969), § 13-113.4, of nullifying rights, if any, acquired by grantees of lots in Hickory Point, [***31] their heirs, personal representatives, successors and assigns, which extend beyond the respective lot lines of those grantees and which are based in whole or in part upon one or more recorded, final subdivision plats of Hickory Point, or of any part thereof, including, by way of illustration and not by way of limitation, rights based upon a common scheme of development, upon any legends set forth on any one or more of the above-described plats, upon recorded restrictive covenants, or upon any deed to Anne Arundel County, Maryland, or to any of its officers or employees, in trust, for the benefit of lot owners, or of any incorporated or unincorporated association of lot owners, in Hickory Point."

   JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY MODIFIED, AND AS MODIFIED, AFFIRMED.  COSTS TO BE PAID BY THE APPELLANT. 

Michael Gregory WOODS v. STATE of Maryland 
No. 98, September Term, 1988
 
Court of Appeals of Maryland
 
315 Md. 591; 556 A.2d 236; 1989 Md. LEXIS 55

 April  10, 1989

   SUBSEQUENT HISTORY: [***1] As Amended April 28, 1989.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to Court of Special Appeals, H. Chester Goudy, Jr.

DISPOSITION: JUDGMENTS OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED; COSTS TO BE PAID BY APPELLANT.

CORE TERMS:  woods, sentence, confession, dynamite, parole, murder, arrest, death penalty, sentencing, explosive, possibility of parole, detective, imprisonment, accomplice, blow, life imprisonment, probable cause, corpus delicti, felony, stick, corroborated, notice, team, corroboration, judicial officer, sentence of life imprisonment, sentencing proceeding, attempted murder, convicted, cartridge

COUNSEL: Argued by Clarence W. Sharp, Assistant Public Defender (Alan H. Murrell, Public Defender, both on brief), both of Baltimore, Maryland for appellant.

   Argued by Richard B. Rosenblatt, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, both on brief), both of Baltimore, Maryland for appellee.

JUDGES: Eldridge, Cole, Rodowsky, McAuliffe, Adkins and Blackwell, JJ., and Charles E. Orth, Jr., Associate Judge of the Court of Appeals of Maryland (Retired) Specially Assigned.

OPINIONBY: ORTH, JR.

OPINION: [*595] [**238] A saga of revenge and murder for hire unfolds on this appeal.  The principals are:

   Michael Kevin Boyd, the victim, and abuser of his wife,

   [*596] Jody Boyd, who offered a contract for the murder of her husband to 
 
   Michael Gregory Woods, who accepted the contract and assembled a hit team consisting of

   Donald Dare, and

   James Hayes, a youth 15 years of age, who turned State's witness.

   Jody Boyd decided that the best solution to her marital problems, [***2] marked by physical abuse inflicted by her husband, was to have him killed.  She asked Woods to do the job, offering to pay him for his services out of monies she expected to receive upon her husband's death.  After mulling over the proposition, Woods agreed to perform the murder on the terms offered.  He sought and obtained the assistance of Dare and Hayes.  Time went by with nothing being done because the team could not settle upon the best way to fulfill the agreement.  Under pressure from Jody "to complete the job," the team "came up with the idea to blow [the husband's] car up with dynamite," but "this attempt failed." n1£ The team "decided that the only for sure way to get rid of [the husband] was to shoot him."£ They got a gun "suitable for the job" from Dare's house and then "had to think of a way to shoot [the husband]."£ At first, they were going to shoot him when he arrived home from work, but "cancelled that plan" because "[t]here was too much daylight out."£ Woods and Dare contacted Jody to get her thoughts on the matter.  At her suggestion, arrangements were made to set the husband up by her [**239] persuading him to leave the couple's apartment at 10:00 p.m. on a certain day [***3] to fetch something to eat from a fast-food store.  The team went to the Boyds' apartment complex on the agreed day shortly before the designated time.  The husband left the apartment about 10:00 p.m. as planned.  Woods hid next to a truck that was parked near the [*597] husband's car.  Dare hid nearby.  Woods recounted the succeeding events:
 
I then had to wait for him to come back.  He came back approximately twenty minutes later.  He got out of his car and started walking towards the building. He walked about ten yards towards the building, which brought him full view where I could see him.  He was approximately fifteen yards away when I fired. Hoping I was doing the right thing for Jody's situation, I aimed the gun at him and squeezed the trigger a few times.
 
Woods ran back to Dare's car in which the team had been driven by Dare to the murder scene.  On the way Woods heard the husband scream.  Hayes was to have the car "running and waiting for us."£ Dare had already arrived back at the car. Dare drove the team to Woods' house to "change and wash up."£ They decided "the best thing to do was to burn our clothes."£ The next day Woods burned his clothes.

n1 Quotations in our narrative of events are from the statement given by Woods to the police.

[***4]

    The husband died.  The cause of death was four gunshot wounds.  Although in his statement to the police Woods said that he threw the gun into the Magothy River, a .32 caliber automatic handgun, recovered from Woods' home, proved to be the weapon that fired the bullets that killed Michael Kevin Boyd.

   Woods was charged with the murder of Michael Kevin Boyd and with a spate of offenses related to the homicide and his contract with Jody Boyd.  The case came up for trial in the Circuit Court for Anne Arundel County.  Woods opted not to be tried by a jury and placed his fate in the hands of the judge.  The judge found him guilty of murder in the first degree (count 1 of the indictment); attempted murder (count 4); conspiracy to dynamite an automobile (count 6); and using a handgun in the commission of the felony of murder (count 7).  The following sentences were imposed:
 
1st count -- "to the term of [his] natural life without parole";
 
4th count -- "to a concurrent life term";
 
[*598] 6th count -- to a "period of one year concurrent";
 
7th count -- "to a period of five years . . . consecutive to the first count."

   I

   Woods claims that the sentence of life imprisonment without parole [***5] is illegal.

   (A)

   The State suggests that the matter of the illegality of the sentence was not preserved for appellate review because Woods did not object when it was imposed. Md.Rule 8-131.  We said in Walczak v. State, 302 Md. 422, 488 A.2d 949 (1985), that
 
when the trial court has allegedly imposed a sentence not permitted by law, the issue should ordinarily be reviewed on direct appeal even if no objection was made in the trial court.  Such review and correction of an illegal sentence is especially appropriate in light of the fact that Rule 4-345(a) . . . provides that "[t]he court may correct an illegal sentence at any time."
 
Id. at 427, 488 A.2d 949. We see no sound reason why we should not review the illegality of the sentence on this appeal.

   (B)

   The State did not seek to have Woods executed.  But it did want him imprisoned for life without the possibility of parole. It so notified him.  As we have seen, the State obtained what it sought.

   (1)

   Woods urges that the legislature intended that a sentence of life without parole may be imposed only upon the sentencing proceedings set out in Maryland Code (1957, [***6] 1987 Repl.Vol., 1988 Cum.Supp.), Art. 27, § 413.  The key to legislative "intent" is the purpose of the legislation, determined in the light of the statute's language and context.  Kaczorowski v. City of Baltimore, 309 Md. 505, 516, 525 [*599] A.2d [**240] 628 (1987). The legislative scheme shines bright and clear from the plain and unambiguous language of §§ 412 and 413 of Art. 27 and Maryland Rules 4-341 and 4-342 adopted to implement them as authorized by Art. 27, § 413(l), as illuminated by the legislative history of the statute.  Review of these materials makes plain that the legislative intent was not what Woods would have it be.

   One of three sentences is authorized upon conviction of murder in the first degree:
 
1) death; or
 
2) imprisonment for life without the possibility of parole; or
 
3) imprisonment for life.
 
Maryland Code, Art. 27, § 412(b).  See Md. Const., Art. III, § 60. n2£ If the State seeks a harsher penalty than the basic imprisonment for life, it must so notify the defendant at least 30 days prior to trial.  Art. 27, § 412(b).  The notice may go only to the death penalty, or only to imprisonment for life without [***7] the possibility of parole, or to death and, in addition thereto, imprisonment without the possibility of parole. Id.£ If the State does not give notice that it is seeking a more severe penalty than life imprisonment, the court may proceed to sentence as it generally does in imposing a penalty authorized upon conviction of any other offense, except for mandatory sentences for crimes of violence as prescribed by Art. 27, § 643B or other statutes. When, however, the State gives notice that it is seeking a harsher sentence than life imprisonment, there must be a separate sentencing proceeding. If the notice goes only to life imprisonment without the possibility of parole, the separate sentencing proceeding is before the court -- a jury is not involved.  Maryland Rule 4-342(b) provides:

   [*600] When a defendant has been found guilty of murder in the first degree and the State has given timely notice of intention to seek a sentence of imprisonment for life without the possibility of parole, but has not given notice of intention to seek the death penalty, the court shall conduct a separate sentencing proceeding as soon as practicable after the trial to determine whether to impose [***8] a sentence of imprisonment for life or imprisonment for life without parole.
 
This is in accord with Art. 27, § 413(k)(5) and (8). n3

n2 Maryland Const., Art. III, § 60 gives the General Assembly

   the power to provide by suitable enactment . . . for the release upon parole in whatever manner the General Assembly may prescribe, of convicts imprisoned under sentence for crimes.
 
It follows that the General Assembly may forbid release upon parole.

 

n3 Subparagraph (8) of Maryland Code (1957, 1987 Repl.Vol., 1988 Cum.Supp.), Art. 27, § 413(k) was added by Acts 1988, ch. 418.  It seems that it merely repeats the substance of subparagraph (5).

   When a defendant has been found guilty of murder in the first degree and the State has given the required notice that a sentence of death is sought (be it the only sentence sought or be it sought in conjunction with a sentence of imprisonment for life without parole) so that the defendant may be subject to a sentence of death, the separate sentencing proceeding is much [***9] more elaborate.  See Maryland Rule 4-343.  The proceeding shall be conducted before a jury unless a jury sentencing is waived by the defendant.  Art. 27, § 413(b). Detailed prescriptions are set out in Art. 27, § 413 concerning evidence, argument and instructions, paragraph (c); consideration of aggravating circumstances (d); definitions (e); a finding that no aggravating circumstances exist (f); consideration of mitigating circumstances (g); weighing mitigating and aggravating circumstances (h); the determination of the sentence (i); the statements required in the determination (j); and the imposition of the sentence (k).  See Md.Rule 4-343(e).

   It is obvious that the legislature established two separate and distinct procedures for sentencing when a person is convicted of murder in the first degree -- one when the person is subject to the death penalty and the other when he is not subject to execution but is subject to incarceration for [**241] life without parole. The former procedure calls for the [*601] proceedings set out in such fine detail and a jury unless a jury is waived.  The latter procedure is in the sound discretion of the trial judge.  All references in Art. 27, [***10] § 413 to the elaborate proceedings are in the frame of reference of the death penalty. See, for example, paragraph (a); paragraph (c)(2); paragraph (f); paragraph (h)(2) and (3); and paragraph (k)(1), (2), (3), (4), and (6).

   The legislative history of H.B. 693, which was enacted as Acts 1987, ch. 237 and codified as Art. 27, §§ 412 and 413 supports our reading of the statutory text.  The bill added imprisonment for life without the possibility of parole as a penalty for first degree murder. It was "a compromise bill" favored by support from prosecutors, the Public Defender, and others.  See Senate Judicial Proceeding Committee, Summary of Committee Report from the Committee Report System of the Department of Legislative Reference, 1987 General Assembly of Maryland at 3.  The Report, over the signature of the Committee Chairman, observed:
 
Life imprisonment without the possibility of parole is needed as a sentencing option in first degree murder cases because there are people committing heinous crimes; for example, serial killers, who are not eligible for the death penalty. In addition, a death penalty proceeding is a long, expensive process and a tremendous drain on [***11] resources.  Life without parole would be less costly and would have the effect of preventing the defendant from killing again. 
  
Id.  See also the "Bill Analysis" of H.B. 693 submitted by the Department of Legislative Reference to the Senate Judicial Proceedings Committee.  It is perfectly apparent that the legislature did not intend that the sentencing scheme of § 413 be utilized with respect to a sentence of life without parole. The contention of Woods to the contrary is without merit.

   (2)

   Woods declares that if the proceedings called for by § 413 do not apply to a sentence of life without parole, then [*602] the sentence is unconstitutional.  At this point his argument becomes rather difficult to follow.  He concedes that his contention is not one "claiming that the penalty of life imprisonment for first degree murder without parole is, in and of itself, a constitutionally impermissible cruel and unusual punishment."£ He states:
 
Such is not the case for certainly, if the sentence of death is constitutionally permissible when suitably directed, limited and guided by objective consideration of both the offense and the offender, then a sentence of life imprisonment [***12] without parole would be constitutionally permissible if similarly imposed.
 
He explains that his
 
point is that, in this case, where the State gave notice of intent to seek the sentence of life without parole and no other, the statute's silence on the matter of direction, limitation and guidance in the request for and imposition of this sentence renders the sentence and the statutory authorization of the sentence constitutionally impermissible.
 
He seeks to apply to a life sentence without parole the reasoning of cases which have held the death penalty to be unconstitutional.  "In short," he states,
 
the constitutional challenge in this appeal is limited to the factual setting of this case.  We are not addressing the imposition of the sentence of life imprisonment without parole when the State seeks the sentence as part of an alternative to the death penalty and a full death penalty sentencing hearing is held.
 
He continues:
 
Nor does this appeal address the issue of imposition of the sentence of life imprisonment without the possibility of parole in such a case on the basis of any procedural infirmity or a proportionality analysis.

   The essence of Wood's complaint [***13] seems to be that when, as here, a life sentence without parole is imposed without following the procedures required for a sentence of death, it [*603] is unconstitutionally void for [**242]vagueness n4 as offending due process of law.  If it violates due process of law, Woods appears to reason it is cruel and unusual punishment. n5

n4 Woods recognizes that the vagueness doctrine "usually turns on the statute's definition of criminal conduct," that is, whether "the statutory language does not give fair notice or inform the citizen of those acts or conduct which are forbidden."£ He concedes that this is not the concern here. But without the citation of persuasive authority, he would have the doctrine extended to cover the lack of statutory specificity as to sentencing procedures in the judge's determination whether to incarcerate a defendant for life with no eligibility for parole.

n5 "[C]ruel and unusual punishments [shall not be] inflicted."£ U.S. Const. amend. VIII.
 
We the People of the State of Maryland . . . declare . . . That . . . cruel or unusual punishment [shall not be] inflicted, by the Courts of Law.
 
Md. Dec. of Rights, Art. 25.

[***14]

   As best we can understand Woods' argument, he believes that the legislative scheme for the imposition of a life sentence without parole is vague because it is "ambiguous" or "arbitrary."£ It is "ambiguous" or "arbitrary" because it lacks the guidelines provided for the death penalty. He avers that
 
when notified of the State's intent to seek the sentence of life imprisonment without the possibility of parole, [he] had to guess at the sentencing procedures if he was convicted of the crime of first degree murder.
 
That, of course, is simply not so.  Although limited here to a choice between life imprisonment or life imprisonment without parole, the judge otherwise would be guided by the same consideration and restrictions as in the imposition of any sentence other than the death penalty or a sentence required to be mandatory. The discretion a judge may exercise in sentencing has long been firmly established and consistently applied.  In the absence of statutory mandates, "[n]othing in the law requires that Guidelines sentences or principles be applied; they complement rather than replace the exercise of discretion by the trial judge."£ Teasley v. State, 298 Md. 364, 370, 470 A.2d 337 (1984). [***15]We laid it all [*604] out in Smith v. State, 308 Md. 162, 517 A.2d 1081 (1986). We noted in Smith that "a sentencing judge is vested with virtually boundless discretion."£ Id., 308 Md. at 166, 517 A.2d 1081, quoting Logan v. State, 289 Md. 460, 480, 425 A.2d 632 (1981). We explained:
 
The sentencing judge is accorded this broad latitude to best accomplish the objectives of sentencing -- punishment, deterrence and rehabilitation.  A sentence should be premised upon both the facts and circumstances of the crime itself and the background of the individual convicted of committing the crime. The strict rules of evidence do not apply at a sentencing proceeding . . . .
 
Smith, 308 Md. at 166, 517 A.2d 1081 (citations omitted).  We looked to Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949):
 
"A sentencing judge . . . is not confined to the narrow issue of guilt.  His task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the [***16] issue of guilt has been determined.  Highly relevant -- if not essential -- to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics.  And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial."
 
Smith, 308 Md. at 167, 517 A.2d 1081, quoting Williams, 337 U.S. at 247, 69 S.Ct. at 1083. We cautioned, however:
 
There are, of course, some restrictions placed upon the judge presiding at the sentencing proceeding. A sentence cannot violate any constitutional requirements such as the prohibition against cruel and unusual punishment; the sentencing judge cannot be motivated by prejudice, ill-will or any other impermissible considerations; and the sentence itself cannot exceed any limitation set by statute.  In addition to these limitations, the prosecution [*605] must disclose to the defendant [**243] or counsel [***17] any information the State plans to present before the judge for consideration in sentencing. Such notice affords a defendant the opportunity to refute or discredit this information.
 
Id., at 169-170, 517 A.2d 1081 (citations omitted).  See Reid v. State, 302 Md. 811, 490 A.2d 1289 (1985). The legislature may, of course, circumscribe the judge's discretion as it has done with respect to the death penalty. But the plain and unambiguous language of Art. 27, §§ 412 and 413 and Maryland Rules 4-341 and 4-342 leave no doubt that the legislature intended that the imposition of a life sentence without parole shall remain under traditional sentencing procedures.  This scheme does not offend the federal Constitution, and the Maryland Constitution bestows upon the General Assembly the power over parole "in whatever manner the General Assembly may prescribe."£ See note 2, supra.

   (3)

   Woods contends: "It is entirely appropriate to look to the death penalty cases in the Supreme Court to determine the constitutionality of the Maryland statute . . . ."£ Woods relies on the Supreme Court's analysis of death penalty statutes but he asks this Court to [***18] ignore the basis of the Supreme Court's decisions.  In Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), n6 the justices clearly were compelled by the "uniquely and unusually severe punishment" of death.  408 U.S. at 305, 92 S.Ct. at 2760 (Brennan, J., concurring).  Justice Stewart in his concurrence expressed the fundamental distinction:

   The penalty of death differs from all other forms of criminal punishment, not in degree but in kind.  It is unique in its total irrevocability.  It is unique in its rejection of rehabilitation of the convict as a basic purpose [*606] of criminal justice.  And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.
  
Furman, 408 U.S. at 306, 92 S.Ct. at 2760. See State v. Davis, 310 Md. 611, 624-625, 530 A.2d 1223 (1987), quoting Justice Brennan dissenting in Hutto v. Davis, 454 U.S. 370, 373, 102 S.Ct. 703, 705, 70 L.Ed.2d 556 (1982).

n6 Justice Douglas, Justice Brennan, Justice Stewart, Justice White, and Justice Marshall filed separate opinions in support of the judgments.  Chief Judge Burger, Justice Blackmun, Justice Powell, and Justice Rehnquist filed separate dissenting opinions.

[***19]

   In essence, Woods argues that a life sentence without the possibility of parole is relatively the equivalent of death itself.  The Supreme Court in Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976), again drew the distinction:
 
Death, in its finality, differs more from life imprisonment than a 100 year prison term differs from one of only a year or two.  Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.
 
Woodson, 428 U.S. at 305, 96 S.Ct. at 2991. Furthermore, we observe that the Governor, upon due notice
 
may pardon any person, convicted of crime, on such conditions as he may prescribe, or he may upon like notice remit any part of the time for which any person may be sentenced to imprisonment on such like conditions without such remission operating as a full pardon to any such person.
 
Maryland Code (1957, 1986 Repl.Vol., 1988 Cum.Supp.), Art. 41, § 4-513.  See § 4-516(b)(3)(ii) and § 4-514.  But,
 
[***20] [i]f eligible for parole . . . an inmate serving a term of life imprisonment . . . shall only be paroled with the approval of the Governor.
 
Code, Art. 41, § 4-516(b)(4).  We note that the Governor may, upon due notice, "commute or change any sentence of death into penal confinement for such period as he shall think expedient."£ Art. 41, § 4-513.  See Md. Const., Art. II, § 20. But, of course, once a person has been executed, he is beyond the mercy of the Governor.  We do not agree [*607] with the notion that a life sentence without the possibility of parole [**244] is, even relatively, the equivalent of death itself.  The death penalty cases cited by Woods to support this view are simply inapposite.

   (4)

   At the penalty stage of the trial, the court conducted a separate sentencing proceeding. The judge had before him "a packet of documents."£ Included in the packet were a booklet showing Woods' participation "in a ministry program at the Anne Arundel Detention Center while he [was] incarcerated there," and "two letters of recommendation or character-type references from officers at the . . .  Detention Center on behalf of Mr. Woods."£ The judge also had, and considered, a presentence [***21] investigation report from the Department of Parole and Probation, a letter from the Reverend Gerald Kurek of St. Mary's Church "with regard to his involvement" with Woods, and a number of "individual character reference letters from friends and acquaintances" of Woods, "[a]ll of which speak very highly" of him.  Defense counsel submitted two psychological reports of examinations made of Woods which tended to explain his actions. Woods' father (who was subjected to vigorous cross-examination) and his mother testified under oath on behalf of their son, as did the minister of Lake Shore Baptist Church.  Woods personally and through counsel made a statement and presented information in mitigation of punishment pursuant to Maryland Rule 4-342(e).  The prosecutor was heard.  It is apparent that there was a plenary hearing separately conducted by the court on the matter of the sentence to be imposed.

   We conclude that the sentence of life imprisonment without parole imposed on the conviction of Woods for murder in the first degree did not offend the Constitution of the United States or the Constitution of Maryland.  It neither denied him due process of law nor subjected him to cruel and [***22] unusual punishment.  All the required procedures were followed by the court in imposing the sentence. The sentence [*608] is in accord with legislative enactments and the rules adopted by this Court.  It is not contrary to the case law of this State.  In short, the sentence of life imprisonment without possibility of parole imposed on Woods was legal.

   II

   Woods next attacks all of the judgments entered against him.  The basis of his challenge is that the court erred in denying his motion to suppress evidence. n7£ At the hearing on the motion, defense counsel limited the allegation of error to the matter of probable cause for Woods' arrest.

n7 Prior to trial Woods timely filed an "Omnibus Motion Pursuant to Rule 4-252 Maryland Rules of Procedure."£ The motion included requests for the suppression of "all evidence seized from [him] at the time of [his] arrest," of "all evidence which was unlawfully seized by police officers or their agents in their search of premises or a motor vehicle in connection with this alleged offense," and of "all admissions, statements or confessions" obtained by the police from Woods.

[***23]

   A detective of the Anne Arundel County Police Department, assigned to the Homicide Division, and designated as "the primary investigator" of Boyd's homicide, testified as to the circumstances leading to the arrest of Woods. He was told by Mrs. Sherry Rutherford that she had overheard a conversation before the murder between Woods, Dare, and Jody Boyd "in reference to a quote unquote getting rid of her husband, Michael Boyd."£ She gave the detective a description of Woods and informed him that Woods was an old boyfriend of a girl named Michele Madden.  The detective located Madden and one Greta Kemp who was a half-sister of Dare.  Madden told him that before the murder she overheard Woods and Dare speaking with Jody Boyd "with reference to having [Jody's] husband being taken care of -- gotten rid of."£ Madden also reported that Woods told Jody: "[H]e would take care of it."
 
He didn't know how he was going to do it, but he would do this for Jody.
 
Thereafter, before the murder, Woods called Madden to get Jody's telephone number so he could contact Jody.  Madden [*609] told the detective that after the murder she and [**245] Kemp saw Woods and Dare who asked "if they . . . had seen [***24] the newspaper articles related to this killing over in Glen Mar Apartments (the scene of Michael Boyd's murder)."£ The detective was informed by Kemp that
 
[s]he had heard from Michael Woods and from Donald Dare that [Woods] had in fact shot Michael Boyd.  He had also made comments that beforehand that he planned on assisting Jody Boyd by killing her husband for her, using the word -- the terms "getting rid of" and things of that nature.
 
The detective obtained Woods' address from the Motor Vehicle Administration. Greta Kemp resided with Dare and his mother and stepfather, the parents of Greta.  Mr. Kemp phoned the detective after the police had interviewed Greta and told the detective that
 
he was missing a gun from his house, a thirty-two automatic from his closet and some other items, ammunition belonging to that gun.
 
In response to the phone call, the detective went to the Kemp residence "and obtained all the information about the missing weapon and the other missing items."£ Mr. Kemp told the police that Woods and Dare were together in Dare's car "an older model, dark blue Pinto hatchback."£ Efforts made to obtain the tag number from the Motor Vehicle Administration [***25] were unsuccessful "because apparently it wasn't registered under the make of that car."£ The detective informed the hearing judge that the cause of Michael Boyd's death was four gunshot wounds from a small caliber weapon.  The police placed Woods' residence under surveillance.  The officers assigned to the stakeout were told "to look for a dark blue older model hatchback Pinto, tag unknown," that Dare and Woods were together, and that Dare was expected "to drop Woods off at this location using this blue Pinto."£ They were given the description of Woods. A short time later the detective was informed by the stakeout officers that they saw a man answering the description of Woods getting into a dark blue Pinto in front [*610] of Woods' house.  The detective and the other officers followed the car and, "with the assistance of the uniformed division," had the car pull over to the side of the road.  There were four occupants in the car. n8£ "[T]hey were all searched for officer protection."£ A .22 caliber semi-automatic handgun was recovered from Woods' rear pocket.  The detective told Woods that he was under arrest, and he was taken to the Criminal Investigation Division in Crownsville.  [***26] Defense counsel submitted.  He argued that the police should have obtained a warrant, but upon inquiry by the court he conceded that it did not matter that the police could have gotten a warrant but did not get one.  He said: "I had to make that argument for the record."£ The judge said:
 
 We've got oodles of evidence that a Michael Woods made the statements that he made and then we have the police finding a Michael Woods whose description meets the description given in an address not far from the scene, though Pasadena is an awful big place.  And we have a person meeting the description of Michael Woods . . . entering a vehicle next to or near the home of Michael Woods or the address of Michael Woods and the vehicle happens to be a vehicle which is the same description except for the tag that isn't actually the same vehicle involved.  I think it's enough for probable cause.
 
We agree.

n8 It turned out that the car the police stopped was not Dare's "old blue Pinto hatchback" but another "blue Pinto hatchback."£ As we have seen, the police did not have the tag number of Dare's car.  After the arrest of Woods and a consent search of the car, the other three occupants were permitted to go on their way.

[***27]

   The evidence Woods sought to suppress was obtained by the police after his arrest -- a confession made upon a custodial interrogation, and the murder weapon, seized upon a warrantless search of his residence.  As we pointed out supra, at the suppression hearing defense counsel limited the grounds for his motion to suppress this evidence to the [*611] contention that the police [**246]lacked probable cause for Woods' arrest. Woods puts it this way in his brief:
 
[I]f the arrest was found to be invalid the later statement and seizure would be inadmissible and if the arrest was found to be validly effectuated then the pretrial motion to suppress would be denied.
 
Maryland Code, Art. 27, § 594B(c) provides:

   A police officer may arrest a person without a warrant if the officer has probable cause to believe that a felony has been committed or attempted and that such person has committed or attempted to commit a felony whether or not in the officer's presence or view.
 
The statute is declarative of common law rules of arrest without a warrant. Stevenson v. State, 43 Md.App. 120, 127, 403 A.2d 812 (1979), aff'd, 287 Md. 504, 413 A.2d 1340 (1980). [***28] 

   As a general rule, whether an arrest for a felony without a warrant is constitutionally valid necessarily turns upon whether, at the moment the arrest was made, the arresting officer or the police acting as a team had probable cause to make it -- whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed or was committing a felony.
 
 Nilson v. State, 272 Md. 179, 184, 321 A.2d 301 (1974).
 
The rule of probable cause is a nontechnical conception of a reasonable ground for belief of guilt, requiring less evidence for such belief than would justify a conviction, but more evidence than that which would arouse a mere suspicion.
 
Id.£ We discussed the test for probable cause recently in Malcolm v. State, 314 Md. 221, 550 A.2d 670 (1988). Judge Blackwell, writing for the Court, observed that probable cause based on an informant's tip was no longer to be tested by the two-pronged analysis enunciated in Aquilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). [***29] [*612] Malcolm, 314 Md. at 227-228, 550 A.2d 670. The Court held that the existence of probable cause, vel non, is better determined by a balancing test, id. at 229, 550 A.2d 670, that is, upon consideration of the totality of the circumstances, id. at 230, 550 A.2d 670.

   It requires no extensive analysis of the totality of the circumstances to ascertain that at the moment Woods was arrested the facts and circumstances within the knowledge of the police and of which they had reasonably trustworthy information were much more than sufficient to warrant a prudent man in believing that Woods had committed a felony. The police knew that a felonious homicide had been committed -- they saw Michael Boyd's bullet riddled body.  We have heretofore recounted the information the police received from several reliable sources as to Woods' statements, both before and after the murder, which implicated him in the killing.  The existence of probable cause to believe that Woods committed the murder was simply overwhelming.  There is no doubt that the warrantless arrest of Woods by the police, armed with [***30] this probable cause, was valid.  We hold that the trial judge did not err in denying the motion to suppress.

   III

   At the point in the guilt stage of the trial when the State offered Woods' confession into evidence, defense counsel objected to its admission.  The confession executed by Woods contained "Advisement of Rights," one of which was: 

   You have the right to be taken without unnecessary delay, and in no event later than twenty-four (24) hours after arrest, before a Judicial Officer. . . . 
 
Woods indicated in the confession that he understood this right.  But he answered "no" to the question "Do you waive your right to be taken promptly before a Judicial Officer and agree to delay your appearance before him?"£ After evidence was received on the objection and argument made by counsel, the judge overruled the objection.  On [*613] appeal Woods claims that the denial was erroneous and that the confession and a gun recovered through information in the confession should have been suppressed.

   [**247] Maryland Rule 4-212(e) includes the provision:
 
The defendant shall be taken before a judicial officer of the District Court without unnecessary delay and in no event later than 24 [***31] hours after arrest . . . .
 
 It was brought out when the objection was being heard that the elapsed time from Woods' arrest to his appearance before a judicial officer was eight and one-half hours.  The State accounts for this time as follows:
 
Woods was originally arrested at approximately 1:30 a.m. on July 4, 1987.  He was taken to the police Criminal Investigations Division in Crownsville, where he arrived at approximately 2:10 a.m. He was advised of his rights at approximately 2:37 a.m. Upon being advised of his rights, Woods agreed to speak to the officers without the presence of an attorney.  He gave an oral statement, which was then transferred into typewritten form.  The oral statement lasted from 2:37 a.m. until 3:30 a.m. The typewritten statement started at 3:30 a.m. and ended at 5:07 a.m. Woods was ultimately transported to the Eastern District station at 8:00 a.m., and was ultimately taken before a commissioner at 10:00 a.m.
 
By Acts 1981, ch. 577, codified in the Maryland Code (1973, 1984 Repl.Vol.), as § 10-912 of the Courts and Judicial Proceedings Article, the legislature declared:

   (a) Confession not rendered inadmissible.  -- A confession may not [***32]be excluded from evidence solely because the defendant was not taken before a judicial officer after arrest within any time period specified by the Maryland District Rules.

   (b) Effect of failure to comply strictly with Maryland District Rules.  -- Failure to strictly comply with the provisions of the Maryland District Rules pertaining to taking a defendant before a judicial officer after arrest is only one factor, among others, to be considered by the court in [*614] deciding the voluntariness and admissibility of a confession.

   Acts 1981, ch. 577 was the legislative reaction to our decision in Johnson v. State, 282 Md. 314, 384 A.2d 709 (1978). In that case a majority of the Court held that a statement, voluntary or otherwise, obtained in violation of Md.Rule M.D.R. 723(a) (now Rule 4-212(e)) is subject to exclusion.  282 Md. at 328-329. n9£ Woods looks to Johnson and brushes off CJ § 10-912.  Here, however, there was no basis for a determination that the confession was involuntary.  There is no sound reason why the confession was otherwise inadmissible, either under the Miranda dictates or the concept [***33] of traditional voluntariness.  We hold that the court did not err in overruling the objection.

n9 Even before the enactment of the statute, however, we held that transferring an oral confession into a writing was a legitimate reason to delay presentment of a defendant before a judicial officer. Lewis v. State, 285 Md. 705, 718, 404 A.2d 1073 (1979).

   IV

   Woods mounts challenges to the judgments against him founded on the sufficiency of the evidence.

   The test for the sufficiency of the evidence is whether the evidence either shows directly or supports a rational inference of the facts to be proved, from which the trier of fact could properly be convinced, beyond a reasonable doubt, of the defendant's guilt of the offense charged.  Wilson v. State, 261 Md. 551, 563-564, 276 A.2d 214 (1971).

   (A)

   We shall not follow the circuitous route taken by Woods in arguing that the evidence was not sufficient to sustain the convictions.  We shall resolve the issue, of [***34] course, in the light of the firmly established law of this State.

   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 [*615] will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.
 
Maryland Rule 8-131(c).  But we are not restricted to any particular reasons or arguments that may have been advanced by [**248] the trial court, or by the State, or the defendant below, or on appeal.  Cranford v. State, 36 Md.App. 393, 402, 373 A.2d 984 (1977).

   The extrajudicial confession given by Woods to the police, standing alone, was sufficient to establish the corpus delicti and Woods' criminal agency as to each of the crimes of which he was convicted. Likewise, the testimony of Hayes, n10 standing alone, was sufficient to establish the corpus delicti and Woods' criminal agency as to each of the crimes of which he was convicted. Both the confession and the testimony of Hayes, however, standing alone, lack a requirement necessary to warrant a conviction.  [***35] Each of them must, in some measure, be corroborated.

n10 Woods asserts that Hayes was an accomplice. The State suggests that he was not.

   An accomplice is one who knowingly, voluntarily, and with common interest with the principal offender, participates in the commission of a crime either as a principal or as accessory before the fact.
 
Watson v. State, 208 Md. 210, 217, 117 A.2d 549 (1955). We assume for the purpose of decision in this case that Hayes was an accomplice.

   (1)

   We said in Bradbury v. State, 233 Md. 421, 424, 197 A.2d 126 (1964);
 
   [i]t is, of course, well settled that an extrajudicial confession of guilt by a person accused of crime, unsupported by other evidence, is not sufficient to warrant a conviction.
 
We explained:
 
We have therefore consistently held that the extrajudicial confession must be supported by evidence, independent of the confession, which relates to and tends to establish the [*616] corpus delicti, [***36] i.e., the facts that are necessary to show that a crime has been committed.
 
Id.  See Cooper v. State, 220 Md. 183, 190, 152 A.2d 120 (1959); Jones v. State, 188 Md. 263, 271-272, 52 A.2d 484 (1947); Weller v. State, 150 Md. 278, 284-285, 132 A. 624 (1926).
 
However, it is not necessary that the evidence independent of the confession be full and complete or that it establish the truth of the corpus delicti beyond a reasonable doubt or by a preponderance of proof.
 
Cooper, 220 Md. at 190, 152 A.2d 120. The supporting evidence may be small in amount and is sufficient to establish the corpus delicti
 
if when considered in connection with the confession or admission, it satisfies the trier of facts beyond a reasonable doubt that the offense charged was committed and that the accused committed it.
 
Bradbury, 233 Md. at 424-425, 197 A.2d 126. The corpus delicti may be proved by circumstantial evidence.  Cooper, 220 Md. at 191, 152 A.2d 120. "The quantum of independent proof [***37] of the corpus delicti is to be determined by the circumstances of each particular case."£ Id.£ The accused's identity or criminal agency is not a necessary element of the corroboration required to make a confession admissible.  Weller, 150 Md. at 284, 132 A. 624.

   (2)

   In Luery v. State, 116 Md. 284, 292-293, 81 A. 681 (1911), we departed from the common law and formulated the rule that a conviction may not rest on the uncorroborated testimony of an accomplice. We have steadfastly adhered to that rule despite pleas that we abandon it.  See Watson v. State, 208 Md. 210, 117 A.2d 549 (1955); Brown v. State, 281 Md. 241, 378 A.2d 1104 (1977).

   Not much in the way of evidence corroborative of the accomplice's testimony has been required by our cases.  We have, however, consistently held the view that while the corroborative evidence need not be sufficient in itself [*617]to convict, it must relate to material facts tending either (1) to identify the accused with the perpetrators of the crime or (2) to show the participation of the accused in the [***38] crime itself.  If with some degree of cogency the corroborative evidence tends to establish either of these matters, the trier of fact may credit the accomplice's testimony even with respect to matters as to which no corroboration was adduced.  [**249] That corroboration need not extend to every detail and indeed may even be circumstantial is also settled by our cases.
 
 Brown, 281 Md. at 244, 378 A.2d 1104 (citations omitted).

   (B)

   We first consider the murder conviction.
 
In a homicide case the proof of the corpus delicti is sufficient if it establishes the fact that the person for whose death the prosecution was instituted is dead, and that the death occurred under circumstances which indicate that it was caused criminally by someone.
 
Jones, 188 Md. at 272, 52 A.2d 484. In his confession Woods admitted that he shot Michael Boyd "three or four times" at point blank range in consummation of a plan to kill Boyd.  This admission was corroborated as required with respect to the corpus delicti of murder in the first degree.  Evidence apart from the confession established that Michael Boyd was indeed dead.  His body [***39] was found.  A doctor in the Department of Post Mortem Examiners testified that the cause of death was "the gunshot wounds."£ The gunshot wounds were enough to show that the manner of death was homicide -- that Boyd's death was not by accident or suicide but was caused criminally by someone.  With this corroboration the confession was enough to meet the test for the sufficiency of evidence to sustain the conviction of murder in the first degree.

   (C)

   (1)

   We turn to the convictions of attempted murder and conspiracy to blow up a car with dynamite. Hayes [*618] testified that Woods told him that Woods and Dare were going to blow up Michael Boyd's car with dynamite because Boyd's wife wanted him dead.  He saw Jody Boyd give Woods a roll of wire "like a speaker wire."£ Woods said he "planned on using it to blow up the car . . . .  He was gonna do the number one spark plug and try to spark the dynamite with it."£ Hayes said he saw the dynamite the night when Dare bought it from "a black guy."£ Woods and Hayes were present at the purchase.  Hayes described the dynamite. Hayes saw the dynamite again several days later when "Mike [Woods] and Donnie [Dare] tried to blow up Michael Boyd's [***40] car one time," in the early morning at Boyd's apartment complex.  Dare hid in the woods, and Woods went over to an automobile.  Hayes did not see what Woods did, but he and Dare returned a short time later.  Boyd came out of the apartment building, got in the car that Woods had approached, and drove away.  Woods, Dare and Hayes followed him.  Boyd drove to the National Security Agency, his place of work, parked, left the car and entered the building.  The car in which Woods was riding was parked near Boyd's car.  Woods got out and retrieved the dynamite from underneath the wheel well of Boyd's car.  Hayes could see that the fuse in the dynamite had been lit -- "it was burnt.  It was black on the top of the fuse."£ "The fuse had been lit but it went out and [the cardboard around the dynamite] was wet."£ Later, Woods said that the dynamite" was the dynamite he'd tried to blow the car up with."£ Woods threw the dynamite away near an old drive-in movie at Fort Meade in Odenton.

   The testimony of Hayes would be legally sufficient to sustain the convictions of attempted murder and conspiracy to dynamite an automobile if it were corroborated by evidence tending to show that Woods was a participant [***41]in the commission of the crimes.  We believe that the necessary corroboration was supplied by Woods' confession. He stated therein that he, Dare and Hayes "came up with the idea to blow up [Michael Boyd's] car with dynamite" to kill Boyd.  He added: "[T]his attempt failed."

   [*619] In Brown v. State, 281 Md. at 246, 378 A.2d 1104, we observed that testimony from the defendant himself corroborated the testimony of an accomplice by tending to show that the defendant was either identified with the perpetrators of the crime or participated in the commission of the crime itself. In Strong v. State, 261 Md. 371, 275 [**250] A.2d 491 (1971), vac. as to the death penalty, 408 U.S. 939, 92 S.Ct. 2872, 33 L.Ed.2d 760 (1972), the defendant was convicted of the murder in the first degree of a cab driver.  We found that the testimony of an accomplice implicating him in the murder "was fully corroborated by the testimony of two [third persons] that [the defendant] confessed to each of them that he had killed the cab driver . . . ."£ Strong, 261 Md. at 377, 275 A.2d 491. [***42] In Mulcahy v. State, 221 Md. 413, 158 A.2d 80 (1960), we considered as part of the corroborative evidence the defendant's "own statement to the police immediately after his arrest" which tended to place him at the scene of the crime and to identify him with the perpetrators of the murder. Mulcahy, 221 Md. at 427-428, 158 A.2d 80. In Judy v. State, 218 Md. 168, 146 A.2d 29 (1958), we included as corroborative evidence the "words of the defendant himself."£ Judy, 218 Md. at 176, 146 A.2d 29. It may be that Woods' confession is not corroborated with respect to the attempted murder and the conspiracy to dynamite the car.  But that would mean only that the confession could not serve to warrant convictions of those crimes.  We are not relying on the confession to warrant the convictions.  We look to it only to corroborate the testimony of the accomplice which is sufficient to warrant the convictions if corroborated. It is not disputed that the confession was freely and voluntarily made.  There is no suggestion in Strong, Mulcahy, and Judy that admissions [***43] by the defendant to the police or to third parties had themselves to be corroborated in order to serve as corroboration of the testimony of an accomplice. And we think that it is immaterial whether the corroboration be by way of judicial admissions as in Brown or by way of voluntary extrajudicial admissions as were made here.  We see no [*620] reason why Woods' admissions to the police, first made orally and then reduced to writing, should not be so utilized.

   (2)

   Woods fits another arrow to his bow in his attempt to shoot down his convictions of attempted murder and conspiracy to dynamite an automobile.  As to the former he seeks to invoke the doctrine of "factual impossibility," claiming that he could not be convicted of attempted murder because the means employed could not have caused death.  As to the latter he contends that the explosive utilized was not shown to be dynamite.

   (a)

   In his testimony concerning the attempt to blow up Boyd's car, Hayes was shown an explosive and said that it looked like the "dynamite" retrieved by Woods from the underneath of Boyd's car.  The explosive Hayes identified was a "quarter stick."£ A Deputy State Fire Marshall, accepted as an expert [***44]in the field of explosives, testified that a "quarter stick" could be a quarter of a stick of dynamite, or the street term for a lower explosive. Woods, on the premise that the explosive planted by him had to be capable of killing Boyd or inflicting grievous bodily harm upon him, declared that the testimony of the expert "affirmatively proved that it was not."£ A fair reading of the testimony belies this bald assertion.  Of course, we do not know the exact nature of the explosive Woods employed, but we shall assume that it was the "lower type."£ Woods summarizes the expert's testimony:
 
This had the capability, if exploded under a car, to blow out one of the tires or gas tank if placed there or to set fire to any oily residue or gas that might have accumulated under the car.  It would not have the capability to kill someone unless it blew up the gas tank.
 
Clearly, in the face of this testimony, when Woods affixed the explosive to Boyd's car in such a way that, if things went as planned, it would explode while Boyd was driving, his death was indeed likely from a fire, or a gas tank [*621]explosion, or loss of control of the vehicle.  Certainly, the judgment of the trial [***45] judge that Woods attempted to murder Boyd was not clearly erroneous. n11

n11 We call attention to a statement by R. LaFave, Criminal Law § 6.3(a)(2) (1986) at 512:

   All courts are in agreement that what is usually referred to as "factual impossibility" is not defense to a charge of attempt.  That is, if what the defendant intends to accomplish is proscribed by the criminal law, but he is unable to bring about that result because of some circumstances unknown to him when he was engaged in the attempt, then he may be convicted.
 
The Court of Special Appeals has followed this view.  In re Appeal No. 568, Term 1974, 25 Md.App. 218, 220-223, 333 A.2d 649, cert. denied, 275 Md. 751 (1975); Waters v. State, 2 Md.App. 216, 226, 228, 234 A.2d 147 (1967), cert. denied, 259 Md. 737 (1970).

   We have not decided the effect on culpability of impossibility to commit the intended crime.  Young v. State, 303 Md. 298, 308 n. 6, 493 A.2d 352 (1985), and we need not now address it.

   We note that the expert witness in the case before us testified that "[s]ome people on the street believe that quarter sticks are almost as powerful as a quarter stick of dynamite."

[***46]

   [**251] (b)

   Maryland Code, Art. 27, § 119 provides:

   Every person, his aiders or abettors, who shall wilfully and maliciously dynamite, blow up or otherwise, by means of any explosives as that term is defined in § 26(a) [now (1)] of Article 38A of this Code, wreck, destroy, injure or damage, in whole or in part, or attempt so to do, or conspire or connive thereat, any property whether real or personal, public or private, shall be guilty of a felony, and shall be subject, in the discretion of the court, to imprisonment for life or for a definite period not exceeding twenty years, or to a fine not exceeding twenty thousand dollars, or to both fine and imprisonment, in the discretion of the court.

   In his attempt to set aside his conviction of conspiracy to dynamite Boyd's car, Woods leans on the failure of the evidence to establish that the explosive he used in his abortive attempt was "dynamite."£ Explosives, as that term is used in Md.Code, Art. 38A, § 26(1),
 
[*622] means gunpowder, powders for blasting, high "explosives" blasting materials, fuses (other than electric circuit breakers), detonators, and other detonating agents, smokeless powder and any chemical compound or any mechanical [***47] mixture containing any oxidizing and combustible units, or other ingredients in such proportions, quantities, or packing that ignition by fire, friction, concussion, percussion or detonation of any part thereof may and is intended to cause an explosion, including bombs and destructive devices designed to operate by chemical, mechanical or explosive action but shall not include fixed ammunition for small arms, small arms ammunition primers, small arms percussion caps, safety and pyrotechnic fuses, quills, quick and slow matches, friction primers, fireworks, or common matches when used in their original configuration.
 
The State recounts the evidence with respect to the nature of a "quarter stick": 

   The expert in this case testified that a quarter stick "is made up of potassium bicarbonate, aluminum powder, and . . . and sulfur . . . and functioned by a three-thirty seconds pyrotechnic fuse . . . green or red."£ He stated that the quarter stick would detonate at approximately 1,000 feet per second.  He also stated that anything over 180 grains of flashpowder is considered a Class A explosive under the definition in Article 38A, § 26.  The size "quarter stick" identified by Hayes [***48] held over 200 grains of flashpowder.
 
The explosive answering the description given by Hayes which Woods used was clearly within the ambit of the statute under which he was charged.  Woods' contention is devoid of merit.

   (D)

   Lastly, we review the sufficiency of the evidence to sustain the handgun violation.  Maryland Code, Art. 27, § 36B(d) makes it a misdemeanor for any person to "use a handgun or an antique firearm capable of being concealed [*623]on the person in the commission of any felony . . . ."£ The evidence showed that Boyd had been shot four times, and it was legally sufficient to establish that Woods was the criminal agent.  A .32 auto caliber (7.65 mm) pistol with a magazine containing five cartridges and a "Winchester" ammunition box containing two cartridges were found in Woods' residence.  Three bullets were [**252] retrieved from Boyd's body.  Four cartridge cases were found at the scene of the crime.  These articles were sent to the Federal Bureau of Investigation for examination.  The laboratory report of the Bureau, received in evidence, disclosed that the bullets in Boyd's body were fired from the barrel of the pistol found in Woods' residence.  The cartridge cases [***49] found at the scene of the crime were fired in the pistol.  The bullets recovered from Boyd's body and the cartridge cases found at the scene of the crime were "components of ammunition" like those comprising the cartridges in the magazine and ammunition box found in Woods' residence.  The report continued:

   The . . . pistol functioned normally when test fired in the Laboratory.  The trigger pull . . . was measured to be approximately five pounds, which is considered normal for a firearm of this type.  The . . . magazine [found in Woods' residence] is manufactured for this type of pistol.  [It] and [the magazine in the pistol] will each hold nine cartridges.
 
The report of the Federal Bureau of Investigation supplied evidence legally sufficient to show that a handgun was used to kill Boyd.  We conclude that the evidence showed directly, or supported rational inferences, from which the trial judge could properly be convinced beyond a reasonable doubt that Woods was guilty of using a handgun in the commission of the felony of murder.

   Woods has not prevailed on any of his contentions.  We, therefore, affirm the judgments of the Circuit Court for [*624] Anne Arundel County. n12 [***50]

n12 On 9 February 1988 in the Circuit Court for Anne Arundel County, Donald A. Dare pleaded guilty to the first degree murder and the attempted murder of Michael Boyd.  The court found him guilty of those offenses and sentenced him to life imprisonment on the murder conviction and to a concurrent sentence of life imprisonment with all but 5 years suspended on the attempted murder conviction. Six related charges were nol prossed.

   On 4 February 1988, Jody Boyd was found guilty at a court trial in the Circuit Court for Anne Arundel County of the first degree murder of Michael Boyd, the attempted murder of him, and conspiracy to murder him.  She was sentenced to life imprisonment without the possibility of parole on the murder conviction and to concurrent life sentences on the other convictions.  On review of the sentences, the panel struck the parole provision.  On appeal, the Court of Special Appeals affirmed the judgments.  Boyd v. State, 79 Md.App. 53, 555 A.2d 535, (1989).

   As to James Hayes, the State, in exchange for his testimony, agreed not to oppose his being tried as a juvenile.

[***51]

   JUDGMENTS OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED;

   COSTS TO BE PAID BY APPELLANT. 

STATE of Maryland et al. v. BURNING TREE CLUB, INC. et al. 
No. 106, September Term, 1987
 
Court of Appeals of Maryland
 
315 Md. 254; 554 A.2d 366; 1989 Md. LEXIS 40

 March  8, 1989

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals, Circuit Court for  Anne Arundel  County - Judge Martin A. Wolff.

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY VACATED, AND CASE REMANDED TO THAT COURT FOR THE ISSUANCE OF A DECLARATORY JUDGMENT IN ACCORDANCE WITH THIS OPINION.  PLAINTIFFS TO PAY COSTS.

CORE TERMS:  club, periodic, sex, sex discrimination, associational, intimate, country club, primary purpose, membership, entity, severable, exemption, classification, subtitle, special law, discriminatory, basis of sex, invalid, discriminate, space, golf, contract clause, severability, qualify, tax burden, guest, state action, tournaments, tax assessment, tax benefit

COUNSEL: Robert A. Zarnoch, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General and Kaye Brooks Bushel, Assistant Attorney General, on the brief), all of Annapolis, Maryland, for appellant.

   Benjamin R. Civiletti (James A. Dunbar and Venable, Baetjer and Howard, on brief), all of Baltimore, Maryland, for appellee.

   Anti-Defamation League of B'Nai B'Rith -- Daniel Goldstein and Brown & Goldstein, Baltimore, Maryland, Livia D. Thompson, Jill L. Kahn, Justin J. Finger, Jeffrey P. Sinensky, Meyer Eisenberg, Harold Heller, New York City, for amicus curiae.

JUDGES: Murphy, C.J., and Eldridge, Cole, Rodowsky, McAuliffe, Adkins and Blackwell, JJ.  McAuliffe, Judge, dissenting.  Murphy, C.J., joins in this opinion.

OPINIONBY: ELDRIDGE

OPINION: [*258] [**369] In 1965, the Maryland General Assembly enacted Chapter 399 of the Acts of 1965, then codified as Maryland Code (1957, 1965 Cum.Supp.), Art. 81, § 19(e), [***2] and presently codified as Code (1986, 1988 Cum.Supp.), § 8-213 of the Tax-Property Article, which authorized the State to enter into agreements with private country clubs under which the [*259] clubs would maintain their land as open spaces in exchange for favorable assessment of those lands for property tax purposes. n1£ As originally enacted, this legislation was silent with respect to any type of discrimination.  In 1965, pursuant to this enactment, Burning Tree Country Club, a golf club in Montgomery County, Maryland, entered into a 10-year agreement with the State to maintain its land as open spaces in exchange for a favorable tax assessment.

n1 Under these agreements the property was assessed as undeveloped land, rather than at its "best use," as if it were "developed to the same density as the surrounding area."£ Burning Tree Club v. Bainum, 305 Md. 53, 57, 501 A.2d 817, 819 (1985).

   In 1974, the General Assembly, by Ch. 870 of the Acts of 1974, amended Art. 81, § 19(e), to [***3] provide that country clubs which discriminated "in granting membership or guest privileges based upon the race, color, creed, sex or national origin of any person or persons" could not qualify for the preferential tax assessment. Ch. 870 provided two exceptions to the prohibition against sex discrimination: the "primary purpose" provision and the "periodic discrimination" provision.  Ch. 870 stated in relevant part:
 
"The provisions of this section with respect to discrimination in sex shall not apply to any club whose facilities are operated with the primary purpose, as determined by the Attorney General, to serve or benefit members of a particular sex, nor to clubs which exclude certain sexes on certain days and at certain times."

   In 1975, Burning Tree, which restricts its membership to men and permits only members and their male guests to use its facilities, extended its open spaces agreement with the State for another ten years.  In 1978, the Attorney General of Maryland, pursuant to his authority under § 19(e)(4), determined that the sex discrimination ban in Ch. 870 was inapplicable to Burning Tree because it was operated with the primary purpose of serving one sex. [***4] In 1981, Burning Tree entered into a 50-year "open spaces" agreement with the State. From 1974 to the present, Burning Tree has [*260] been the only country club to benefit from the primary purpose provision.

   In 1983, Stewart Bainum n2 and Barbara Renschler brought suit, as taxpayers and, in Ms. Renschler's case, as a woman seeking membership in Burning Tree, to have the primary purpose provision declared unconstitutional on the ground that it violated Art. 46 of the Maryland Declaration of Rights, known as the Equal Rights Amendment or E.R.A.  That case reached this Court and was decided in Burning Tree Club v. Bainum, 305 Md. 53, 501 A.2d 817 (1985). A majority of the Court held that the primary purpose provision violated the E.R.A., Burning Tree Club v. Bainum, supra, 305 Md. at 85-88, 501 A.2d 817 (opinion of Judge Rodowsky), 88-102, 501 A.2d 817 (opinion of Judge Eldridge joined by Judge Cole and Judge Bloom), 501 A.2d at 833-842. A somewhat different majority of the Court, however, held that the primary purpose provision was not severable from the language of Ch. 870 prohibiting [***5] sex discrimination, Burning Tree Club, 305 Md. at 80-84, 501 A.2d at 830-833 (opinion of Chief Judge Murphy, joined by Judge Smith and Judge Orth), 305 Md. at 88, 501 A.2d at 835 (opinion of Judge Rodowsky).  The Court's conclusion, therefore, was that
 
"[t]he invalid primary purpose provision is not severable from the prohibition against sex discrimination so that the latter falls, together with the then completely [**370] superfluous periodic discrimination provision."£ 305 Md. at 83-84, 501 A.2d at 832.

n2 Stewart Bainum was, at the time, a member of the Maryland State Senate, representing a portion of Montgomery County.

   The result of that decision was to permit Burning Tree to continue receiving its tax benefit while also maintaining its discriminatory policies.  Within six weeks of this Court's decision in Burning Tree Club v. Bainum, a bill was introduced in the General Assembly to reinstate the prohibition against sex discrimination by country clubs [***6] receiving the tax assessment benefit. The bill, as amended during [*261] the legislative process, was ultimately enacted as Ch. 334 of the Acts of 1986.  Ch. 334 as codified states in its entirety:
 
"(a) In General -- Except as provided in subsection (b) of this section, if a country club that meets the qualifications of § 8-212 of this subtitle allows or practices discrimination based on race, color, creed, sex or national origin in granting membership or guest privileges, the country club may not make an agreement under this subtitle.
 
"(b) Exception -- If the country club excludes certain sexes on specific days or at specific times on the basis of sex, the country club does not discriminate under subsection (a) of this section."
 
Subsection (b) of Ch. 334 is, in essence, the periodic discrimination provision which had not been specifically challenged in the prior litigation but which this Court struck down as "completely superfluous."

   On June 23, 1986, the Supervisor of Assessments for Montgomery County, acting pursuant to the new statute, notified Burning Tree that effective July 1, 1986, the country club's lands would be assessed at their full cash value [***7] because of the club's discriminatory membership policies.  On June 30, 1986, Burning Tree and two of its members filed the present action in the Circuit Court for Anne Arundel County against the State of Maryland, the Governor, the Attorney General, and the State Department of Assessments and Taxation, seeking declaratory and injunctive relief. n3£ In its complaint, Burning Tree asserted (1) that Chapter 334 was intended to have only prospective effect and did not affect Burning Tree's current 50-year "open spaces" contract with the state; (2) that if Chapter 334 was held to affect Burning Tree's current contract, it violated Art. 1, § 10 (the Contract Clause) of the United States Constitution; (3) that Chapter 334 was a special law prohibited [*262] by Article III, § 33, of the Maryland Constitution; (4) that Chapter 334 violated Burning Tree's members' freedom of association rights under the United States Constitution; and (5) that the periodic discrimination exception in Chapter 334 violated the E.R.A. and that the unconstitutional language was not severable from the overall prohibition of sex discrimination in Chapter 334.

n3 The plaintiffs collectively will hereafter be referred to as "Burning Tree," and the defendants collectively will be referred to as "the State."

[***8]

   On July 21, 1987, the Circuit Court for Anne Arundel County granted the State's motion for summary judgment with respect to the first four contentions but granted summary judgment in favor of Burning Tree as to the contention that the periodic discrimination provision violated the E.R.A.  In addition, the circuit court agreed with Burning Tree that the periodic discrimination provision was not severable from the overall prohibition on sex discrimination in Ch. 334.  The circuit court's conclusions were embodied in a declaratory judgment.  While an injunction had been prayed for, the circuit court, for some unexplained reason, did not issue one, even though Burning Tree had not paid all its taxes due and had prevailed with respect to its E.R.A. contention. n4

n4 At oral argument before this Court, counsel for Burning Tree indicated that the club had still not paid the full taxes demanded by the State and was accruing penalties as a result.  Consequently, this case does not involve the situation addressed in cases such as Apostol v. Anne Arundel County, 288 Md. 667, 672, 421 A.2d 582 (1980), in which we stated: "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 or declaratory judgment action lies to challenge the validity of a tax so paid."£ See also Nordheimer v. Montgomery County, 307 Md. 85, 96-98, 512 A.2d 379, 385-386 (1986), and cases cited therein.

[***9]

   [**371] The State and Burning Tree filed cross-appeals to the Court of Special Appeals, and, before any proceedings in the Court of Special Appeals, both sides filed in this Court petitions for a writ of certiorari.  Thereafter, this Court granted both petitions.  In this Court, Burning Tree advances the same five contentions made in the circuit court and set forth above.

   [*263] We shall, in agreement with the circuit court, reject the first four of Burning Tree's arguments.  As to the fifth argument, we agree with the circuit court and with Burning Tree that the periodic discrimination provision violates the E.R.A.  Nevertheless, we shall hold that the invalid periodic discrimination provision is severable from the broad prohibition against sex discrimination contained in Ch. 334.

   I.

   The first issue before us is whether Ch. 334 of the Acts of 1986 addresses only future contracts and is therefore inapplicable to the 50-year contract entered into by the State and Burning Tree in 1981.  Burning Tree argues that the plain language of Ch. 334, particularly the words "may not make an agreement under this subtitle," addresses only future contracts and does not affect clubs with existing agreements.  [***10]

   The court below, after examining the legislative purpose and history of Ch. 334, concluded that the statute was intended to apply to contracts in force at the time it was enacted.  The court noted that the statute would not apply retroactively to the tax benefits Burning Tree had already received under the contract prior to Ch. 334's enactment.  We agree with the circuit court's conclusion.

   The background and legislative history of the phrase in Ch. 334, "may not make an agreement under this subtitle," refutes Burning Tree's argument that the language applies only to future agreements.  Art. 81, § 19(e), as reenacted in 1974, stated in relevant part as follows (emphasis added):
 
"4. In order to qualify under this section, the club shall not practice or allow to be practiced any form of discrimination in granting membership or guest privileges based upon the race, color, creed, sex, or national origin of any person or persons . . . .  The provisions of this section with respect to discrimination in sex do not apply to any club whose facilities are operated with the primary purpose, as determined by the Attorney General, to serve or benefit members of a particular sex, nor to [***11] the clubs which [*264]exclude certain sexes only on certain days and at certain times.  If the Attorney General determines that a pattern of discrimination is evident in any club, he shall negotiate a consent agreement with that club to cease such discrimination.  If that club breaches or violates the consent agreement or refuses to enter a consent agreement, then the Attorney General shall issue a cease and desist order to that club. If the club breaches or violates the terms of the cease and desist order, the tax exemption, tax credit or beneficial assessment shall be withdrawn, . . . .  Further, any club which fails to qualify as a country club under paragraph (4) because the club has engaged in discrimination is not liable for unpaid taxes provided for in paragraph (7) . . . .
"(7) If, prior to the expiration of the agreement, or any extension thereof, . . . said property ceases to be used as, or fails to qualify as, a country club, whichever is the earlier date, the unpaid taxes . . . become due and payable."
 
This was the statutory language in effect when the current contract was entered into.

   In 1985, as part of the on-going recodification process which [***12] began in 1973, Art. 81 was revised and the relevant passages were placed in §§ 8-214 and 8-215(d) of the Tax-Property Article of the Code.  Those sections provide as follows (emphasis added):
 
 "§ 8-214.  Same -- Discrimination.

   "(a) In General.  -- Except as provided in subsection (b) of this section, if a country club that meets the qualifications of § 8-212 of this subtitle allows or practices discrimination based on race, color, [**372] creed, sex, or national origin in granting membership or guest privileges, the country club may not make an agreement under this subtitle.

   "(b) Exceptions.  -- If the facilities of a country club that meets the qualifications of § 8-212 of this subtitle are operated with the primary purpose of serving or benefiting members of a particular sex or if the country [*265]club excludes certain sexes on specific days or at specific times on the basis of sex, the country club does not discriminate under subsection (a) of this section."
 
"§ 8-215.  Same -- Determination of discrimination and consent agreements.

   * * *

   "(d) Assessing on failure to comply.  -- (1) If a country club fails to comply with an order issued under subsection [***13] (c) of this section, the country club may not be assessed as a country club under § 8-213 of this subtitle until the Attorney General determines that the country club complies with the order.

   (2) A country club that has failed to comply with an order issued under subsection (c) of this section shall be assessed as if there were no agreement under § 8-213 of this subtitle. However the country club is not liable for the unpaid taxes described in § 8-216 of this subtitle."

   * * *
 
According to the Revisor of Statutes, the language of §§ 8-214(a) and 8-215(d) was "new language derived without substantive change" from former Art. 81, § 19(e).  Revisor's Note to §§ 8-214 and 8-215.  The Revisor's Note to § 8-214 adds:
 
"Also in subsection (a) of this section, the phrase 'may not make an agreement under this subtitle' is substituted for the former phrase 'in order to qualify under this section' for clarity."

   This Court has consistently taken the view that "'the revisor's note is a useful guide to the legislative purpose underlying [a] change in statutory language.'"£ Nationwide v. USF & G, 314 Md. 131, 147, 550 A.2d 69, 77 (1988), quoting Rohrbaugh v. Estate of Stern, 305 Md. 443, 450, 505 A.2d 113 (1986). [***14]That the revised language at issue here created no substantive change is further underscored by the principle that "'a language change effected during the course of formal code revision accomplishes no substantive change absent the clearest legislative intent.'"£ Nationwide [*266] v. USF & G, supra, 314 Md. at 147, 550 A.2d at 77, quoting McGarvey v. State, 311 Md. 233, 242, 533 A.2d 690 (1987).

   The only effect of the decision by this Court in Burning Tree v. Bainum, supra, was to eliminate the word "sex" from § 8-214(a) and to eliminate the exceptions in § 8-214(b) to the prohibition against sex discrimination. Ch. 334 of the Acts of 1986 re-enacted § 8-214, making only two changes.  It deleted the invalid "primary purpose" provision from § 8-214(b) and it restored the word "sex" to § 8-214(a):
 
"(a) In General -- Except as provided in subsection (b) of this section, if a country club that meets the qualifications of § 8-212 of this subtitle allows or practices discrimination based on race, color, creed, sex or national origin in granting membership or guest privileges, the [***15] country club may not make an agreement under this subtitle.
 
(b) Exception -- If the country club excludes certain sexes on specific days or at specific times on the basis of sex, the country club does not discriminate under subsection (a) of this section."

   What this background makes clear is that the language at issue here -- "may not make an agreement" -- is not new language in Ch. 334.  It first appeared in the 1985 revision of Art. 81 and was intended to have the same meaning as the words "in order to qualify under this section" in Art. 81, § 19(e)(4)(i).

   It is apparent that, under Art. 81, § 19(e), "qualifying" is an ongoing process, not merely an initial step, and that a club may "fail to qualify" at any time during the course of the agreement and have its "tax benefit or preferential assessment . . . withdrawn."£ This is underscored by the administrative construction of Art. 81, § 19(e).  In response to the 1974 enactment, [**373] the Attorney General's Office investigated the discriminatory practices of all country clubs, regardless of whether their assessment agreements predated [*267] July 1, 1974, the date of the legislative enactment.  Thus the Attorney General's understanding [***16] of Art. 81, § 19(e), and his practice in enforcing it, was that it applied to clubs with existing agreements.  The administrative construction of a statute is, of course, entitled to weight.  See, e.g., Sinai Hosp. v. Dep't of Employment, 309 Md. 28, 46, 522 A.2d 382 (1987); Balto. Gas & Elec. v. Public Serv. Comm'n, 305 Md. 145, 161, 501 A.2d 1307 (1986), and cases there cited.

   Moreover, the words "may not make," as codified in § 8-214, are linked to the enforcement machinery described in § 8-215.  Clearly the language of § 8-215, which speaks of assessing country clubs "as if there were no agreement under § 8-213 of this subtitle," contemplates enforcement against clubs with existing contracts.

   Finally, Burning Tree's construction would entirely defeat the purpose of Ch. 334.  Ch. 334 was enacted within six months of, and in response to, this Court's decision in Burning Tree Club v. Bainum, supra. The sponsor of the bill was Senator Bainum, whose lawsuit had attempted to deprive Burning Tree of its tax assessment benefit.  The Legislature's obvious intent was to reenact the prohibition [***17] against sex discrimination and make it applicable to existing contracts.  If we were to hold Ch. 334 inapplicable to existing contracts, no country club under a current "open spaces" contract would be required to alter discriminatory policies until its contract expired.  In the case of Burning Tree, the club would continue to receive its tax benefit until the year 2031.  It is implausible that the General Assembly would move with such alacrity to enact a ban on sex discrimination which would have no effect for such a long period.
 
   In State Commission on Human Relations v. Amecom Div., 278 Md. 120, 360 A.2d 1 (1976), this Court held that an antidiscrimination statute applied to existing contracts, rejecting an argument that the statute was not applicable to employees under employment contracts entered into before the statute passed. The Court said, "the purpose of [the [*268] statute] may only be adequately served by retroactive application with regard to the date of formation of the contract . . . .  [G]iving [the statute] effect only with regard to contracts of employment entered into after [the date of the statute] would mean that an employee of [***18] long standing would find the [statutory] remedy unavailable while a new employee could receive its benefits.  Such an absurd result could not have been intended . . . ."£ 278 Md. at 127, 360 A.2d at 6.

   Similarly, in the present case, the legislative purpose of eliminating state support for discrimination would only be adequately served by making Ch. 334 applicable to current as well as future contracts.

   II.

   Burning Tree next argues that applying Ch. 334 to Burning Tree's present contract with the State impairs the obligation of the contract in violation of the Contract Clause of the United States Constitution, Art. I, § 10, which provides that "no State shall . . . pass any . . . Law impairing the Obligation of Contracts."£ Burning Tree contends that Ch. 334's prohibition against sex discrimination imposes a unilateral change in the contractual obligation between the State and Burning Tree.  According to Burning Tree, when the 50-year contract was entered in 1981, the primary purpose exception was part of the law and the contract.  The removal of the primary purpose exception by Ch. 334, the argument continues, imposes a much heavier obligation upon the [***19] club than it agreed to undertake when it signed the contract, thereby violating the Contract Clause. In our view, however, Ch. 334 does not impair the obligation of contract in violation of the Contract Clause.

   It is a fundamental principle that contracts are subject to the public policies and valid laws existing at the time and place in which they are made. Thus the Supreme Court stated in Abilene National Bank of Abilene v. Dolley, 228 U.S. 1, 5, 33 S.Ct. 409, 410, 57 L.Ed. 707, 709 (1913): "Contracts [**374] made after the law was in force, of course, are [*269] made subject to it, and impose only such obligations and create only such property as the law permits."£ Consequently, courts in a wide variety of contexts have refused to enforce contractual provisions which conflicted with laws or public policy. n5£ See, e.g., Otis & Co. v. Securities and Exchange Comm., 323 U.S. 624, 638, 65 S.Ct. 483, 490, 89 L.Ed. 511, 522 (1945); United States v. City and County of San Francisco, 310 U.S. 16, 28, 60 S.Ct. 749, 756, 84 L.Ed. 1050, 1059 (1940); Gable v. Colonial Ins. Co., 313 Md. 701, 704, 548 A.2d 135, 136 (1988); [***20]Lee v. Wheeler, 310 Md. 233, 243, 528 A.2d 912, 917 (1987); Jennings v. Government Employees Ins., 302 Md. 352, 488 A.2d 166 (1985); Budget Rent-A-Car v. Raab, 268 Md. 478, 482-483, 302 A.2d 11, 13-14 (1973); Baxter v. Wilburn, 172 Md. 160, 162-164, 190 A. 773, 775 (1937).

n5 In addition to invalidating contractual provisions that conflict with laws, a corollary principle reads existing laws into the terms of contracts. Thus, as we stated in Prince George's Club v. Carr, 235 Md. 591, 607, 202 A.2d 354 (1964):
 
"This Court, in various decisions over a long span of years, has cited and applied 'the general rule that subsisting laws enter into and form part of a contract as if expressly referred to or incorporated in its terms'" (quoting Holmes v. Sharretts, 228 Md. 358, 367, 180 A.2d 302 (1962)).
 
See also Wright v. Commercial Sav. Bank, 297 Md. 148, 153, 464 A.2d 1080 (1983); Design & Funding v. Betz Garage, 292 Md. 265, 276, 438 A.2d 1316 (1981); Dennis v. City of Rockville, 286 Md. 184, 189-190, 406 A.2d 284 (1979).

[***21]

   The Maryland Equal Rights Amendment, enacted in 1972, mandated equality of rights under the law and rendered state-sanctioned sex-based classifications suspect.  Decisions by this Court prior to 1981 made it clear that sex-based classifications were generally forbidden by the E.R.A.  See, e.g., Rand v. Rand, 280 Md. 508, 515-516, 374 A.2d 900 (1977); Md. St. Bd. of Barber Ex. v. Kuhn, 270 Md. 496, 506-507, 312 A.2d 216 (1973). The E.R.A. and the judicial decisions construing it represent the law and public policy of the State.  Every Maryland contract entered with the State government since the enactment of the E.R.A. has [*270] been subject to the constitutional provision and the judicial decisions under it.

   In addition, Ch. 870, enacted in 1974, among other things, denied tax benefits to country clubs that discriminated on the basis of sex. This provision was constitutional, and the 1981 contract was made subject to it as well.  The fact that this particular language later became ineffective on severability grounds does not alter its status as a valid public policy to which the contract was subject.

   Ch. 870 also [***22] created a sex-based classification, permitting clubs operated with the primary purpose of serving one sex to continue receiving tax benefits.  This provision violated the E.R.A. and was invalid from its inception.  Burning Tree v. Bainum, supra, 305 Md. at 84, 501 A.2d at 832.

   Contracting parties are presumed to be "mindful of the existing law."£ Wright v. Commercial Sav. Bank, 297 Md. 148, 153, 464 A.2d 1080, 1083 (1983). Yet, despite the E.R.A. and this Court's decisions that sex-based classifications under state law were constitutionally suspect, Burning Tree purportedly relied on the invalid primary purpose provision when entering into the 1981 contract. Burning Tree now claims that Ch. 334 imposes new and onerous obligations of which it was unaware when it contracted in 1981.  But Ch. 334 imposes no obligation on Burning Tree that was not imposed by valid laws and public policy in effect in 1981.  It simply restores the language banning sex discrimination which was part of the law to which the contract was subject in 1981.  The Contract Clause does not bind the State to carry out the terms of a statute which was [***23] unconstitutional.  Such a result would violate the principle that courts will not enforce invalid terms; it would give greater weight to a contracting party's unwarranted reliance on an invalid statute than to the actual laws and public policies of the State.
 
   Apart from our rejection of Burning Tree's Contract Clause argument on the ground that it ignores the law and public policy existing at the time the contract was made, we [*271] do not believe that Burning [**375] Tree's argument prevails under traditional Contract Clause analysis.

   The Supreme Court, in Energy Reserves Group v. Kansas Power & Light, 459 U.S. 400, 411, 103 S.Ct. 697, 704, 74 L.Ed.2d 569, 580 (1985), articulated the approach to be used in considering contract clause arguments:
 
"The threshold inquiry is 'whether the state law has, in fact operated as a substantial impairment of a contractual relationship.'£ Allied Structural Steel v. Spannous, 438 U.S. 234, 244 [98 S.Ct. 2716, 2722, 57 L.Ed.2d 727] (1978) . . . .  If the state regulation constitutes a substantial impairment, the State, in justification, must have a significant [***24] and legitimate public purpose behind the regulation, United States Trust Co. [v. New Jersey], 431 U.S. [1], at 22 [97 S.Ct. 1505, 1517, 52 L.Ed.2d 92 (1977)], such as the remedying of a broad and general social or economic problem.

   * * *
 
"Once a legitimate public purpose has been identified, the next inquiry is whether the adjustment of 'the rights and responsibilities of contracting parties [is based] upon reasonable conditions and [is] of a character appropriate to the public purpose justifying [the legislation's] adoption.'£ United States Trust Co., 431 U.S. at 22 [97 S.Ct. at 1517]."
 
See Chevy Chase S & L v. State, 306 Md. 384, 416, 509 A.2d 670 (1986); Robert T. Foley v. W.S.S.C., 283 Md. 140, 389 A.2d 350 (1978).

   We shall assume, arguendo, that Ch. 334 does operate as a substantial impairment of the contractual relationship between Burning Tree and the State. But, as the above quotation makes clear, a finding of substantial impairment is merely a threshold step; it does not necessarily lead to the conclusion that [***25]the Contract Clause has been violated.

   If the State has "a significant and legitimate public purpose behind the regulation . . . such as the remedying of a broad and general social or economic problem," and if the [*272] means employed by the State are "appropriate to the public purpose," then even a substantial impairment will not violate the Contract Clause. Energy Reserves Group v. Kansas Power & Light, supra, 459 U.S. at 411-412, 103 S.Ct. at 704-705, 74 L.Ed.2d at 581. The public purpose behind Ch. 334 was the elimination of state-sanctioned sex discrimination. The significance and legitimacy of this purpose is beyond doubt.

   Furthermore, the means employed in Ch. 334 are reasonable and necessary to carry out the purpose of the statute.  The Supreme Court has cautioned that, "[w]hen the State is a party to the contract, 'complete deference to a legislative assessment of reasonableness and necessity is not appropriate because the State's self-interest is at stake.'"£ Energy Reserves, supra, 459 U.S. at 412-413 n. 14, 103 S.Ct. at 705 n. 14, quoting United States Trust Co. v. New Jersey, 431 U.S. 1, 26, 97 S.Ct. 1505, 1519, 52 L.Ed.2d 92 (1977). [***26]Nevertheless, the means employed in this case are not arbitrary or oppressive.  Ch. 334 does not even prohibit Burning Tree from discriminating. It simply provides that, if Burning Tree continues to discriminate, its property will be assessed in the same manner as the property of other taxpayers in the area.  On the other hand, Ch. 334 gives Burning Tree the choice of retaining its preferential tax assessment by discontinuing its discriminatory policies. Finally, Ch. 334 in no way requires Burning Tree to reimburse the State for any of the tax advantages it enjoyed in years previous to the enactment.  The elimination of sex-discrimination was not a subterfuge for the State to extricate itself from a financial obligation.  In our view, the statute imposes no greater impairment than was necessary to remove the imprimatur of the State from sex discrimination.

   III.

   Burning Tree contends that Ch. 334 is a "special law" passed in violation of Art. III, § 33, of the Maryland Constitution.  Art. III, § 33, provides that the General Assembly "shall pass no Special Law, for any case, for [*273] which provision has been made, by an existing General Law . . . ."£ [**376] This Court has identified [***27] a "special law" as "one that relates to particular persons or things of a class, as distinguished from a general law which applies to all persons or things of a class."£ Prince George's Co. v. B. & O.R. Co., 113 Md. 179, 183, 77 A. 433 (1910).

   Burning Tree's special law argument is that Ch. 870, enacted in 1974, created a class of clubs that were permitted to discriminate on the basis of sex while enjoying the "open spaces" tax benefit. That class was composed of Burning Tree, which wholly discriminates on the basis of sex, and those clubs that engage in periodic discrimination.  Burning Tree argues that, among all the members of that class, Ch. 334 imposes a burden only on Burning Tree, as the others remain exempt because of the periodic discrimination provision.

   The short answer to Burning Tree's argument is that, because in Part V of this opinion we invalidate the periodic discrimination provision, Burning Tree is not the only club in its self-described class that will be forced to change its policies or lose its tax benefit. Even if we were not to invalidate the periodic discrimination provision, however, Ch. 334 as enacted would not be a "special [***28] law."

   In Cities Service Co. v. Governor, 290 Md. 553, 567, 431 A.2d 663 (1981), this Court examined decisions applying § 33, concluding that "no mechanical rules for deciding cases" exist.  Nonetheless, the Court enumerated several factors to be considered in deciding whether a statute is a "special law."£ The Court reiterated the importance of these factors in State v. Good Samaritan Hospital, 299 Md. 310, 473 A.2d 892 (1984). The factors include: whether "the underlying purpose of the legislation is to benefit or burden a particular class member or members"; whether particular people or entities are identified in the statute; and what "the substance and 'practical effect'" of a statute is and not simply its form.  State v. Good Samaritan Hospital, supra, 299 Md. at 330, 473 A.2d at 902; Cities Service Co. v. Governor, supra, 290 Md. at 569, 431 A.2d at [*274] 672-673. Our past decisions have also considered whether particular entities or individuals sought and obtained special advantages under the legislation or if other similar entities or individuals [***29] were discriminated against by the legislation.  Cities Service Co., supra, 290 Md. at 570, 431 A.2d at 673. In deciding whether a law violates § 33 in applying to only certain members of a class, we have looked to whether the statute's distinctions are arbitrary or unreasonable.  Ibid.£ Moreover, this Court has held that some enactments were not special laws even though they applied to only a single entity. Such laws are permissible where unique circumstances render the entity a class unto itself, Cities Services Co., supra, 290 Md. at 568, 431 A.2d at 672, or where the enactment, although it affects only one entity currently, would apply to other similar entities in the future, Reyes v. Prince George's County, 281 Md. 279, 305-306, 380 A.2d 12 (1977); Potomac Sand & Gravel v. Governor, 266 Md. 358, 379, 293 A.2d 241 (1972).

   In light of these considerations, we turn to the merits of Burning Tree's assertion that it is the only member of its class which is singled out by Ch. 334.  The underlying purpose of Ch. 334 was to eliminate state conferred benefits [***30] for clubs that discriminate on the basis of sex. The legislation was not aimed at benefiting or burdening Burning Tree or any other particular club. Neither Burning Tree nor any other club is singled out by name in the statute.  Nor is Burning Tree the only club to which Ch. 334's prohibition on sex discrimination applies.

   Contrary to Burning Tree's contention that it is the only entity affected by Ch. 334, the prohibition of sex discrimination in that enactment applies to all current and future country clubs with open spaces contracts, including the other members of Burning Tree's self-described class.  While Ch. 334 purports to permit clubs to engage in sex discrimination on certain days or certain times, the prohibition against sex discrimination is otherwise applicable to all members of the class in such matters as membership, facilities, dues, etc. Thus, Ch. 334's prohibition against sex [*275] discrimination [**377] does not apply solely to Burning Tree.  Nor does the periodic discrimination exception in Ch. 334 exclude Burning Tree or any other club. If it were valid, it would be available to any entity, including Burning Tree, that otherwise qualifies and desires to take advantage [***31] of it.  Simply because a law prohibits an activity that an entity engages in, and provides an exception which the entity does not want to take advantage of, does not render it a special law. 

   This is clearly not a case where a single entity is affected by a law. Moreover, even if this were such a case, Ch. 334 would not be a special law. As noted above, laws affecting only a single entity have been upheld where they can apply, in principle, to other similarly situated entities. In Reyes v. Prince George's County, supra, we held that an act empowering the county government to sell bonds in order to acquire "any sports stadium or sports arena in Prince George's County" was not a special law. Although only one arena existed in Prince George's County at the time, we held the statute was not a special law because "if the county wishes to acquire or finance other sports facilities in the county, it may do so."£ 281 Md. at 306, 380 A.2d at 27. Similarly, in Potomac Sand & Gravel v. Governor, supra, a statute which prohibited dredging in Charles County wetlands was held not to be a special law [***32] even though it currently affected only one company.  The Court said: "[I]f others wished to dredge the wetlands of Charles County, they too would be prohibited from doing so."£ 366 Md. at 379, 293 A.2d at 252.

   The decision in Cities Services, supra, is not inconsistent.  In that case this Court held that a "mass merchandiser exception," which exempted certain retail service stations from the State's retail gasoline station divestiture law, was a special law because it benefited a single entity. However, because of the qualifying dates contained in the exemption, the single entity affected by the statute was the only entity that could ever be helped by the exemption. This is not [*276] true in the present case as, in the future, clubs with policies similar to Burning Tree's would be similarly affected by Ch. 334.

   IV.

   We now turn to Burning Tree's claim that Ch. 334 infringes upon the club members' freedom of association rights under the United States Constitution.

   Recent decisions by the Supreme Court have distinguished two types of associational rights.  Board of Directors of Rotary International v. Rotary Club , 481 U.S. 537, 544-45, 107 S.Ct. 1940, 1945, 95 L.Ed.2d 474 (1987); [***33] Roberts v. United States Jaycees, 468 U.S. 609, 617-618, 104 S.Ct. 3244, 3249-3250, 82 L.Ed.2d 462, 471 (1984). See also New York State Club Ass'n v. City of New York,    U.S.   ,    , 108 S.Ct. 2225, 2233-2234, 101 L.Ed.2d 1, 15-16 (1988). The first type, which has been called "freedom of expressive association," protects the right to associate "for the purpose of engaging in those activities protected by the First Amendment -- speech, assembly, petition for the redress of grievances, and the exercise of religion.  The Constitution guarantees freedom of association of this kind as an indispensable means of preserving other individual liberties."£ Roberts v. United States Jaycees, supra , 468 U.S. at 618, 104 S.Ct. at 3249, 82 L.Ed.2d at 471.

   The second type of associational right, "freedom of intimate association," protects "choices to enter into and maintain certain intimate human relationships . . . against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme.  [***34] In this respect, freedom of association receives protection as a fundamental element of personal liberty."£ Roberts, supra, 468 U.S. at 617-618, 104 S.Ct. at 3249, 82 L.Ed.2d at 471. See New York State Club Ass'n, supra,    U.S. at    , 108 S.Ct. at 2233-2234, 101 L.Ed.2d at 15-16; Rotary Club, supra, 481 U.S. at 544-45, [*277] 107 S.Ct. at 1945, 95 L.Ed. [**378] 2d at 484. n6

n6 In discussing the considerations that underlie this protection the Supreme Court has pointed to its earlier decisions protecting an individual's right to marry, Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978); an individual's right to make decisions regarding childbearing, Carey v. Population Services Intern., 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977); a parent's right to direct the education of his or her children, Smith v. Organization of Foster Families, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); and Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). See also Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977).

[***35]

   In contending that Ch. 334 infringes its members' rights to freedom of association, Burning Tree does not expressly draw a distinction between the two types of associational rights.  The club claims that it is seeking "First Amendment protection," which may suggest that it is relying on freedom of expressive association. n7£ The club, however, alleges no infringement of the types of activities which freedom of expressive association protects.  Rather, the club asserts that its "size, purpose, policies, selectivity, congeniality" and exclusivity imbue it with associational rights.  These are the characteristics listed in the Roberts and Rotary Club opinions as relevant in determining whether a group may enjoy intimate associational rights which would protect the group from antidiscrimination legislation.  Therefore, when analyzed, Burning Tree's argument would appear to be based on freedom of intimate association.

n7 There is language in Supreme Court opinions, however, indicating that freedom of intimate association may, to some extent, be grounded upon the First Amendment.  See Rotary Club, supra, 481 U.S. at 546, 107 S.Ct. at 1946, 95 L.Ed.2d at 484; Hishon v. King & Spalding, 467 U.S. 69, 78, 104 S.Ct. 2228, 2235, 81 L.Ed.2d 59 (1984).

[***36]

   A.

   The Supreme Court has neither precisely defined the scope of freedom of intimate association nor delineated the sort of relationships which enjoy its protection.  The Court has stated, however, that "[t]he personal affiliations that [*278] . . . suggest some relevant limitations on the relationships that might be entitled to this constitutional protection, are those that attend the creation and sustenance of a family."£ Roberts, supra, 468 U.S. at 619, 104 S.Ct. at 3250, 82 L.Ed.2d at 472. The Court added (468 U.S. at 619-620, 104 S.Ct. at 3250-3251, 82 L.Ed.2d at 472):
 
"Family relationships . . . are distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship. As a general matter, only relationships with these sorts of qualities are likely to reflect the considerations that have led to an understanding of freedom of association as an intrinsic element of personal liberty."
 
How far the protection extends beyond familial relationships is unclear. [***37]In Roberts, the Court stated (468 U.S. at 620, 104 S.Ct. at 3251, 82 L.Ed.2d at 473):

   "[T]he Constitution undoubtedly imposes constraints on the State's power to control the selection of one's spouse that would not apply to regulations affecting the choice of one's fellow employees . . . .  Between these poles, of course, lies a broad range of human relationships that may have greater or lesser claims to constitutional protection from particular incursions by the State."
 
 This language suggests that relationships should be viewed along a continuum from most to least intimate, with the most intimate associations afforded the greatest protection from government interference and the least intimate afforded lesser protection.  See Note, Private Club Membership -- Where Does Privacy End and Discrimination Begin?, 61 St. John's L.Rev. 474, 490 (1987).

   In Rotary Club, supra, 481 U.S. at 545, 107 S.Ct. at 1946, 95 L.Ed.2d at 484, the Court noted that it had "not held that constitutional protection is restricted to relationships among family members."£ Nevertheless, [**379] in no case [***38] has the Court actually extended the protection beyond the scope of familial relationships.  For example, in Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974), the [*279] Court held that a zoning ordinance which restricted occupancy of single-family dwellings to families or groups of no more than two unrelated persons did not infringe associational rights of six unrelated students who wanted to share a house.  The Court said: "The ordinance places no ban on other forms of association, for a 'family' may, so far as the ordinance is concerned, entertain whomever it likes."£ Village of Belle Terre v. Boraas, supra, 416 U.S. at 9, 94 S.Ct. at 1541, 39 L.Ed.2d at 804.

   In contrast, three years later, in Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977), the Court invalidated a zoning ordinance which limited occupancy to members of a single family but which defined 'family' so as not to include a grandmother living with her two grandsons.  The Court stated that the municipality's reason for [***39] the ordinance, namely the alleviation of overcrowding, was inadequate to justify the intrusion "on choices concerning family living arrangements."£ 431 U.S. at 499, 97 S.Ct. at 1936, 52 L.Ed.2d at 537. The Court's plurality opinion explicitly distinguished Belle Terre, saying: "The ordinance [in Belle Terre] affected only unrelated individuals . . . .  East Cleveland, in contrast, has chosen to regulate the occupancy of its housing by slicing deeply into the family itself."£ 431 U.S. at 498, 97 S.Ct. at 1935, 52 L.Ed.2d at 537.

   The Supreme Court in the Rotary Club case had little difficulty concluding that an anti-discrimination statute did not impair intimate associational rights.  Despite the fact that Rotary membership was not open to the general public, and that the size of the local Rotary clubs varied widely, with some having fewer than 20 members, the Court pointed out that the Rotary Club's goal was to be inclusive, not exclusive, and to consistently grow in membership. Furthermore, the Club's activities were conducted publicly "rather than carrying on their activities in an atmosphere [***40] of privacy."£ Rotary Club, supra, 481 U.S. at 547, 107 S.Ct. at 1947, 95 L.Ed.2d at 485.

   [*280] While the above-mentioned factors led the Court to conclude that the challenged provision did not impair the associational rights of Rotary Club members, the Court's opinion left unanswered whether an organization such as Burning Tree might enjoy associational protection where the Jaycees and Rotary Club did not.  In arguing that it does enjoy the protection, Burning Tree points to its size, approximately 440 members, and its founding as a small group of congenial men devoted solely to the game of golf. The club argues that it is selective in that individuals may not apply to join the club but must be proposed and seconded for membership by current members.  A prospective member's background is carefully screened, making the admission process last at least one year.  More candidates are proposed for membership than are actually admitted. Finally, the club points to its policy prohibiting discussion of business matters on the premises and the absence of non-golf activities at the club. Consideration of these factors does not, however, lead [***41] to the conclusion that the associational rights of Burning Tree's members have been unconstitutionally infringed.

   The size of Burning Tree's membership is not so small as to suggest that it is entitled to constitutionally protected intimate associational rights. n8£ In New York State Club Ass'n v. City of New York, supra, the Supreme Court rejected a claim that New York City's Human Rights Law (N.Y.C.Admin.Code § 8-102(9) (1986)) was facially invalid. The law defined as a public accommodation subject to anti-discrimination provisions any club which "has more than four hundred members, provides regular meal service and regularly receives payment for dues, fees, use of space, facilities, services, meals or beverages directly or indirectly from or on behalf of nonmembers [**380] for the furtherance of trade or business."£ In discussing the statute, the Court [*281] noted (   U.S. at    , 108 S.Ct. at 2233, 101 L.Ed.2d at 15):
 
"The clubs that are covered under the Law contain at least 400 members.  They thus are comparable in size to the local chapters of the Jaycees that we found not to be protected private associations in Roberts, and they are considerably [***42]larger than many of the local clubs that were found to be unprotected in Rotary, some which included as few as 20 members."

n8 Although the exact size of the membership of the club is not evident from the record, it appears to be in excess of 440 members, including resident and non-resident members.

   The evidence in the record with respect to the other factors is also less than compelling.  The assertion that club policy prohibits the discussion of business matters is not a sufficient basis for concluding that such discussions in fact do not take place.  As for selectivity, while it appears the club will not take just anyone, it is unclear what selective criteria are required for admission other than being a male interested in golf. In short, Burning Tree has not established that it qualifies for the intimate associational rights described in Roberts and Rotary Club.

   Other courts have generally been reluctant to recognize constitutionally protected freedom of intimate association rights beyond family [***43] relationships.  In Concord Rod & Gun Club, Inc. v. MCAD, 402 Mass. 716, 524 N.E.2d 1364, 1367 (1988), the Supreme Judicial Court of Massachusetts rejected a freedom of intimate association challenge to an administrative determination that a hunting and fishing club was a public accommodation subject to the state's anti-discrimination laws.  The court applied the factors articulated in Roberts and Rotary Club, and concluded as follows:
 
"The commissioner's findings leading to the conclusion that the Club does not have a selective process for admittance to membership establish with equal force that application of the anti-discrimination statute to the Club does not impair the members' rights of intimate association."

   [*282] In Isbister v. Boys' Club of Santa Cruz, Inc., 40 Cal.3d 72, 219 Cal.Rptr. 150, 707 P.2d 212 (1985), the Supreme Court of California held that the Boys' Club, a private organization open to any boy but not to girls, did not enjoy intimate associational rights.

   Commentators have differed somewhat as to the implications of Roberts and Rotary Club for various non-familial [***44] groups.  One writer has stated (Comment, Board of Directors of Rotary International v. Rotary Club of Duarte: Redefining Associational Rights, 1988 B.Y.U.L.Rev. 141, 152-153):
 
"Whether large, single-sex social organizations . . . can be afforded protection as 'intimate associations' is no longer . . . 'open to serious consideration.'£ Consequently, the freedom of 'expressive association' is now essentially the only available avenue for non-family type groups seeking constitutional protection."
 
Professor William P. Marshall, in Discrimination and the Right of Association, 81 Nw.U.L.Rev. 68, 82 (1986), pointed out that
 
"few organizations are likely to merit protection as 'friendships' because the protectable interest does not derive from simple membership, acquaintance, or casual alliance.  Even a small club with personal contact between all members is probably not sufficient to merit constitutional protection because the depth of commitment and strength of personal attachment between all members must be great to achieve any true semblance of intimacy." n9

n9 Professor Marshall goes on to argue that certain cultural affiliations, such as all-Irish or all-Jewish organizations, but not all-male organizations, should be protected, but states that "the organizations most likely to become the targets of state antidiscrimination efforts, such as civic, eating, service, athletic, and country clubs, are also the least likely to have a protectable constitutional interest."£ Marshall, Discrimination and the Right of Association , 81 Nw.U.L.Rev. 68, 84 (1986).

[***45]

   [*283] Other commentators take the position that some non-familial associations are protected.  See, e.g., Linder, Freedom of Association after Roberts v. United States Jaycees, 82 Mich.L.Rev. 1878, 1886 (1984). Thus, Professor Linder states that
 
[**381] "a state university regulation prohibiting single-sex organizations would be constitutionally suspect as applied to college fraternities or sororities.  State regulation of private bridge clubs . . . probably would be of even more dubious constitutionality."£ Ibid. n10

n10 But see, Comment, College Social Organizations, 75 Calif.L.Rev. 2117 (1987), arguing that collegiate fraternities are not sufficiently intimate to warrant protection, and Note, Private Club Discrimination Can Be Outlawed: Roberts v. United States Jaycees, 19 U.S.F.L.Rev. 413, 425 (1985), stating, "it is unlikely that any membership organization could provide the relationships or activities of the intensely private nature protected by the freedom [of intimate association]."

[***46]

   Whatever the scope of freedom of intimate association under the federal constitution, there is little support in cases or commentary for the notion that the right extends to a sizable, all-male organization devoted to playing golf. There is even less support for the idea that the right would extend to protect that type of organization from the sort of governmental interference complained of here.  If relationships are viewed along a continuum from most to least intimate with the most intimate (i.e., the family) having the greatest protection from interference by the State, we shall assume, for purposes of this case, that the Burning Tree Club is a more intimate organization than the Jaycees or Rotary, and that it may be protected from certain types of regulation which could be imposed upon the latter organizations.  The particular government interference complained of here, however, is not as great as the interference at issue in Roberts and Rotary Club.  In the present case, the State will simply withdraw a benefit from the club if it continues to discriminate, thereby placing the club on the same footing as comparably situated landowners.  Under the case law dealing [***47] with organizations' claims of constitutionally [*284] protected intimate associational rights, Ch. 334 would not appear to burden unconstitutionally any intimate associational rights of Burning Tree's members.

   B.

   Burning Tree argues that the State is unconstitutionally withdrawing a benefit from the club, which is otherwise qualified to receive it, as a punishment for the club's exercise of its constitutional right of association. In making this contention, Burning Tree relies on two cases, Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958), and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). In our view, and regardless of whether Burning Tree's argument is viewed as resting on freedom of expressive association or on freedom of intimate association, neither Speiser nor Perry supports Burning Tree's position.

   In Speiser, the Supreme Court held unconstitutional California's practice of denying state tax exemptions to veterans who declined to take a loyalty oath. The exemptions were otherwise available to all veterans under California [***48]law.  In striking down the California policy, the Court stated (357 U.S. at 519, 78 S.Ct. at 1338):
 
 "[T]he denial of a tax exemption for engaging in certain speech necessarily will have the effect of coercing the claimants to refrain from the proscribed speech. The denial is 'frankly aimed at the suppression of dangerous ideas.'£ American Communications Assn. v. Douds, supra [339 U.S. 382] at 402 [70 S.Ct. 674, 686, 94 L.Ed. 925 (1972)]."

   In Perry v. Sindermann, supra, 408 U.S. at 597, 92 S.Ct. at 2697, the Court held that a state government could not refuse to renew a teacher's contract solely because of his protected speech outside the classroom, as a government
 
"may not deny a benefit to a person on a basis that infringes his constitutionally protected interests -- especially, his interest in freedom of speech.  For if the [*285] government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited.  This would allow the government to 'produce [***49] a result which [it] could not command directly.'£ Speiser v. Randall, 357 U.S. 513, 526 [**382] [78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958)]. Such interference with constitutional rights is impermissible."

   While these cases stand for the proposition that the government generally may not deny benefits to persons because of the content of their speech, they are obviously distinguishable from the present case.  In both Speiser and Perry, the state's action had a direct, chilling effect on the content of an individual's speech.  In this case, the government is merely removing a tax benefit because of the club's discriminatory policies.  No First Amendment free speech right is involved in the present case.  We are unaware of any decision suggesting that the reasoning of Speiser and Perry extends to circumstances like those now before us.

   A more analogous case is Green v. Connally, 330 F.Supp. 1150 (D.D.C.), aff'd 404 U.S. 997, 92 S.Ct. 564, 30 L.Ed.2d 550 (1971). In Green, the United States District Court upheld the denial of tax-exempt status to racially discriminatory [***50] private schools against a challenge that the denial violated the schools' associational rights.  The court distinguished Speiser in language equally applicable to the present situation (330 F.Supp. at 1166-1167):
 
"Speiser involved an affirmative requirement imposed as a condition of obtaining the tax exemptions provided for veterans by the state constitution.  A statute made qualification for the exemption dependent on the filing of an oath that the applicant did not advocate the overthrow of the Government by force, violence or other lawful means.  Although the statute was construed by the state court to deny exemptions only to claimants who engage in speech that may constitutionally be punished, it was enforced through procedures, placing the burdens of proof and persuasion on the taxpayers, that denied the procedural [*286] safeguards required by the due process clause, and were held to interfere with the veterans' present freedom of speech.

   "In the case before us exemptions and deductions would be denied not on account of beliefs and associations but on account of acts and practices constituting discrimination among students on account of race -- [***51] acts contrary to a national policy that has constitutional ingredients.  If schools sincerely terminate those harmful activities they may obtain the exemption. In Speiser the statutory scheme was offensive because it operated to chill speech that was permissible, because of fears that the veterans might be unable to establish its permissibility.  It is not remotely suggested by intervenors that they fear lest their schools will undertake only activities that are innocent, i.e., not racially discriminatory, yet be wrongly condemned as discriminatory. Speiser certainly does not hold that a government acts impermissibly in withholding tax benefits from one who engages in activities that are reasonably and constitutionally deemed contrary to the government's policy."
 
As in Green, the denial of tax benefits in the present case is not based on "beliefs and associations, but on account of acts and practices constituting discrimination."

   Furthermore, the connection between the denial of a government benefit and the protected activity is not as direct in the present case as it was in Perry and Speiser.  In those cases the government benefit was available as a [***52]matter of course to all similarly situated individuals.  In Speiser, all veterans were entitled to the tax exemption; in Perry, teachers routinely retained their teaching positions.  In both cases the denial of the government benefit left the plaintiffs substantially disadvantaged in comparison with those similarly situated.  In the present case, the tax benefit which Burning Tree enjoys is not generally available to comparable landowners.  Thus, the removal of Burning Tree's benefit, rather than uniquely disadvantaging Burning Tree, simply puts the club on an equal footing with [*287] comparably situated landowners.  The less direct the connection between the denied government benefit and the protected activity, the less likely it is that the denial violates the associational rights claimed by the party to whom the benefit is denied.

   [**383] In Regan v. Taxation With Representation, 461 U.S. 540, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983), the Supreme Court upheld the Internal Revenue Service's denial of tax-exempt status to organizations engaged in lobbying, rejecting Taxation With Representation's argument that the IRS's action denied the [***53] organization a benefit because of the exercise of First Amendment rights.  The Court specifically distinguished Speiser and Perry, saying (461 U.S. at 545, 103 S.Ct. at 2001):
 
"TWR is certainly correct when it states that we have held that the government may not deny a benefit to a person because he exercises a constitutional right. See Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972). But TWR is just as certainly incorrect when it claims that this case fits the Speiser-Perry model.  The Code does not deny TWR the right to receive deductible contributions to support its non-lobbying activity, nor does it deny TWR any independent benefit on account of its intention to lobby.  Congress has merely refused to pay for the lobbying out of public moneys."

   As in Regan, the State in the present case is not punishing or prohibiting the exercise of any associational rights which Burning Tree's members might possess.  The State is simply declining to subsidize any organization that engages in certain discriminatory activities.  Just because Burning Tree's [***54]members may have associational rights does not oblige the State to subsidize the exercise of those rights. n11

 n11 Lyng v. International Union, UAW, 485 U.S. 360, 108 S.Ct. 1184, 99 L.Ed.2d 380 (1988), reiterates this principle.  In Lyng the Court upheld an amendment to the federal Food Stamp Act which denied food stamps to households where a member was on strike.  The amendment was challenged as denying union members' freedom of association.  The Court rejected the challenge saying, "the strikers' right of association does not require the Government to furnish funds to maximize the exercise of that right."£ 108 S.Ct. at 1190. The Court distinguished cases in which it had found that state practices violated First Amendment associational rights, as in NAACP v. Alabama ex. rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), and NAACP v. Claiborne Hardware Co., 458 U.S. 886, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982). The Court said (485 U.S. at    , 108 S.Ct. at 1190 n. 5, 99 L.Ed.2d at 389 n. 5):
 
"Exposing the members of an association to physical and economic reprisals or to civil liability merely because of their membership in that group poses a much greater danger to the exercise of associational freedoms than does the withdrawal of a government benefit based not on membership in an organization but merely for the duration of one activity that may be undertaken by that organization."
 
In the instant case, the government benefit is being denied, not because of membership in an organization, but because of Burning Tree's current discriminatory practices.

[***55]

   [*288] Other cases also support the view that a private entity's protected associational rights do not entitle the entity to government subsidies or endorsement of its activities.  In Hishon v. King & Spalding, 467 U.S. 69, 78, 104 S.Ct. 2229, 2235, 81 L.Ed.2d 59 (1984), the Supreme Court rejected a claim that applying Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq., to a law firm's hiring practices would infringe the firm members' rights of association, saying: "Invidious private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment, but it has never been afforded affirmative constitutional protection," quoting Norwood v. Harrison, 413 U.S. 455, 470, 93 S.Ct. 2804, 2813, 37 L.Ed.2d 723 (1973). In Norwood itself the Court rejected an argument that Mississippi was required to provide the same amount of assistance to private schools that it provided to public schools, regardless of whether the private schools practiced racial discrimination.  The Court said (413 U.S. at 462-463, 93 S.Ct. at 2809): [***56] 
 
"[A] State's special interest in elevating the quality of education in both public and private schools does not mean that the State must grant aid to private schools [*289] without regard to constitutionally mandated standards forbidding state-supported discrimination.  That the Constitution may compel tolerance of private discrimination in some circumstances does not mean that it requires state support for such discrimination."

   [**384] These cases make it clear that governments are under no obligation to sanction, subsidize or support discrimination by private entities, and that the failure to subsidize discriminatory entities does not unconstitutionally burden their associational rights.

   Finally, to whatever extent the State's denial of a preferential tax assessment is viewed as a burden on Burning Tree's members' rights of association, the State has a compelling interest justifying the imposition of such a burden.  The Supreme Court has recognized that restricting associational rights "may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational [***57] freedoms."£ Roberts v. United States Jaycees, supra, 468 U.S. at 623, 104 S.Ct. at 3252.

   In Bob Jones University v. United States, 461 U.S. 574, 103 S.Ct. 2017, 76 L.Ed.2d 157 (1983), the Supreme Court upheld the Internal Revenue Service's denial of tax-exempt status to racially discriminatory religious schools, saying, "the Government has a fundamental, overriding interest in eradicating racial discrimination in education . . . .  That governmental interest substantially outweighs whatever burden denial of tax benefits places on petitioners' exercise of their religious beliefs."£ 461 U.S. at 604, 103 S.Ct. at 2035, 76 L.Ed.2d at 181.

   The State of Maryland, as reflected in its Equal Rights Amendment and the numerous cases construing it, has made a commitment to equal rights for women which elevates the goal of eliminating state supported sex discrimination to a compelling state interest.  That compelling interest outweighs whatever burden this tax assessment legislation [*290] may have imposed on Burning Tree's associational rights.  Furthermore, the State's [***58] method of satisfying its interest is narrowly tailored to fulfill that purpose and is no more restrictive of associational freedoms than is necessary.

   V.

   We now turn to Burning Tree's E.R.A. challenge to Ch. 334.  Burning Tree asserts that it has standing to bring this challenge under the E.R.A., that the periodic discrimination provision of Ch. 334 violates the E.R.A., and that that provision is not severable from Ch. 334's prohibition against sex discrimination. The State argues that Burning Tree lacks standing to bring an E.R.A. challenge, that the periodic discrimination provision does not violate the E.R.A., and that, if it does, the provision is severable from the remainder of Ch. 334.  We agree with Burning Tree that it has standing to bring the challenge and that the periodic discrimination provision violates the E.R.A.  We agree with the State, however, that the provision is severable from the remainder of Ch. 334.

   A.

   The State maintains that neither Burning Tree nor its individual members have standing to raise an E.R.A. challenge.  First, the State reasons that the E.R.A. creates purely personal rights which cannot be asserted by a corporation like Burning Tree.  Second, [***59] the State argues that the club and its individual members lack standing as taxpayers because they suffer no direct injury from the periodic discrimination provision.  According to the State, Burning Tree and its members are trying to "leapfrog" or "bootstrap" standing in the hope that, if the periodic discrimination provision is ruled unconstitutional, it will also be held not severable from the remainder of the statute.

   With regard to the State's argument that a corporation cannot bring an E.R.A. claim other than in its capacity as a taxpayer, it has been said that whether constitutional protections are available to corporations as well as individuals [*291] "depends on the nature, history, and purpose of the particular provision."£ First National Bank of Boston v. Bellotti, 435 U.S. 765, 779 n. 14, 98 S.Ct. 1407, 1416-1417 n. 14, 55 L.Ed.2d 707 (1978). We note that this Court has entertained E.R.A. challenges brought by corporate entities. See Condore v. Prince [**385] George's County, 289 Md. 516, 425 A.2d 1011 (1981); Massage Parlors, Inc. v. City of Balto, 284 Md. 490, 398 A.2d 52 (1979). [***60] In neither of those cases, however, was the question of standing raised before this Court.  Because the parties in this case include two individual members of Burning Tree, who can certainly raise an E.R.A. challenge, and because we hold that both Burning Tree and its members have taxpayer standing to challenge Ch. 334, we need not decide whether the club would otherwise have standing to bring this suit.

   Under Maryland law, the doctrine of taxpayer standing is not as narrowly limited as it is under the law of some jurisdictions. n12£ "In Maryland, taxpayers have standing to bring suit to challenge the constitutionality of a statute when the statute as applied increases their taxes."£ Murray v. Comptroller, 241 Md. 383, 391, 216 A.2d 897, 901, cert. denied, 385 U.S. 816, 87 S.Ct. 36, 17 L.Ed.2d 55 (1966). See Inlet Associates v. Assateague House, 313 Md. 413, 440-441, 545 A.2d 1296, 1310-1311 (1988). In the instant case the State, acting pursuant to Ch. 334, has taken steps to increase the tax liability of Burning Tree by over $300,000.  Clearly, Ch. 334 as applied increases [***61]Burning Tree's tax burden.

n12 Cf. United States v. Richardson, 418 U.S. 166, 180, 94 S.Ct. 2940, 2948, 41 L.Ed.2d 678 (1974) (Powell, J., concurring); Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968).

   The State argues, however, that Burning Tree and its members lack standing because, according to the State, they suffer no direct tax injury from the challenged periodic discrimination provision.  The State's position is factually incorrect.  Burning Tree's tax burden is, indeed, greater as a result of the allegedly unconstitutional tax exemptions [*292] granted to other country clubs by the periodic discrimination provision.  See, e.g., Murray v. Comptroller, supra, 241 Md. at 391, 216 A.2d at 901-902, in which a taxpayer was accorded standing to challenge allegedly unconstitutional tax exemptions given to others.

   More generally, there is no requirement in Maryland law that the [***62] tax injury suffered in order to gain taxpayer standing must flow directly from the challenged portion of the statute.  The State cites no Maryland case holding that a taxpayer, whose tax burden is increased by a statute, lacks standing to challenge that statute in its entirety when the allegedly unconstitutional portion does not, by itself, directly increase his tax burden.

   Our decisions have not required the close nexus between the challenged portion of a statute and the tax burden incurred by the plaintiff which the State argues for here.  All that we have required is that the taxpayers' tax burden be increased, or even threatened to be increased, by the challenged law.

   Somewhat analogous to the present case is Citizens Planning and Housing Ass'n v. County Executive, 273 Md. 333, 329 A.2d 681 (1974), in which taxpayers were held to have standing to challenge the County Executive's reorganization of the Office of Planning and Zoning.  The plaintiffs alleged that the county executive's acts violated the separation of powers provision in a county's charter.  This Court accorded them standing even though they were clearly not directly injured by the county [***63] executive's alleged violation of separation of powers.  Rather they were indirectly injured in that the county executive's alleged violation arguably led to inefficient government operations, thereby raising taxes.  See also James v. Anderson, 281 Md. 137, 377 A.2d 865 (1977).

   Similarly, in Gordon v. Baltimore, 258 Md. 682, 267 A.2d 98 (1970), this Court held that a taxpayer had standing to challenge Baltimore City's acceptance of library books in violation of the terms of a gift.  Even though the plaintiff [*293] was not directly affected by the illegal act, he was given standing because the City's action might increase his tax burden.

   The cases in this Court generally stand for the principle that a taxpayer has standing to challenge a statute's constitutionality upon a showing that the statute, as applied, actually or potentially increases the plaintiff's tax burden. Therefore, [**386] Burning Tree has standing to challenge the periodic discrimination provision.

   B.

   The E.R.A. states: "Equality of rights under the law shall not be abridged or denied because of sex."£ In deciding whether Ch. 334 violates the E.R.A., we employ [***64] an analysis similar to that used in Burning Tree Club v. Bainum, supra. We must first determine whether state action is present and, if so, whether the periodic discrimination provision abridges equality of rights on the basis of sex.

   All of the opinions in Burning Tree v. Bainum took the position that a finding of state action is necessary in order for there to be a violation of the E.R.A.  305 Md. at 73, 501 A.2d at 827 (Murphy, C.J.), 305 Md. at 86, 501 A.2d at 833-834 (Rodowsky, J.), 305 Md. at 90, 501 A.2d at 836 (Eldridge, J.).  The State suggests that "'state action' is more difficult to find" in the enactment of Ch. 334 because Ch. 334 "does not confer a tax break 'pursuant to a statutorily created state administrative proceeding, in which it is determined that the private party is engaged in statutorily sanctioned sex discrimination.'"£ (State's brief, p. 25).

   In Bainum, however, a majority of this Court took the position that the enactment of legislation which on its face draws classifications based on sex is state action sufficient to invoke the E.R.A.  Thus, Judge Rodowsky wrote: "[T]he General Assembly [***65] has included in Ch. 870 a prohibition against discrimination based on sex. That legislation is state action. Obviously the equality 'under law' which the [*294] E.R.A. guarantees embraces an enactment by the General Assembly."£ 305 Md. at 86, 501 A.2d at 833-834. Similarly, Judges Eldridge, Cole and Bloom expressed the view that "Ch. 870 on its face expressly draws classifications which implicate the E.R.A."£ 305 Md. at 92, 501 A.2d at 837. Ch. 334 in this case, as did Ch. 870 in Bainum, draws explicit distinctions based on sex. The statute distinguishes between sex discrimination and other types of discrimination, as well as between periodic gender-based discrimination and total gender-based discrimination.  Thus, the enactment of Ch. 334 is itself state action.

   As to whether the periodic discrimination provision abridges equality of rights because of sex, the analytically indistinguishable Bainum case, once again, is our guidepost.  In that case Judge Rodowsky found the primary purpose provision unconstitutional on its face because it "single[d] out for special exception from an otherwise uniformly applicable [***66] anti-discrimination measure private discrimination of a certain type -- sex -- and to a certain degree -- total -- which neither the State nor a private club receiving a tax exemption could otherwise practice."£ 305 Md. at 85, 501 A.2d at 833. Judges Eldridge, Cole and Bloom expressed the same view, stating that Ch. 870 was fatally flawed in drawing
 
"an express distinction between race, color, creed and national origin discriminations on the one hand, and sex discrimination on the other hand.  It also expressly distinguishes between two types of sex discrimination, allowing sex discrimination when it is the 'primary purpose' of the club and disallowing it in other situations."£ 305 Md. at 92, 501 A.2d at 837 (Eldridge, J.).

   Ch. 334 fails in exactly the same way that Ch. 870 did.  On its face Ch. 334 makes classifications using sex as a factor.  First, the statute distinguishes between sex discrimination and other types of discrimination.  Second, the statute creates a classification that distinguishes between discrimination on the basis of sex which is periodic (permitted) and discrimination on the basis of sex which is [***67] total [*295] (prohibited).  Indeed, Judge Rodowsky's opinion in Bainum expressly stated that the periodic discrimination provision was invalid for the same reasons as the primary purpose provision. 305 Md. at 87, 501 A.2d at 834.

   As the earlier Bainum case made clear, the burden of justifying these classifications falls upon the State.  The level of scrutiny to which the classifications are subject is "at least the same scrutiny as racial classifications."£ 305 Md. at 98, 501 A.2d at 840). The State's justifications for the statute are that: (1) there has been no [**387] showing that "a substantial discrimination" is at issue; (2) the periodic discrimination provision permits such activities as "all-male or all-female member guest tournaments and professional-amateur tournaments for women or men only"; and (3) physical differences between men and women might affect the speed of their respective golf games, thereby justifying separate playing times in order to maximize efficient use of the golf facilities.  (State's brief, pp. 23-28).

   The State's first argument is without merit.  The "periodic discrimination" provision, [***68] on its face, permits the segregation of facilities on the basis of sex. Plainly, under prior holdings of this Court, state action providing for segregation based upon sex, absent substantial justification, violates the E.R.A., just as segregation based upon race violates the Fourteenth Amendment.  See Burning Tree Club v. Bainum, supra, 305 Md. at 95-98, 501 A.2d at 838-840. We reject the State's views that only a "substantial" discrimination requires justification of the State, and that there was no substantial discrimination shown in this case.  Any statute which discriminates on the basis of sex requires justification.  The E.R.A. "absolutely forbids the determination of such 'rights,' as may be accorded by law, solely on the basis of one's sex."£ Burning Tree Club v. Bainum, supra, 305 Md. at 70, 501 A.2d at 825 (Murphy, C.J.).

   The State's arguments that Ch. 334 is justified because it permits all-male and all-female sports events and because it recognizes distinctions in the golf abilities of men and [*296] women are also unpersuasive.  We need not here decide whether single-sex golf tournaments or similar practices, [***69] which the State would deem insubstantial, are permissible under the E.R.A. Nothing in the statute narrowly confines the permitted sex discrimination to such practices.  In fact, single-sex golf tournaments may not even be encompassed by the periodic discrimination provision, which relates to excluding members of one sex on a "day" or "time" basis but not an "event" basis.  The statute, on its face, permits a club to engage in periodic sex discrimination in any of its facilities for any reason at all.  It would permit the exclusion of women, for example, on four or five days of the week, just so the exclusion is not for all seven days.  In order to justify a racially or sexually discriminatory statute, it is not enough for the State to claim legitimate interests which it seeks to further.  Under strict scrutiny, legislation must be narrowly tailored and precisely limited to achieving those legitimate ends.  In an equal protection context, the Supreme Court said in Dunn v. Blumstein, 405 U.S. 330, 343, 92 S.Ct. 995, 1003, 31 L.Ed.2d 274 (1972):
 
"It is not sufficient for the State to show . . . a very substantial state interest.  In [***70] pursuing that important interest the State cannot choose means that unnecessarily burden or restrict constitutionally protected activity.  Statutes affecting constitutional rights must be drawn with precision . . . and must be 'tailored' to serve their legitimate objectives . . . .  And, if there are other, reasonable ways to achieve those goals with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference."

   Consequently, we conclude that the periodic discrimination provision of Ch. 334 violates the E.R.A.

   C.

   The final issue is whether the periodic discrimination provision is severable from the remainder of Ch. 334.  Resolving questions of severability "involves ascertaining what would have been the intent of the Legislature had the [*297]partial invalidity been known."£ Burning Tree Club v. Bainum, supra, 305 Md. at 82, 501 A.2d at 832 (Murphy, C.J.).  Certain principles are pertinent in determining that intent.  One is the strong presumption "that a legislative body generally intends its enactments to be severed if possible."£ O.C. Taxpayers v. Ocean City, 280 Md. 585, 600, 375 A.2d 541, 550 (1977). [***71] See also Turner v. State, 299 Md. 565, 576, 474 A.2d 1297, 1303 (1984); Cities Service Co. v. Governor, supra, 290 Md. at 575, 431 A.2d at 675. A second principle is that, "when the dominant purpose of a statute may largely be [**388]carried out notwithstanding the invalid provision, courts will ordinarily sever the statute and enforce the valid portion."£ Davis v. State, 294 Md. 370, 384, 451 A.2d 107, 114 (1982). See also, Turner v. State, supra; Cities Service Co. v. Governor, supra.

   In Burning Tree Club v. Bainum, supra, the majority concluded that it was not "the dominant purpose of the General Assembly . . . to enact a bar against sex discrimination which was to operate absent the primary purpose provision."£ 305 Md. at 83, 501 A.2d at 832. The legislative history of Ch. 334, on the other hand, clearly shows that the "dominant purpose" of the General Assembly in enacting Ch. 334 was to reinstate sex as a prohibited basis for discrimination, regardless of the validity [***72] of the periodic discrimination provision. 

   Ch. 334 was introduced as S.B. 483 by Senator Bainum, a plaintiff in the Burning Tree Club v. Bainum case.  As initially introduced the bill restored the language prohibiting sex discrimination which this Court struck down in Bainum. There was originally no periodic discrimination provision.  On February 28, 1986, the Attorney General's office wrote to Senator Bainum in response to his request for an opinion as to the constitutionality of a bill containing the periodic discrimination provision.  The Attorney General's letter stated that S.B. 483 would not be rendered unconstitutional by the periodic discrimination provision.  The Attorney General reasoned that
 
[*298] "the 'periodic discrimination' provision was not challenged in the [Bainum] litigation and thus was not declared invalid. Thus, presumably it is still a part of existing law -- although in a dormant state because it is an exception to a ban on sex discrimination that has been declared invalid and presently unenforceable.  The proposed amendment to Senate Bill 483 would not reintroduce into the law the 'periodic discrimination' provision.  It would simply [***73] leave in the law a provision that is already there and that has not yet been definitely judicially scrutinized."

   Although the Attorney General's analysis of Bainum's disposition of the periodic discrimination provision was incorrect, n13 the General Assembly did follow the Attorney General's advice.  This shows that the inclusion of the periodic discrimination provision, rather than a dominant legislative purpose, was simply intended to be a reenactment of "a provision that is already there."

n13 Chief Judge Murphy's opinion in Bainum, announcing the judgment of the Court, pointed out that the periodic discrimination provision of Ch. 870 fell, along with the primary purpose provision and the ban on sex discrimination. 305 Md. at 84, 501 A.2d at 832.

   In a favorable Committee Report on Senate Bill 483, which became Ch. 334, the Bill's purpose was described as
  
"reinstat[ing] in the law the prohibition on sex discrimination by country clubs who receive the preferred country club [***74] assessment on their real property.  The bill does this by removing the exemption to the prohibition. This exemption to the prohibition is that the primary purpose of the clubs may be . . . serving or benefiting members of a particular sex.

   "Last December the Court of Appeals utilizing the severability concept struck down the prohibition on discrimination on account of sex, because it had the exemption for country clubs. This is the severability concept used by the courts, and it is the subject addressed in this bill."
 
[*299] This statement makes clear that the dominant purpose of the enactment was restoring the prohibition against sex discrimination. The failure to mention the periodic discrimination provision in the Report confirms that the General Assembly did not view the provision as an important addition.

   In a May 7, 1986, letter from the Attorney General to the Governor, prior to his signing Ch. 334 into law, the Attorney General expressed the view that the periodic discrimination provision would be severable. The Attorney General reiterated his view as to the Bainum decision's effect on the periodic discrimination provision and stated as follows (emphasis added): [***75] 
 
"This letter [of Feb. 28] was distributed to members of the Senate Budget and Taxation [**389] Committee and the Counsel to the General Assembly appeared before the Committee on February 28, 1986 to explain the advice.  At that time, the Committee Chairman specifically asked whether Senate Bill 483 would be severable from the periodic discrimination exemption and was advised that it would be.  The severability issue was also raised when Senate Bill 483 was before the House Ways and Means Committee . . . as members debated whether an amendment to the bill was needed to insure its constitutionality . . . .  After the February 28, 1986 letter of advice was distributed to committee members, the decision was apparently reached that it was not necessary to amend the bill or add a severability clause . . . .

   * * *

   "In light of this legislative history, it is our opinion that Senate Bill 483 is constitutional and would be severable from the periodic discrimination provision of § 8-214 . . . ."
 
The General Assembly's being informed that the periodic discrimination provision would be severable, further buttresses the conclusion that the dominant purpose of Ch. 334 was to prohibit sex [***76] discrimination, regardless of the presence or absence of the periodic discrimination provision.

   [*300] We hold, therefore, that the periodic discrimination provision is invalid and severable. The prohibition against sex discrimination in § 8-214 of the Tax-Property Article remains viable and applicable to Burning Tree.

   JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY VACATED, AND CASE REMANDED TO THAT COURT FOR THE ISSUANCE OF A DECLARATORY JUDGMENT IN ACCORDANCE WITH THIS OPINION.  PLAINTIFFS TO PAY COSTS.

 DISSENTBY: McAULIFFE

DISSENT: McAULIFFE, Judge, dissenting.

   I.

   Burning Tree contends in this case, contrary to its original position in Burning Tree Club v. Bainum, 305 Md. 53, 501 A.2d 817 (1985) (Burning Tree I) that the so-called "periodic discrimination" provision violates the E.R.A.  It does so in light of the majority view of Burning Tree I that the "periodic discrimination" provision violated the E.R.A.  Of course, Burning Tree's position in this respect is taken, not from conviction that Burning Tree I was correct, but rather to lay the underpinning for its argument that the "periodic discrimination" provision cannot be severed from the [***77] remainder of Chapter 334 and, hence, the entire act is unconstitutional.

   The E.R.A. declares that "[E]quality of rights under the law shall not be abridged or denied because of sex."£ I agree with the position taken by Chief Judge Murphy in announcing the judgment of the Court in Burning Tree I, in which Judges Smith and Orth concurred.  There, he recognized that the E.R.A. was prompted by the long history of denial of equal rights for women.  The E.R.A., he said, "flatly prohibits gender-based classifications, either under legislative enactments, governmental policies, or by application of common law rules, in the allocation of benefits, burdens, rights and responsibilities as between men and women."£ 305 Md. at 64, 501 A.2d 817. He pointed out that our cases, and those of other jurisdictions having [*301] similar E.R.A. provisions in their constitutions, clearly indicate that they prohibit unequal treatment imposed by law as between the sexes. Id. at 70, 501 A.2d 817. He noted that these cases shared a common thread -- "they generally invalidate governmental action which imposes a burden on one sex but not [***78] the other, or grants a benefit to one but not the other."£ Id.£ The equality between the sexes mandated by the E.R.A., he said, is of "rights" of individuals "under the law," as to which the E.R.A. absolutely forbids their determination solely on the basis of one's sex. Id.£ In this formulation there must be a denial or abridgement of equal rights under the law as between men and women, absent which the E.R.A. has no application.

   In enacting Chapter 334, and including the "periodic discrimination" provision as an exception to the general proscription [**390] against sex discrimination in the granting by country clubs of "membership and guest privileges," the legislature manifestly determined that it was not inconsistent with the E.R.A. or with the general prohibition against sex discrimination, to permit, on an equal basis, the exclusion of one sex, or the other from the club's activities or facilities "on specific days or at specific times."£ The obvious purpose of this provision -- one of long duration in the operation of country clubs which antedates by many years the enactment of the E.R.A. -- is to permit country clubs participating in the open space program to hold "men's or [***79]women's golf or tennis tournaments, or to . . . [permit] men's or women's days or times on the course or courts, or to otherwise . . . [permit] the continuance of time allocations that traditionally had been treated as reasonable and non-discriminatory even though based on sex classification."£ Plainly the exception does not smack of a nefarious state-sponsored scheme to invidiously discriminate against men or women solely on account of their sex; it simply does not apportion or distribute benefits or burdens unequally among the sexes within the contemplation of the E.R.A.

   Of course, I recognize that a statutory provision, although couched in gender neutral terms, may be applied in [*302] an invidiously discriminatory manner and thus constitute a violation of the E.R.A.  While I agree with the Court that the provision could have been more narrowly and artfully drawn, it is not facially at odds with the E.R.A.  In my view, neither the legislature in proposing the E.R.A. or the people in adopting the amendment ever dreamed that it would be taken to such extreme lengths as to, in effect, virtually mandate a form of "togetherness" desired by neither sex. Such an interpretation, [***80]I think may well threaten to undermine the continuing acceptance of the E.R.A. itself, a dreadful result indeed.

   II.

   If the "periodic discrimination" provision is unconstitutional, I do not agree that it is severable from the remainder of the statute.

   The majority recites, and then relies upon, the principle that "a legislative body generally intends its enactments to be severed if possible."£ Majority opinion at [297].  That is a valid principle, and it is backed up by Article 1, § 23, Maryland Code (1957, 1987 Repl.Vol.).  What the majority here apparently overlooks, but what a different majority did not overlook in Burning Tree I, is that the principle does not apply when the invalid portion of a statute is an exception to a prohibition.

   A long established principle of statutory construction in determining severability questions, is that where the Legislature enacts a prohibition with an excepted class, and a court finds that the classification is constitutionally infirm, the court will ordinarily not presume that the Legislature would have enacted the prohibition without the exception, thereby extending the prohibition to a class of persons whom the Legislature clearly intended [***81] should not be reached.  Burning Tree I, 305 Md. at 82 [501 A.2d 817], quoting from State v. Schuller, 280 Md. 305, 319, 372 A.2d 1076 (1977).
 
To the same effect, see 2 Sutherland Statutory Construction § 44.13 (4th ed.), stating:

   [*303] When an exception, exemption, proviso, or any clause which limits the scope of an act's applicability is found to be invalid, the entire act may be void on the theory that by striking out the invalid exception the scope of the act has been widened and therefore cannot properly represent the legislative intent.  To extend the scope of an act's operation by invalidating a provision of limitation while allowing the remainder to continue in effect invites criticism on the ground that it amounts to judicial legislation.  (footnotes omitted).
 
During the 1988 session of the General Assembly, after this Court had made clear that this was the law followed in Maryland, House Bill 844 was introduced to amend Art. 1, § 23 of the Maryland Code by adding the following language:

   [**391] The presumption of severability of statutes under this section applies even if the invalid portion [***82] of a statute is an exception to a prohibition.
  
The bill did not pass.  The law remains as it was.  The first part of ch. 334 constituted a general prohibition of the practice of discrimination.  The second part may be considered an exception to the general prohibition.  There is, therefore, no presumption of severability in this case.

   The presumption, even when applicable, serves only as an aid in determining probable legislative intent.  And, as this Court pointed out in O.C. Taxpayers v. Ocean City, 280 Md. 585, 375 A.2d 541 (1977), we look not to the actual intent of the legislature in passing the statute, but rather to what would have been the intent of the legislative body if it had known that the statute could be only partially effective.  In the context of the case before us, the question is whether the legislature would have imposed the absolute ban of the first section of the statute had it known that the exception in the second section would be declared invalid. I cannot say with any confidence that the legislature would have done so, and therefore I decline to legislate by the scalpel of severance.

   [*304] I am struck by the fact that [***83] when the legislature considered ch. 334 in 1986, it had just been through this entire exercise with the same statute.  By ch. 870 of the Acts of 1974, the legislature had imposed upon participating country clubs a general prohibition against discrimination, immediately followed by exceptions for clubs primarily intending to benefit a particular sex, and clubs which excluded certain sexes only on certain days and at certain times.  On December 23, 1985, just prior to the opening of the 1986 session of the General Assembly, this Court held the primary purpose exception was unconstitutional and, specifically stating that the Court would not indulge a presumption of severability when the invalidated statute was an exception to a general prohibition, refused to sever.  The Court said that "severing the primary purpose provision would make the prohibition against sex discrimination operate as to single-sex country clubs and thereby enlarge [the] prohibition beyond its reach as enacted."£ Burning Tree I, 305 Md. at 82, 501 A.2d 817. Six weeks later, the bill we now consider was introduced.  It is inconceivable to me that the legislature could have misunderstood [***84] the clear language of Burning Tree I when it set about "fine tuning" the exception in an effort to make it constitutional.  The legislature did not make a radical change in an effort to escape this Court's decision of non-severability.  Quite the contrary, it employed the same approach it had previously taken, simply deleting the primary purpose clause from the exception.  If ever a legislative body had a right to believe that if its second attempt at defining an exception also proved lacking, it simply would be sent back to the drafting board, and not suffer the enactment of a prohibition far more sweeping than it had approved, it was the General Assembly of 1986.

   The exception in Chapter 334 was intended, I believe, to be an integral part of the bill.  Its genesis does not date to the drafting of the 1986 Act, but to a Senate amendment to the 1974 Act.  The legislators apparently did not wish to pass a bill that would preclude country clubs from holding men's or women's golf or tennis tournaments, or from [*305] establishing men's or women's days or times on the course or courts, or to otherwise proscribe the continuation of time allocations that traditionally had been treated [***85] as reasonable and non-discriminatory even though based on sex classification. When the 1974 Act was declared unconstitutional, and Senate Bill 483 was introduced, the exception was included in the original draft.  Constituents then reminded their representatives of the need for the exception. n1£ The Senate Budget and Taxation Committee Floor Report assured the membership that passage of the bill would not affect the ability of the clubs to "have such activities as men's/women's [**392] days or tournaments."£ Every member of the 1986 General Assembly voting for Senate Bill 483 had the right to assume that the bill would either survive as a whole or fail as a whole, and to be confident that we would not rewrite their legislation into the unlimited prohibition they had twice attempted to avoid.

n1 See, e.g., the letters of Doctor Luther Gray, past president of Congressional Country Club, and Mr. Jerome Powell on behalf of the Chevy Chase Club, contained in the record of the legislative history of Senate Bill 483, Department of Legislative Reference.

[***86]

   The method by which the legislature structured the exception is also significant.  It did not say, as the majority suggests by the use of the term "periodic discrimination," that discrimination was generally proscribed but that certain discrimination would be permitted.  Instead, the legislature proscribed discrimination based on sex, and then defined discrimination so as not to include exclusion of either sex on specific days or at specific times.  The prohibition of "discrimination based on sex" in subsection (a) is no broader than the specific definition of that term contained in subsection (b).  I can think of no more obvious way to change the intent of the legislature than to judicially excise the limiting definition while leaving the balance of the statute intact.

   Whether the legislature would have enacted Senate Bill 483 with no limiting definition of what it meant by sexual [*306] discrimination is entirely conjectural.  The system of property tax assessment agreements that this legislation would affect is obviously perceived as beneficial to the State and its political subdivisions.  In addition to the preservation of open spaces, there are obvious economic advantages [***87] that I believe the legislature could find significantly outweigh the tax concessions made.  The history of this legislation indicates that the General Assembly did not wish to impose unnecessary and unwanted restrictions on country clubs, or to unnecessarily disturb an arrangement that is of benefit to the State.  My best judgment is that if made aware the exception was overly broad, the legislature would have attempted to spell out an exception that would largely comport with existing practices of the country clubs and at the same time satisfy this Court's legitimate concern with overbreadth.  I cannot say with any measure of confidence that the legislature would have passed this bill without the definition subsection that spelled out its true intent, and I therefore respectfully dissent from the holding that the statute is severable. 

ATTMAN/GLAZER P.B. COMPANY v. MAYOR AND ALDERMEN OFANNAPOLIS 
No. 115, September Term, 1986
 
Court of Appeals of Maryland
 
314 Md. 675; 552 A.2d 1277; 1989 Md. LEXIS 14

 February  8, 1989

   SUBSEQUENT HISTORY: [***1] Motion for Reconsideration Denied March 28, 1989. 

PRIOR HISTORY:  
Certiorari to the Court of Special Appeals, (Circuit Court for  Anne Arundel  County - Judge James C. Cawood, Jr.).

DISPOSITION: JUDGMENT AFFIRMED, WITH COSTS.

CORE TERMS:  zoning, conditional use, space, aldermen, parking, conditional, municipality, off-street, city council, municipal, settlement agreement, office building, recommendation, new application, parking garage, basement, rezoning, invalid, parcel, zoning classification, urban renewal, active use, reclassification, consolidated, developer, occupancy, modified, map, contracting, independent judgment

COUNSEL: Steven R. Migdal (Manis, Wilkinson, Snider & Goldsborough, Chartered, on the brief) all of Annapolis, Maryland, for appellant.

   Gary M. Elson, Assistant City Attorney (Jonathan A. Hodgson, City Attorney, on the brief), both of Annapolis, Maryland, for appellee.

JUDGES: Murphy, C.J., Eldridge, Cole, Rodowsky, Couch * and McAuliffe, JJ., Charles E. Orth, Jr., Associate Judge of the Court of Appeals (retired, Specially Assigned).

* Couch, 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: [*676] [**1278] We are here concerned with the extent to which a municipality may "settle" the appeal of a zoning or similar land use case.  We conclude that although a municipality may enter into a binding agreement concerning certain aspects of a land use case on appeal, it may not contract away the exercise [***2] of its zoning power.

   The property in question is bounded by Northwest, Calvert, and Clay Streets in the City of Annapolis, and is currently improved by a four-story office building. The property has had a rather difficult development history, involving the urban renewal efforts of the city, litigation between the city and the developer, and a cloudy zoning classification picture.  The property consists of two parcels, 7D and 17, which were acquired and assembled by the city as a part of an urban renewal project.  When originally placed in the city's Urban Renewal Plan, n1 parcel 7D was designated for neighborhood commercial and business use, and parcel 17 for residential use.  Attman/Glazer P.B. Company (hereinafter "AG") successfully bid for the right to develop the land, and in 1977 filed an application for a change in the Urban Renewal Plan.  Proposing construction [*677]of a commercial office building, AG asked that the two parcels be designated for commercial use and that approval be given for construction.

n1 Code provisions dealing with urban renewal were codified at Chapter 20A of the Annapolis City Code (1969).  Following recodification, the current provisions are now contained in Chapter 2.56 of the Code of the City of Annapolis (1986).

[***3]

   AG's 1977 application is not in this record.  We infer from the records which are before us that AG originally sought two things: a change in the classification of the property in the Urban Renewal Plan, and approval of a conditional use. Precisely what effect a change in classification in the Urban Renewal Plan was intended to have on the underlying zoning classification of the property is not clear.  It does not appear that the various use designations approved in the Urban Renewal Plan ever found their way onto the city's zoning map by means of a comprehensive (or other) map amendment.  Rather, it appears that at the time, all parties considered the changes made in the Urban Renewal Plan to be fully effective for purposes of development, without the necessity of corresponding [**1279] changes to the zoning map, and apparently without the necessity of resubdividing the property before construction.

   We note that the procedures followed in the amendment of the Urban Renewal Plan were virtually the same as those prescribed for a zoning map amendment. These procedures involved consideration and recommendation by the Annapolis Planning and Zoning Commission, notice to the public, and a public [***4] hearing before the ultimate zoning authority, the mayor and aldermen sitting as the city council. n2£ For purposes of this case, we need not decide the current zoning classification of this property, or the effect of any inconsistency that may currently exist between the requirements of the city's urban renewal code and its zoning code. n3£ Nor need we decide whether the conditional use [*678]mechanism was properly or necessarily utilized in this case. n4£ The parties proceeded on the assumption that reclassification of the property in the Urban Renewal Plan was sufficient in lieu of formal rezoning, and that conditional use approval was required.  Indulging those same assumptions in this case allows us to reach the question of a municipality's right to "settle" a zoning appeal, and we therefore proceed on that basis.

n2 Prior to 1985, the name and style of the municipal corporation was "mayor and aldermen of the City of Annapolis."£ As a result of changes in the city charter, the name of the municipal corporation is now "City of Annapolis."

n3 At the time the city approved AG's initial request for redesignation, § 22-30(f) of the Code of the City of Annapolis provided that in the event of an inconsistency between the Urban Renewal Plan and the zoning code, the provisions of the plan would govern.  However, that language was repealed by Ordinance 12-81, effective November 17, 1981.

[***5] 

n4 The term "conditional use" is not defined in Article 66B of the Maryland Code (1988 Repl.Vol.), which comprises the grant of authority from the State to municipalities to exercise zoning powers.  A conditional use is, however, essentially the same as a special exception, which is defined by state law at Article 66B, § 1.00.  According to the Annapolis City Code, a conditional use is one which, because of its unique characteristics, cannot properly be classified as a permitted use in any particular district or districts.  Accordingly, in addition to the uses that are expressly permitted in each zone, the Annapolis zoning code specifies conditional uses that may be appropriate in that zone if certain criteria are met and appropriate conditions imposed.  The problem in this case stems from the fact that an office building is a permitted use in a commercial district, and is neither a permitted nor conditional use in a residential zone.  The city suggests that at the time permission was being sought for the construction of this office building, the city code required that the application be treated as if it were a part of a planned development, and thus the conditional use process was required.  Although § 2.08 of Article 66B contemplates that the power to hear and decide special exceptions will be reposed in a board of zoning appeals, and the City of Annapolis has created such a board, conditional use applications in the city are decided by the city council.

[***6]

   AG's initial request was granted, and by Resolution 58-77 the mayor and aldermen amended the Urban Renewal Plan to change the designation of Parcels 7D and 17 to commercial use.  The resolution also permitted the erection of a professional office building, on the condition that the owner of the building provide 252 parking spaces. Those spaces could be located on-site, or on other property within 500 feet of the building.  By Resolution 66-77, a conditional use for the proposed office building was approved.  That conditional [*679] use authorization expired when AG was unable to undertake construction within a prescribed time.  A new application for conditional use was filed, and by Resolution 1-81 the mayor and aldermen granted a new conditional use, requiring 18 on-site parking spaces and 238 additional parking spaces within 600 feet of the property.  The resolution further provided that in lieu of providing some or all of the 238 additional spaces, the owner could make available to the building's tenants or their employees a comparable number of passes for use on the city's shuttle bus system.

   Construction of the building commenced, albeit only after AG obtained a writ of mandamus [***7] from the Circuit Court for Anne Arundel County directing the city to issue a building permit. n5£ Shortly thereafter, AG [**1280] sought an amendment to the conditional use to permit active use of a portion of a basement which had theretofore been approved only for housing of mechanical equipment.  The mayor and aldermen approved the active use of 15,480 square feet of the basement, on condition that AG provide 51 new off-street parking spaces and comply with the parking requirements set forth in Resolution 1-81.  One week later, the mayor and aldermen filed a modified resolution, declaring that the new conditions and those remaining from Resolution 1-81 were interdependent and, if any condition of either resolution were declared invalid or modified by any court, the entire conditional use would stand rescinded.  AG appealed, contending that the requirement of creating new parking spaces was arbitrary, capricious, and impossible to fulfill, and challenging the attempt of the modified resolution to insulate the actions of the mayor and aldermen from judicial review. n6

n5 The director of planning and zoning had refused to approve the issuance of a building permit, for reasons not apparent in this record.

[***8] 

n6 The in terrorem provision of the modified resolution was subsequently declared invalid by the Circuit Court for Anne Arundel County, and no appeal has been taken from that determination.

   [*680] The mayor and aldermen, in their capacity as the municipal corporation, were granted leave to intervene, and filed a demurrer and answer. From a memorandum of law filed by AG, we learn that it did not argue that the requirement of providing 51 additional parking spaces was arbitrary.  Indeed, such an argument would likely have been futile, because the requirement followed § 22-122(21) of the city zoning code, which required one off-street parking space for each 300 square feet of gross floor area of business and professional office buildings.  Rather, AG argued that the requirement of providing 51 new spaces within 500 feet of the building was unreasonable and virtually impossible to perform, due to the lack of land in that area which might be purchased and converted to off-street parking. AG argued that it had produced testimony demonstrating the reasonableness and feasibility of developing [***9] 51 additional but existing off-street parking spaces. It pointed out that its tenant, the Department of Economic and Community Development, a state agency, required the additional active space in the basement, and that the State could probably be persuaded to release 51 of the 300 spaces it controlled in the county-owned parking garage directly across the street from AG's building.  AG claimed the evidence also showed that the average occupancy of the parking garage was 80 percent of capacity, and therefore the allocation of 51 spaces for its building would not adversely impact the public parking in the area.  In response, the city pointed to testimony that demonstrated a critical need for off-street parking in the immediate area of AG's building.  The city argued that the reasonableness of imposing the condition of 51 new spaces was at least fairly debatable.

   Shortly before the appeal was to be heard in the circuit court, AG and the city reached an agreement that was designed to avoid further court proceedings. The parties cannot now agree concerning the precise terms of that agreement. Both parties concur that they agreed to seek a continuance of the court hearing, and that they [***10] agreed AG would file a new application for a conditional use. They [*681] also agree that they discussed the feasibility of substituting the following conditions for the requirement of 51 new spaces:
1. AG would procure a release from the State of 25 spaces of the State's 300 space allocation in the county parking garage across the street from the building.
2. AG would pay $75,000 to the city, to be credited to the off-street parking capital improvement budget as a contribution toward eventual parking improvements in the area.
AG contends that the city flatly agreed to approve the application on those conditions, and that the requirement for the filing of a new application was intended to be a mere matter of form.  AG finds some succor for this argument in the language employed by the mayor in his memorandum to the aldermen proposing the settlement:
[**1281] I recommend immediate acceptance of this offer.  If accepted, developer will expeditiously apply for a formal amendment of its conditional use to reflect the settlement.  In addition, the trial would be postponed until the conditional use is approved at which time developer would dismiss the case, paying the costs.
[***11] The city, on the other hand, contends that it agreed only to a postponement of the circuit court hearing to allow AG to attempt to secure an amended conditional use upon the conditions discussed by the parties.  It says the mayor and aldermen, acting solely in their capacity as the municipal corporation, thereby signified that they felt the proposed conditions were fair and would likely be approved, but that the mayor and aldermen did not, and in fact could not, enter into a binding agreement that they, in their capacity as the zoning authority, would approve the conditional use on those terms.

   The amended conditional use was not granted on the terms contemplated by the parties in their agreement.  In fact, when AG presented its revised application to the Planning and Zoning Commission (a body separate from the [*682] mayor and aldermen), that commission refused to make any recommendation. Acting on the advice of its staff, the commission held that before the application could be approved the property would have to be rezoned, and the zoning ordinance would have to be amended to permit payment into the off-street parking fund as an alternative to providing spaces otherwise required. [***12] The commission said the proposed conditional use was illegal, and therefore it had no jurisdiction to accept it or to act on it.

    AG returned to court, and filed in the pending appeal a "Motion to Enforce Settlement Agreement."£ Judge James C. Cawood, Jr., after first finding that the parties had entered into a settlement agreement, deferred action on the motion to enforce that agreement.  He held that the Planning and Zoning Commission could not refuse to act on the application, and that AG should be given a reasonable time to secure a court order compelling the commission to proceed. He reasoned that if the mayor and aldermen should grant the amended conditional use on the terms discussed by the parties, the motion to enforce the agreement would become moot.

   The gears of the city's conditional use process were again engaged.  The commission made its recommendation to the city council (comprised of the mayor and aldermen), and that body held a public hearing.  The city council then denied the new application, thus leaving in place the earlier requirement of providing 51 new off-street parking spaces. Concerning the earlier agreement, the council acknowledged that the mayor and aldermen [***13] had reached a "preliminary understanding" with AG, but said that the entire agreement was subject to the zoning process, and that the council was therefore free to exercise its independent judgment on the application.  Additionally, the council found: that the proposed amendment did not conform to existing zoning regulations because 51 spaces were required, and those spaces were required to be on-site; that the city code did not permit monetary remuneration in lieu of required off-street parking; that the building was constructed on [*683] land which remained in the residential zoning classification and it would be inappropriate to enlarge an unlawful use; that the proposed amendment would be detrimental to the health, safety, and welfare of the public because the area was "woefully lacking" in public parking facilities and any reduction of the 51 new spaces originally required would exacerbate a parking situation that was already over capacity; and, that allocating 25 spaces in the county parking garage to the use of the tenants of AG's building would likely send 25 all-day parkers who then used the garage into the streets, thereby aggravating a difficult parking and traffic congestion [***14] problem that had only grown worse since the original requirement of 51 new spaces had been imposed two years before.

   AG filed an appeal from the latest denial, and the circuit court consolidated that appeal with the earlier appeal involving Resolution 1-81.  In the meantime, a third appeal, involving the action of the city board [**1282] of appeals in denying a temporary use and occupancy permit to AG, had reached the circuit court, and was consolidated with the other cases for hearing.

   Judge Cawood heard the consolidated appeals, including the motion to enforce the settlement agreement. No request was made to the court for leave to introduce testimony bearing on the terms of the agreement, nor was any testimony taken.  Judge Cawood held that the city was estopped from using the zoning of the property as a bar to the issuance of an occupancy permit.  He also held that unless the existence of the settlement agreement compelled a contrary result, the action of the city council in 1) requiring 51 new parking spaces as a condition to the active use of the basement area, and 2) denying the amendment which would have substituted 25 existing spaces and a $75,000 payment for the 51 space requirement, [***15] would be affirmed.  Turning to the agreement, Judge Cawood again assumed the existence of a binding settlement agreement, but found that AG had not performed its end of the bargain because it had not obtained from the State a release in perpetuity of [*684] the 25 spaces in the parking garage. The net result was that AG was found to be entitled to continue the use and occupancy of the building in accordance with the conditional use granted by Resolution 1-81, but was denied its request to conduct any active use in the basement area of the building.

   AG appealed to the Court of Special Appeals.  Although it appealed generally from the dispositions made in the three consolidated cases, AG limited the scope of its appeal by presenting to the intermediate appellate court only the question of whether the circuit court erred in refusing to enforce the settlement agreement. The Court of Special Appeals, in an unreported opinion, affirmed the judgment of the trial court.  We granted AG's petition for certiorari, and we now affirm.

   As we have indicated, there is a serious disagreement between the parties with respect to the terms of their settlement agreement. Clearly, there was an agreement [***16] of some kind, and the objective of the agreement was to settle the controversy.  The parties made no attempt to reduce their agreement to writing, and no one has testified concerning what was said.  Both sides have relied upon a memorandum sent by the mayor to the eight aldermen, setting forth his understanding of the proposed agreement and requesting their concurrence. We think the memorandum is ambiguous with respect to the terms that are in dispute.  Resolution of the ambiguity is not required, however, because the result is the same with either of the two possible constructions.

   If, as AG contends, the agreement was intended to require the city council to grant an amended conditional use on the conditions specified, the agreement was invalid. Without reaching the contentions of the city that 1) the mayor and aldermen acting in their capacity as the municipal corporation could not bind the mayor and aldermen acting in their capacity as the designated zoning authority, and 2) the action was in violation of the state "sunshine" [*685] law requiring open meetings, n7 we hold that the mayor and aldermen could not by agreement lawfully bind themselves to a future zoning or conditional [***17] use decision.  We do so on the familiar premise that a municipality may not contract away the exercise of its zoning powers.  Baylis v. City of Baltimore, 219 Md. 164, 170, 148 A.2d 429 (1959); 10 McQuillin, Municipal Corporations, § 29.07 (3d ed. 1981); 2 Anderson, American Law of Zoning 3d, § 9.21 (1986); 4 Yokley, Zoning Law and Practice, § 25-11 (4th ed. 1979).

n7 Article 76A, §§ 7-15, Md.Code (1980 Repl.Vol., 1982 Cum.Supp.), now codified at §§ 10-501 thru 10-510 of the State Government Article, Md.Code (1984 Repl.Vol., 1988 Cum.Supp.).

   AG recognizes the existence of this general principle, but argues that it applies only to cases involving contract or conditional zoning, and has no application in cases involving conditional uses.  It is true that the principle most frequently has been cited in cases involving the contractual imposition of conditions or restrictions where zoning reclassification has been sought and [**1283]conditional zoning was not permitted.  This Court [***18] has uniformly condemned the practice of conditional or contract zoning in the absence of statutory authority for the imposition of conditions.  See, e.g., Mont. Co. v. Nat'l Capital Realty, 267 Md. 364, 373-75, 297 A.2d 675 (1972) (reliance by zoning authority upon agreement to file covenants imposing limitations upon use invalid as conditional zoning); Rose v. Paape, 221 Md. 369, 375-78, 157 A.2d 618 (1960) (municipality cannot attach conditions to property zoned or rezoned if those conditions are not uniform throughout the zoning district); Baylis v. City of Baltimore, supra, 219 Md. at 170, 148 A.2d 429 (rezoning based on agreements with owners are invalid); Wakefield v. Kraft, 202 Md. 136, 149-50, 96 A.2d 27 (1953) (conditional rezoning not permitted).  And cf. City of Baltimore v. Crane, 277 Md. 198, 205-06, 352 A.2d 786 (1976) (ordinance granting additional density upon dedication of land not contract or conditional zoning where offered to all similarly situated property owners); Funger v. Mayor of Somerset, [*686] 249 Md. 311, 323-29, 239 A.2d 748 (1968) [***19] (agreement by town to make favorable recommendation to county zoning authority does not violate the general rule because the zoning authority was not a party to the agreement); Greenbelt v. Bresler, 248 Md. 210, 215-17, 236 A.2d 1 (1967) (same); Town of Somerset v. Montgomery County, 229 Md. 42, 50-52, 181 A.2d 671 (1962) (general rule inapplicable because zoning authority clearly did not impose conditions or rely upon representation of applicant concerning site development).

   These cases rest, in part, on the rationale that permitting conditional zoning by contract destroys the uniformity that is required in each zoning district.  As AG points out, this rationale does not apply when the zoning code specifically contemplates the imposition of conditions, as in the case of special exceptions and conditional uses.  We conclude, however, that because one of the several reasons for the general prohibition against contract or conditional zoning does not apply in conditional use cases, that does not, a fortiori, mean that an entirely separate reason -- the prohibition against contracting away the exercise of zoning power [***20] -- is similarly inapplicable.  If that were true, where conditional zoning is specifically permitted by statute n8 the zoning authority could obligate itself by advance contract to provide zoning and thereby render meaningless the prescribed zoning procedures.  We hold that the sound policy [*687] which prohibits a municipality from contracting away its zoning power is as applicable to special exception and conditional use cases as it is to those involving zoning reclassifications. These closely related functions, often grouped generically under the broad topic of zoning, involve the exercise of the power of land use regulation that was delegated to the city by Article 66B of the Maryland Code. Just as the zoning authority is required to follow procedures mandated by statute, West Mont. Ass'n v. MNCP & P Com'n, 309 Md. 183, 186, 522 A.2d 1328 (1987), and to exercise its unconstrained independent judgment in deciding matters of reclassification, so too must the appropriate authority, whether the zoning authority or a duly authorized board of appeals, follow required procedures and exercise independent judgment in deciding requests for special exceptions, [***21] conditional uses, or variances.  The carefully structured provisions for public notice, public hearings, and, in many cases, required consideration of staff or planning commission recommendations, would be [**1284] stripped of all meaning and purpose if the decision-making body had previously bound itself to reach a specific result.  This principle is not limited to agreements of questionable legality, or to those made in smoke-filled rooms; it applies as well to those made openly, in good faith, and containing terms and conditions that would otherwise be appropriate.

 n8 Conditional zoning, once roundly condemned, appears to be in the ascendency.  In Maryland, the concept has evolved indirectly through the use of various zoning devices such as planned developments, and has found at least limited favor with the state legislature.  See Article 66B, § 4.01(b) permitting a county or municipal corporation to impose certain conditions at the time of zoning or rezoning land, under certain circumstances.  See also People's Counsel v. Mockard, 73 Md.App. 340, 343-45, 533 A.2d 1344 (1987); and Bd. of Co. Comm'rs v. H. Manny Holtz, Inc., 65 Md.App. 574, 579-86, 501 A.2d 489 (1985) (holding that § 4.01(b) of Article 66B authorizes the imposition of conditions applicable to structural and architectural character of the land and improvements thereon, and does not authorize conditional use rezoning).  We need not, and do not, offer an opinion concerning the intermediate appellate court's interpretation of the scope of § 4.01(b).

[***22]

   The potential for harm that would be present in the absence of the rule is well illustrated by the facts of this case.  AG and the mayor and aldermen undoubtedly acted with the best of intentions in attempting to agree upon conditions that they believed would not only accommodate the needs of the public, but also could be reasonably met by the developer. However, when subjected to the illumination of planning commission recommendations, citizen input, current information, advice of the city attorney, and careful reflection, the conditions once thought appropriate were seen by the zoning authority to be woefully inadequate.

   We need not reach the question of whether the conditions agreed upon in this case were themselves legally impermissible.  [*688] The prohibition against contracting away the exercise of the zoning power applies whether the conditions were valid or invalid. Even if the mayor and aldermen agreed to be bound to the conditions discussed, they had no authority to do so, and the agreement cannot be enforced.

   AG further suggests that even if the agreement is invalid, we should apply the principle of equitable estoppel to prevent the city from relying upon that invalidity. [***23] The short answer to that contention is that a municipality is not estopped to assert its own illegal action.  Permanent Fin. Corp. v. Montgomery Cty., 308 Md. 239, 247-50, 518 A.2d 123 (1986); Salisbury Beauty Schools v. St. Bd. of Cosmetologists, 268 Md. 32, 63-65, 300 A.2d 367 (1973); Berwyn Heights v. Rogers, 228 Md. 271, 279-80, 179 A.2d 712 (1962).

   We turn to the alternative possibility -- that the agreement between the parties was simply to postpone the trial of the zoning appeal in order to permit AG to attempt to obtain an amended conditional use upon conditions that at first blush appeared to be reasonable to the mayor and aldermen. If indeed that was the agreement of the parties, we find no vice in it.  Settlements of controversies are favored.  General Motors Corp. v. Lahocki, 286 Md. 714, 726, 410 A.2d 1039 (1980); Chertkof v. Harry C. Weiskittel Co., 251 Md. 544, 550, 248 A.2d 373 (1968), cert. denied, 394 U.S. 974, 89 S.Ct. 1467, 22 L.Ed.2d 754 (1969). It is not uncommon [***24] for the parties in litigation, particularly after each has had an opportunity to carefully review the relevant facts and law, to discover that there may be a common meeting ground between them.  Under certain circumstances, a municipality may agree to compromise a contested matter. n9£ The city in this case clearly had the authority to enter into an agreement to request a postponement of the judicial hearing and to entertain a new or amended application for conditional use, provided it did not surrender or impair the right and obligation of the city council to independently [*689] and impartially consider the application in accordance with procedures established by law.

n9 See the cases collected under the annotation, "Power of city, town, or county or their officials to compromise claim," 15 A.L.R.2d 1359.

   If we accept the city's construction of the agreement, which is the construction favored by law because it results in a valid agreement, Garfinkel v. Schwartzman, 253 Md. 710, 720, 254 A.2d 667 (1969), [***25] the outcome of this case does not change.  The agreement was fully performed by both sides; nothing remained to be enforced.  AG was entitled to pursue a new application for conditional use, and it did so.  When the city council denied the application, AG was entitled to pursue its original appeal, and, if it wished, appeal the rejection of its latest application.  It did both, and the Circuit Court for Anne Arundel County affirmed the action of the city council in each case.  On appeal to the Court of Special Appeals, and before us, [**1285] AG did not argue that the actions of the city council were arbitrary, capricious, or without adequate support in the record.  Rather, it rested its right to relief upon the proposition that the city council had obligated itself to grant the amended conditional use upon the conditions set forth in the agreement, and upon the notion that it was entitled to judicial enforcement of that obligation. For the reasons previously stated, that contention cannot be sustained.

   JUDGMENT AFFIRMED, WITH COSTS. 

Patrick McCULLOUGH v. Michael WITTNER 
No. 32, September Term, 1987
 
Court of Appeals of Maryland
 
314 Md. 602; 552 A.2d 881; 1989 Md. LEXIS 10

 February  6, 1989

   PRIOR HISTORY: [***1]  
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 VACATED, AND CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  APPELLANT TO PAY COSTS.

CORE TERMS:  inmate, grievance, monetary, exhaust, administrative remedy, money damages, statutory authority, monetary award, personal injuries, personal injury, invoke, authority to award, correctional, correctional officer, administrative agency, exhausted, monetary damages, common law tort, remedial, invocation, entertain, workable, invoked, administrative remedies, assault and battery, prison inmate, tort action, compensatory, appropriated, equitable

COUNSEL: Sandra Z. Berenson and Lawrence B. Coshnear, both of Baltimore, Maryland, for appellant.

   Dennis M. Sweeney, Deputy Attorney General (J. Joseph Curran, Attorney General, Richard M. Kastendieck and C.J. Messerschmidt, Assistant Attorneys General, on the brief), all of Baltimore, Maryland, for appellee.

JUDGES: Murphy, C.J., Eldridge, Cole, Rodowsky, McAuliffe and Adkins, JJ., and James F. Couch, Jr., Associate Judge of the Court of Appeals of Maryland (retired) specially assigned.  Murphy, C.J., filed a concurring opinion in which Cole and McAuliffe, JJ., joined.

OPINIONBY: ELDRIDGE

OPINION: [*604] [**882] The Inmate Grievance Commission was created in 1971 as a separate agency within the Department of Public Safety and Correctional Services.  See Ch. 210 of Acts of 1971, now codified in Maryland Code (1957, 1986 Repl.Vol., 1988 Cum.Supp.), Art. 41, § 4-102.1.  Under the statutory provisions establishing the Commission, "any [***2] person confined to an institution within the Division of Correction, or otherwise in the custody of the Commissioner of Correction, or confined to the Patuxent Institution" is entitled to submit to the Commission "any grievance or complaint against any officials or employees of the Division of Correction or the Patuxent Institution."£ § 4-102.1(d).

   The statute goes on to require that the Inmate Grievance Commission provide a hearing for any grievance or complaint which is not wholly lacking in merit.  § 4-102.1(f).  The Commission must then issue an order "which shall include a statement of the findings of fact, the Commission's conclusions and its disposition of the complaint."£ Ibid.£ The Commission's final order, other than an order dismissing the complaint, is subject to review by the Secretary of Public Safety and Correctional Services.  Finally, the Act specifies: "No court shall entertain an inmate's grievance or complaint within the jurisdiction of the Inmate Grievance Commission unless and until the complainant has exhausted the remedies as provided in this section."£ § 4-102.1(l).  With regard to the Commission, see generally [*605] Collins v. Foster, 302 Md. 328, 487 A.2d 1189 (1985); [***3] Holsey v. Inmate Griev. Comm'n, 296 Md. 601, 464 A.2d 1017 (1983); State v. McCray, 267 Md. 111, 142-144, 297 A.2d 265 (1972); Hewitt v. Dept. of Pub. Safe. and Correct., 38 Md.App. 710, 382 A.2d 903 (1978); Bryant v. Dep't of Public Safety, 33 Md.App. 357, 365 A.2d 764 (1976); McCargo v. Mister, 462 F.Supp. 813 (D.Md.1978); Comment, Maryland Inmate Grievance Commission, 35 Md.L.Rev. 458 (1976).

   Turning to the case before us, Patrick McCullough, an inmate at the Maryland Correctional Institution in Jessup, brought a common law tort action against Michael Wittner in the Circuit Court for Anne Arundel County, seeking compensatory and punitive damages.  McCullough alleged that, while in his cell at the Institution, he was repeatedly struck by Wittner, a correctional officer at the Institution.  McCullough further alleged that the assault and battery caused his head to bleed, requiring medical treatment at the Institution and at the Maryland House of Correction.  McCullough claimed that Wittner acted maliciously, and that the malicious [***4] conduct resulted in McCullough's experiencing dizzy spells and further loss of hearing, n1 as well as [**883] suffering injuries to his middle ear, right wrist, left eye, and head.  Finally, McCullough stated that the assault and battery "was done without any provocation on the part of the plaintiff."£ The circuit court granted Wittner's motion to dismiss on the ground that, because McCullough had not filed a grievance with the Inmate Grievance Commission, he had failed to invoke and exhaust his administrative remedies. Thereafter, McCullough appealed to the Court of Special Appeals.  While the case was pending in that court, we issued a writ of certiorari.

n1 McCullough stated that he previously had been afflicted with some loss of hearing.

   The question before this Court is whether a Maryland prison inmate, seeking monetary damages for personal injuries resulting from a correctional officer's alleged tortious [*606] conduct, which occurs in one of the institutions covered by the Inmate Grievance Commission statute, must [***5] file a complaint with and exhaust his remedies before the Commission prior to bringing a common law tort action.  We hold that he must. n2

n2 In his complaint and throughout the case, including his brief and oral argument in this Court, McCullough has claimed no violation of his federal or state constitutional rights.  His action is entirely a non-constitutional tort suit for assault and battery. Consequently, our holding in this case is limited to the situation where an inmate, in the custody of the Commissioner of Corrections, or at the Patuxent Institution, is bringing a non-constitutional common law tort action for damages based upon alleged tortious conduct by officials or employees of the Division of Correction or the Patuxent Institution.  We intimate no opinion with respect to actions based on violations of federal or state constitutional rights.  In this connection, see 42 U.S.C. § 1997e; Md.-Nat'l Cap. P. & P. Comm'n v. Crawford, 307 Md. 1, 12-15, 511 A.2d 1079 (1986); Widgeon v. Eastern Shore Hosp. Center, 300 Md. 520, 479 A.2d 921 (1984).

[***6]

   McCullough maintains that his failure to submit a grievance to the Inmate Grievance Commission did not require that his suit be dismissed.  First, he argues that the Commission does not have jurisdiction over tort claims seeking damages for personal injuries. In the alternative, he contends that even if the Commission had jurisdiction, this case would fall within "exceptions" to the general rule that an administrative agency's jurisdiction must be invoked and exhausted before resorting to the courts.  These exceptions, according to McCullough, are (1) when the Legislature has indicated an intention that the agency's jurisdiction not be primary and that an independent judicial remedy may be pursued without resort to the administrative remedy, (2) where "'the administrative agency cannot provide to any substantial degree a remedy,'" and (3) when the object and issues of the "'judicial proceeding only tangentially or incidentally concern matters which the administrative agency was legislatively created to solve, and do not, in any meaningful way, call for or involve applications of its expertise.'"£ (Appellant's brief pp. 9-10, quoting from Prince George's Co. v. Blumberg, 288 Md. 275, 284-285, 418 A.2d [*607] 1155 (1980), [***7] cert. denied, 449 U.S. 1083, 101 S.Ct. 869, 66 L.Ed.2d 808 (1981)). n3

n3 While the first and the third of these so-called exceptions are listed separately, in both the appellant's brief and the Blumberg case (being the first and fifth exceptions listed in Blumberg), they are essentially the same thing, namely where, as a matter of legislative intent, the agency's jurisdiction is not primary.  See Md.-Nat'l Cap. P. & P. Comm'n v. Crawford, supra, 307 Md. at 22-30, 511 A.2d at 1090-1094; Bd. of Ed. for Dorchester Co. v. Hubbard, 305 Md. 774, 785-786, 506 A.2d 625 (1986); Wash. Sub. San. Comm'n v. Mitchell & Best, 303 Md. 544, 561-562, 495 A.2d 30, 39 (1985); Md.-Nat'l Cap. P. & P. v. Wash. Nat'l Arena, 282 Md. 588, 601, 386 A.2d 1216, 1225-1226 (1978).

   Although couched as two alternative arguments, with the second argument based on asserted [***8] exceptions to the general principle concerning the need for invocation and exhaustion of administrative remedies, McCullough's arguments all come down to a single contention.  The contention is that, under the Inmate Grievance Commission statute, the Commission lacks authority to award money damages. Because of this alleged lack of statutory authority to make a monetary award, McCullough maintains that the Commission had no jurisdiction over his claim.  His alternate argument that, even if the Commission had jurisdiction, he need not invoke and exhaust the administrative remedy, is also based on the Commission's alleged lack of statutory [**884] power to make a monetary award. Thus, because of this claimed lack of authority to award damages, McCullough asserts that the General Assembly did not intend that an inmate in his position be required to invoke and exhaust the administrative remedy. In light of this same asserted absence of statutory authority, he argues that the administrative remedy is inadequate and cannot to any substantial degree provide a remedy.  McCullough's premise, that the Inmate Grievance Commission does not have authority to make a monetary award, is largely based on [***9] an early opinion of the Attorney General (60 Op.Atty.Gen. 360 (1975)). See also McCray v. Burrell, 367 F.Supp. 1191 (D.Md.1973), rev'd on other grounds, 516 F.2d 357 (4th Cir.1975), cert. dismissed, 426 U.S. 471, 96 S.Ct. 2640, 48 L.Ed.2d 788 (1976).

   [*608] There are two answers to McCullough's position, either one of which is dispositive.  First, even if the Commission did lack statutory authority to make a monetary award, McCullough would be required to invoke and exhaust his administrative remedy prior to pursuing his tort action. Second, the Commission does have authority to make a monetary award as long as funds are appropriated or otherwise lawfully available for this purpose.

   (1)

   It is a settled principle of administrative law that an agency's lack of power to grant the particular type of relief sought does not necessarily mean that the agency lacks jurisdiction over a matter or that the administrative remedy need not be invoked and exhausted. As Professor Davis has pointed out, "[t]hat the agency has no power to grant the relief sought is not a reason for refusing to [***10] require prior resort to the agency, if the case involves a question within the agency's special competence."£ 3 Davis, Administrative Law Treatise, § 19.07 (1958).  See also Gingell v. County Commissioners, 249 Md. 374, 376, 239 A.2d 903 (1968). With regard to a monetary award, the Supreme Court, for example, in Thompson v. Texas Mexican Railway, 328 U.S. 134, 151, 66 S.Ct. 937, 947, 90 L.Ed. 1132 (1946), held that a railroad, seeking contractual damages, was required to bring a proceeding before the Interstate Commerce Commission even though the ICC did not have the authority to award money damages.

   If it be assumed arguendo that the Inmate Grievance Commission does not have the statutory authority to make a monetary award, and can only issue directives and orders of an equitable nature as contended for by McCullough, nevertheless, under the circumstances here, McCullough was required to invoke and exhaust the administrative remedy before the Commission before he was entitled to an adjudication of his tort suit.
 
   It is undisputed that an inmate's complaint, based on an attack by a correctional officer [***11] in the inmate's cell, falls [*609] within the Inmate Grievance Commission's jurisdiction as long as the inmate seeks a remedy other than money damages. In substance, McCullough's argument is not that the nature of his complaint is outside of the Commission's jurisdiction; it is that the remedy sought is beyond the Commission's power.  Furthermore, this Court has recognized that an inmate's complaint against correctional officers, based on an assault in an institution, falls within the Inmate Grievance Commission statute.  Holsey v. Inmate Griev. Comm'n, supra, 296 Md. at 603, 464 A.2d at 1019.

   In light of the nature of McCullough's complaint, the necessity for invocation and exhaustion of administrative remedies could not have been more forcefully expressed in the statute.  The General Assembly mandated that "[n]o court shall entertain an inmate's grievance or complaint within the jurisdiction of the Inmate Grievance Commission unless and until" the inmate has invoked and exhausted his remedies before the Commission.  Art. 41, § 4-102.1(l).  This sweeping language, delineating the need to invoke and exhaust the administrative remedy, is totally [***12] inconsistent with the notion that the Commission's jurisdiction over inmate grievances can be circumvented by the simple expedient of making a claim for money damages.

   [**885] Moreover, in Collins v. Foster, supra, 302 Md. 328, 487 A.2d 1189, we decided that an inmate in a Maryland correctional institution, seeking money damages from a correctional official based on incidents in the institution, was required to exhaust his remedy before the Inmate Grievance Commission.  In that case, an inmate at the Maryland Penitentiary filed an action in the District Court of Maryland against the Warden of the Penitentiary, seeking damages for the Warden's failure to provide the plaintiff with adequate dental care. n4£ The plaintiff had filed a claim with [*610] the Inmate Grievance Commission but had failed to exhaust his remedy before the Commission. The District Court refused to consider the merits of the plaintiff's action because of his failure to exhaust his administrative remedies. The circuit court reversed on a procedural ground.  This Court, disagreeing with the circuit court on the procedural ground, reversed the circuit court's decision.  In addition, we [***13] specifically upheld the District Court's refusal to decide the merits of the action because of the plaintiff's failure to exhaust his remedy before the Inmate Grievance Commission, 302 Md. at 333, 487 A.2d at 1191.

n4 While this Court's opinion in Collins v. Foster does not set out in detail the nature of the relief sought by the inmate, the record extract before the Court in that case discloses that the inmate sought $5,000 damages.  The District Court of Maryland, of course, generally has no equitable jurisdiction and, with a few exceptions, can grant no form of relief other than money damages. See Code (1974, 1984 Repl.Vol.), § 4-402(a) of the Courts and Judicial Proceedings Article.

    A complaint alleging an assault of a prison inmate, in his cell, by a correctional officer, is obviously a matter falling within the expertise of the Inmate Grievance Commission.  It is one of the types of inmate grievances or complaints for which the Commission was created.  Consequently, regardless [***14]of whether the Inmate Grievance Commission has the statutory authority to award money damages, the plaintiff McCullough was required to invoke and exhaust his remedy before the Commission.

   (2)

   Alternatively, we disagree with McCullough's basic premise that the statutory provisions establishing the Inmate Grievance Commission preclude the Commission and the Secretary of Public Safety and Correctional Services from making monetary awards.  In our view, the Commission and Secretary have statutory authority to award monetary damages as long as funds are appropriated or otherwise properly available for this purpose.

   The language of the Inmate Grievance Commission statute itself contradicts McCullough's contention that the Commission and Secretary have only limited remedial authority.  Art. 41, § 4-102.1(d), authorizes the Commission to entertain [*611] "any grievance or complaint against any officials or employees of the Division of Correction or the Patuxent Institution."£ (Emphasis added).  The words "any grievance or complaint" would seem to encompass one requesting a monetary award. Many types of grievances, depending on the circumstances, cannot be rectified by a directive [***15] or order of an equitable nature; the only practical relief may be a monetary award.

   Moreover, there is no language in the statute which, even arguably, limits the remedial authority of the Commission and the Secretary of Public Safety and Correctional Services.  Where the Commission finds that a complaint is meritorious, the Secretary is empowered to put the Commission's order into effect or to "take whatever action he deems appropriate in light of the Commission's findings."£ The General Assembly obviously intended that the Secretary have broad discretionary remedial authority.

   This Court's opinions relating to the Inmate Grievance Commission indicate that the administrative remedy before the Commission is both comprehensive and "flexible."£ Holsey v. Inmate Griev. Comm'n, supra; State v. McCray, supra, 267 Md. at 141-144, 297 A.2d at 281-282. As previously pointed out, we have held that an inmate must exhaust his Commission remedy in a case where the only relief sought was money damages. Collins v. Foster, [**886] supra. Nothing in these cases remotely suggests that the remedial authority of the [***16] Commission and Secretary is limited to orders of an equitable nature.

   In addition, the Commission and the Secretary of Public Safety and Correctional Services, soon after the enactment of the Inmate Grievance Commission statute, took the position that orders for the payment of money to inmates were authorized, and several monetary awards were made.  See COMAR Title 12, § .07.01.04G(1); Comment, Maryland Inmate Grievance Commission, supra, 35 Md.L.Rev. at 481 (citing some of the administrative cases in which monetary [*612]awards were made). n5£ The interpretation of a statute by those officials charged with administering the statute is, of course, entitled to weight.  See, e.g., Sinai Hosp. v. Dep't of Employment, 309 Md. 28, 46, 522 A.2d 382 (1987); Balto. Gas & Elec. v. Public Serv. Comm'n, 305 Md. 145, 161, 501 A.2d 1307 (1986); Consumer Protection v. Consumer Pub., 304 Md. 731, 759, 501 A.2d 48 (1985).

n5 The awards were for property damage and not personal injury. Nevertheless, nothing in the statute would support a distinction between the authority to award money damages for injury or loss to property and the authority to award money damages for injury to the person.

[***17]

   As mentioned earlier, in arguing that monetary awards are precluded under the Inmate Grievance Commission statute, McCullough chiefly relies on a 1975 opinion of the Attorney General, 60 Op.Atty.Gen. 360. The position of the Attorney General, however, has changed since that opinion.  In oral argument before us in the present case, the Attorney General's Office took the view that the Commission and Secretary do have the statutory authority to make monetary awards as long as funds are available for this purpose.  Moreover, the 1975 Attorney General's opinion was based upon cases dealing with the question of whether the State had waived sovereign immunity for various types of suits in court against the State.  These cases have little relevance to the construction of a legislative enactment specifically authorizing the filing of certain types of complaints and creating an administrative machinery for adjudicating those complaints.

   Therefore, in our view, the Inmate Grievance Commission and the Secretary are authorized to make monetary awards so long as funds are appropriated or are otherwise properly available for this purpose, and the Secretary in his discretion [***18] determines that such an award is appropriate.

   (3)

   Although the circuit court in this case correctly held that McCullough was required to invoke and exhaust his [*613] remedy before the Inmate Grievance Commission before receiving an adjudication on the merits of his tort action, we do not believe that a dismissal of the tort action was the preferable order. Under circumstances like these, where a plaintiff has both an administrative remedy and an independent judicial action, and the administrative agency's jurisdiction is deemed primary, it is appropriate for the trial court to retain, for a reasonable period of time, jurisdiction over the independent judicial action pending invocation and exhaustion of the administrative procedures.  See Md.-Nat'l Cap. P. & P. Comm'n v. Crawford, 307 Md. 1, 18, 511 A.2d 1079, 1087 (1986); Bd. of Ed. for Dorchester Co. v. Hubbard, 305 Md. 774, 792-793, 506 A.2d 625, 634 (1986).

   JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY VACATED, AND CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. APPELLANT TO PAY COSTS.

CONCURBY: MURPHY

 CONCUR: MURPHY, Chief Judge.

   I agree [***19] with the Court that a Maryland prison inmate, who claims that a correctional officer assaulted and thereby injured him, must first file a grievance or complaint with the Commission, and exhaust his administrative remedies before that body, before he may seek monetary damages for personal injuries in a common law tort [**887] action in court.  I also agree with the Court that this requirement is one imposed by the inmate grievance statute (Art. 41, § 4-102.1) and must be followed even if the Commission does not have statutory authority to make a monetary damage award to the inmate for his personal injuries. Most emphatically, however, I disagree with the Court's alternate and wholly unnecessary conclusion that the Commission, in disposing of an inmate's grievance or complaint, has statutory authority to award personal injury damages to the inmate if funds are [*614] available for this purpose. I think the Court badly misconstrues the legislative intent when it concludes that the words "any grievance or complaint" in the statute vest authority in the Commission to make such a monetary personal injury damage award.  Because I would limit the holding in this case to the first ground set [***20] forth in Part (1) of the Court's opinion, I concur only in the judgment.

   Contrary to the view taken by the Court, both the inmate and Wittner, who is represented by the Attorney General, recognize that the statute does not empower the Commission to make monetary damage awards for personal injuries sustained by an inmate as a result of a correctional officer's tortious or intentional misconduct.  In his brief, the Attorney General recognizes that all inmates have a right to be free from physical abuse at the hands of correctional officers. If and when it occurs, he says that it will not "be allowed to continue unabated and unpunished" because the Commission "may order any action that is appropriate to prevent a recurrence of such an incident, including disciplining or discharging the officer responsible and ordering any changes in the institution's internal procedures and administrative practices that may be needed."£ The Attorney General concludes that such actions provide a direct and meaningful remedy for an inmate who might otherwise be vulnerable to repeated abuse.

   The position taken by the Attorney General comports with the history underlying enactment of the statute in 1971. [***21] As we said in State v. McCray, 267 Md. 111, 297 A.2d 265 (1972), the impetus for the statute creating the Commission grew out of a 1970 speech to the National Association of Attorneys General by Chief Justice Burger who advocated "a simple and workable procedure by which every person in confinement who has, or who thinks he has, a grievance or complaint can be heard promptly, fairly and fully," 267 Md. at 142, 297 A.2d 265. We said in McCray, at 144, 297 A.2d 265, that the statute and implementing rules adopted by the Commission provided that simple and workable procedure.

   [*615] That the statute does not empower the Commission, or the Secretary, to assess or award damages to an inmate for personal injuries was the flat holding in McCray v. Burrell, 367 F.Supp. 1191, 1208 (D.Md.1973) rev'd on other grounds, 516 F.2d 357 (4th Cir., 1975).  Consistent with this case is Washington v. Boslow, 375 F.Supp. 1298, 1300 (D.Md.1974) where the court recognized that the relief available from the Commission, "although not exactly comparable [***22] to an award of damages, is critical to the welfare of the inmate, to the proper administration of the correctional institution, and to the expeditious resolution of the inmate's grievance."£ The substance of these holdings is reflected and has been adopted in several opinions of the Maryland Attorney General.  See 59 Op.Att'y Gen. 438 (1974); 60 Op.Att'y Gen. 360 (1975). These opinions are not limited, as the Court suggests, to considerations of sovereign immunity against civil suits for monetary damages, but were predicated on the broader premise that the statute did not authorize the Commission to pay money to a grieving inmate for tort-type personal injury damages.  See also McCargo v. Mister, 462 F.Supp. 813 (D.Md.1978); Comment, 35 Md.L.Rev. 458 (1978) (stating at 481 that "the Commission has never awarded damages for personal injury, pain and suffering, emotional distress, or other damage theories not included in the notion of 'property cases'"); and letter of the Executive Director of the Commission, dated April 2, 1987, to the Legal Aid Bureau, which is part of the record before us, stating that while there [***23] had been grievances [**888] involving claims of excessive force by correctional employees, none included monetary compensation as part of the relief as the Commission "does not have the authority to award compensatory or punitive damages" in such cases.

   As the Court points out, § 4-102.1(k) of the statute authorizes the Commission, subject to the Secretary's approval, "to adopt rules and regulations for the conduct of its proceedings" (emphasis added).  Manifestly, this authority is purely procedural; it does not permit the Commission to add to or broaden its statutory powers by enacting substantive [*616] rules. Nevertheless, presumably acting under this rule-making provision, the Commission may, in disposing of a grievance, pay the fair market value of, or replace, property of an inmate which has been lost, stolen, damaged, destroyed or improperly confiscated through the negligence or other wrongful act or omission of a correctional officer. See COMAR, Title 12, § 12.07.01.04.  There is no similar purported authorization for money awards for personal injuries suffered by inmates. In any event, the difference between the two types of monetary awards is a most substantial one. [***24] In the property context, the amount of the loss is limited to fair market value -- an easily ascertainable standard, one which is both "simple and workable."£ The contrary is true in the personal injury context.  There is nothing simple about a grievance proceeding which permits an administrative agency to hear evidence of the nature and extent of an inmate's personal injury and to consider the full range of tort-type damages to compensate for the injury.  I cannot conceive that the Legislature intended that the Commission act as a separate forum for the collection of personal injury damages, presumably after hearing from expert medical witnesses on both sides as to the nature and extent of the injury.  To vest such extraordinary and indeed unbridled authority in the Commission is quite at odds with the statutory purpose.  The Commission, as an administrative agency created by statute, has no inherent powers; its authority cannot reach beyond the warrant provided for it by the statute.  See Holy Cross Hosp. v. Health Services , 283 Md. 677, 393 A.2d 181 (1978). See also Gutwein v. Easton Publishing Co., 272 Md. 563, 575-77, 325 A.2d 740 (1974) [***25] (holding that the statute creating the Maryland Human Relations Commission did not grant the Commission power to make monetary awards for compensatory or other damages, particularly in the absence of any statutory guidelines or limitations).

   It is no answer to say, as the Court does, that the Commission's power to award personal injury damages is subject to the availability of appropriations for this purpose.  [*617] Of course, the General Assembly may not, in enacting the Budget Bill, amend the inmate grievance statute by "legislating" an addition to the Commission's statutory power through the provision of a budgetary appropriation.  No principle is better settled than that the Legislature may not enact legislation in the Budget Bill, which is not subject to gubernatorial veto.  And, finally, I think the Court has failed to give due consideration to the well-recognized rule that the consistent view taken of a statute by administrative officers charged with its enforcement should be afforded persuasive influence in determining the proper judicial construction when, as here, the clear import of the statute supports the administrative construction that the Commission is not empowered [***26] to grant monetary awards for personal injuries. See Holy Cross, supra, 283 Md. at 685, 393 A.2d 181.

   I, therefore, limit my concurrence in the Court's judgment to Parts (1) and (3) of the opinion. 

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Victor H.SPARROW, III 
Misc. Docket (Subtitle BV) No. 30, September Term, 1987
 
Court of Appeals of Maryland
 
314 Md. 421; 550 A.2d 1150; 1988 Md. LEXIS 166

 December  20, 1988

   SUBSEQUENT HISTORY: [***1] As Amended February 14, 1989.

PRIOR HISTORY:  
Circuit Court for  Anne Arundel  County, Morris Turk, Judge.

DISPOSITION: IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COURT COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING THE COSTS OF TRANSCRIPTS, PURSUANT TO MARYLAND RULE BV 15c FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST VICTOR H. SPARROW, III.

CORE TERMS:  disbarment, misconduct, extenuating circumstances, suspension, suspended, convicted, disciplinary, mitigating, reinstatement, reinstated, marriage, remorse, spouse, per curiam, probation, episode, government property, practice of law, travel agency, hearing panel, real estate, immigration, recommendation, sham, subornation of perjury, good character, personal gain, direct result, mail fraud, law firm

COUNSEL: ARGUED BY Melvin Hirshman, Bar Counsel and Kendall R. Calhoun, Assistant Bar Counsel, for the Attorney Grievance Commission of Maryland, for petitioner.

   ARGUED BY Sheila D. Brooks, Baltimore, Maryland, for respondent.

JUDGES: Murphy, C.J., and Eldridge, Cole, Rodowsky, McAuliffe, Adkins and Blackwell, JJ.  McAuliffe, Judge, dissenting.  Murphy, C.J., and Rodowsky, J., join in this opinion.

OPINIONBY: ADKINS

OPINION: [*422] [**1150] Before us in this case is the question of what sanction should be imposed on a member of the Maryland Bar who, [*423] in 1982, was convicted of serious crimes by a federal court in California, in 1985 suspended from the practice of law in California, and in 1987 reinstated in California.

   In May 1984, a hearing panel of the Hearing Department of the State Bar Court of the State Bar of California n1 found [**1151] that respondent, Victor H. [***2] Sparrow, III, a member of the California Bar, had
 
during the period from 1980 through 1982, . . . conspired with others to direct and manage a sham marriage ring in order that aliens could illegally obtain permanent status in the United States.  The sham marriages were arranged by the conspirators and [Sparrow] thereafter knowingly filed documents which he knew to be false, with the Immigration and Naturalization Service (INS) regarding said marriages.
 
In addition, the panel found that Sparrow had suborned perjury (by advising the aliens to give false answers at INS proceedings) and had stolen government property (an INS manual).  Sparrow was convicted of these offenses on 24 November 1982 by a jury in the United States District Court for the Southern District of California. n2£ The State Bar Court panel recommended disbarment.

n1 A hearing panel of the California State Bar Court approximates an inquiry panel established pursuant to Md. Rule BV5 c.

n2 Specifically, Sparrow was convicted under Counts 1, 3, 5, 12, and 20 of the indictment filed against him.  Count 1 charged conspiracy to make false statements, suborn perjury, and steal government property in violation of 18 U.S.C. §§ 371, 1001, 1621(1), 1622, and 641.  Each of Counts 3 and 5 charged a specific instance (in 1981) of the making of a false statement in violation of 18 U.S.C. § 1001. Count 12 charged an instance of subornation of perjury in violation of 18 U.S.C. §§ 1621(1) and 1622.  Count 20 charged theft of government property (the INS manual) in violation of 18 U.S.C. § 641. On 10 January 1983 Sparrow was sentenced to four two-year concurrent sentences on the convictions under Counts 1, 3, 5, and 12 (later reduced to 18 months).  Under the Count 20 conviction, he received five years of probation, consecutive to the other sentences.

[***3]

   On 31 August 1984, the Review Department of the State [*424] Bar Court n3 adopted the panel's factual findings as to Sparrow's misconduct and recommended that he be suspended from the practice of law in California for five years, that the execution of the order for suspension be stayed, and that Sparrow be placed on probation for five years, subject to a number of conditions.  One of the conditions was that Sparrow be suspended from the practice of law during the first two years of his probation. At the conclusion of the probationary period, and upon performance of the terms of probation, Sparrow's suspension was to be automatically terminated.

n3 The Review Department approximates the Md. Rule BV5 d Review Board.

   This became the recommendation of the State Bar Court of California.  This was the sanction imposed by the Supreme Court of California on 21 March 1985, effective 19 April 1985. n4£ Sparrow was reinstated in California on 19 April 1987.

n4 At the time of the California proceedings against Sparrow, after an attorney's conviction of a crime of moral turpitude has become final, the Supreme Court of California could either disbar or suspend the attorney "according to the gravity of the crime and the circumstances of the case. . . ."£ Cal.Bus. & Prof.Code § 6102(b) (West 1974 & Supp. 1988) [as § 6102(b) stood before 1985 amendments and after 1981].

[***4]

   When discipline was imposed in California, Sparrow was a member of the Maryland Bar as well as that of California. n5£ For reasons not apparent from the record, however, official word of the California disciplinary action did not reach Maryland in timely fashion; indeed, it never reached Maryland through official channels.  Sparrow at some point applied for membership in the Maryland State Bar Association, and in the course of applying, candidly revealed his California difficulties.  The Maryland State Bar Association apparently informed the Attorney Grievance Commission.  That agency's Review Board, on or about 9 December 1987 (almost eight months after Sparrow had been reinstated in [*425]California), authorized the initiation of the proceedings now before us.

n5 He had also been admitted to practice in New York, Pennsylvania, Rhode Island, and the Trust Territory of the Pacific Islands.

   Before Judge Morris Turk, of the Circuit Court for Anne Arundel County, to whom we referred the case pursuant to Rule BV9 b, [***5] the parties stipulated to the proceedings before the United States District Court for the Southern District of California and to the California disciplinary proceedings. Judge Turk found that Sparrow had violated Disciplinary Rule 1-102(A)(1), (3), (4), (5), [**1152] (6). n6£ There are no exceptions to any of Judge Turk's findings or conclusions.  Under Rule BV10e1 "a final judgment by a judicial tribunal in another proceeding convicting an attorney of a crime shall be conclusive proof of the guilt of the attorney of that crime" and "[a] final adjudication in a disciplinary proceeding by a judicial tribunal . . . that an attorney has been guilty of misconduct is conclusive proof of the misconduct in the hearing of charges pursuant to this Rule."

n6 Disciplinary Rule 1-102.  Misconduct.

   (A) A lawyer shall not:

   (1) Violate a disciplinary rule.

   * * *

   (3) Engage in illegal conduct involving moral turpitude.

   (4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

   (5) Engage in conduct that is prejudicial to the administration of justice.

   (6) Engage in any other conduct that adversely reflects on his fitness to practice law.

[***6]

   Sparrow, then, does not contest the fact that, at the beginning of this decade, he was guilty of serious criminal misconduct. He contends, nevertheless, that we should impose a sanction no greater than that administered by California.  Bar Counsel, on the other hand, recommends the ultimate sanction of disbarment.

   The California disciplinary proceedings conclusively establish the fact of Sparrow's misconduct. This does not mean, however, that we must apply the same sanction that California applied.  True, we have often imposed a sanction of facially equal severity as that imposed by a sister state.  [*426] See, e.g., Attorney Griev. Comm'n v. Bettis, 305 Md. 452, 505 A.2d 492 (1986) (attorneys disbarred in District of Columbia and later in Maryland); Attorney Griev. Comm'n v. Moore, 301 Md. 169, 482 A.2d 497 (1984) (per curiam) (same); Attorney Griev. Comm'n v. Hines, 304 Md. 625, 500 A.2d 646 (1985) (per curiam) (attorneys suspended in District of Columbia later suspended for like period in Maryland); Attorney Griev. Comm'n v. Rosen, 301 Md. 37, 481 A.2d 799 (1984) [***7](per curiam) (same); Attorney Griev. Comm'n v. James, 300 Md. 297, 477 A.2d 1185 (1984) (same).  But the rule is that in cases 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 facts and circumstances of each case, but with a view toward consistent dispositions for similar misconduct.
 
Attorney Griev. Comm'n v. Parsons, 310 Md. 132, 142, 527 A.2d 325, 330 (1987). Thus, in Parsons, we looked to our own cases and imposed a 90-day suspension, instead of the six-month suspension that the District of Columbia had found appropriate.  Id. at 143-143, 527 A.2d at 330.
 
   When we look to our own cases, however, we find that they seem to demand a sanction more severe than the suspension imposed in California.  The crimes of which Sparrow was convicted -- the misdeeds conclusively established by the California proceedings -- involved lying, subornation of perjury, stealing, and conspiracy to commit those acts as part of a sham marriage scheme designed to deceive INS.  Moreover, [***8] the State Bar Court of the State Bar of California found that the conspiracy of which Sparrow was convicted was undertaken for personal gain. In such a case, disbarment is the general rule in Maryland, unless the lawyer can demonstrate by clear and convincing evidence that compelling extenuating circumstances call for a different result.  Attorney Griev. Comm'n v. Ezrin, 312 Md. 603, 541 A.2d 966 (1988) (stealing money from law firm); Attorney Griev. Comm'n v. Goldberg, 307 Md. 546, 515 A.2d 765 (1986) (misappropriation of clients' funds); Attorney [*427] Griev. Comm'n v. Newman, 304 Md. 370, 499 A.2d 479 (1985) (mail fraud); Attorney Griev. Comm'n v. Noren, 293 Md. 611, 446 A.2d 423 (1982) (bribery); Attorney Griev. Comm'n v. Klauber, 289 Md. 446, 423 A.2d 578 (1981) (mail fraud); Bar Ass'n of Balto. City v. Siegel, 275 Md. 521, 340 A.2d 710 (1975) (false and fraudulent tax returns); Maryland St. Bar Ass'n v. Agnew, 271 Md. 543, 318 A.2d 811 (1974) (same); [***9]In the Matter of Lombard, 242 Md. 202, 218 A.2d 208 (1966) (converting assets of estate).

   [**1153] Sparrow insists that in his case there are compelling extenuating circumstances that should persuade us not to apply the stringent Maryland doctrine.  The evidence he cites as mitigating is essentially uncontradicted and is, for the most part, contained in the extensive transcripts of the California disciplinary proceedings.  It shows that Sparrow, the son of a postal clerk and a domestic servant, worked his way through college and Harvard Law School, graduating from the latter in 1969.  He then served as a White House Fellow and was later employed as a lawyer with several major corporations and with the Securities and Exchange Commission.  In all of these capacities, his performance was excellent and his conduct and character exemplary.

   While working for one of these corporate employers, Sparrow was stationed in the Philippine Islands, where he met and married a native of that area. Eventually he and his family settled in San Diego, California, where Sparrow continued to work as a corporate lawyer.  Eventually, his employer began to curtail its operations, and [***10] in order to retain Sparrow's services, offered him a transfer to Chicago.  Sparrow declined, apparently because his wife insisted on remaining in the San Diego area, and left that job.  His wife was running a travel agency in San Diego.  Sparrow set up a solo law practice at the travel agency while seeking another corporate position.

   The solo practice was eminently unsuccessful.  Sparrow had had no experience at running a law office; he had no [*428] clients; he had substantial financial burdens; and he was in a period of great personal turmoil produced in part by his domineering spouse, who had insisted on remaining in San Diego instead of going to Chicago.  It also appears that his spouse and some of her compatriots in the travel agency were operating the immigration scam in which Sparrow became embroiled and which brought about his 1982 conviction, along with that of his spouse.

   When the Review Department of the State Bar Court recommended suspension rather than disbarment, it found as facts that Sparrow had "no prior record of discipline, he was inexperienced in private practice and his wife presented him with the opportunity to become enmeshed in the activities which led to [***11]his conviction." n7

n7 The California hearing panel made a number of factual findings in Sparrow's case.  These included that Sparrow had not demonstrated remorse, that the evidence did not show mitigating factors, and that the evidence did not show that Sparrow had been rehabilitated.  The panel recommended disbarment with the right to file a petition for reinstatement after three years.  The Review Department struck out the three fact-findings listed above and substituted this: 

   [Sparrow] presented overwhelming evidence of mitigation and remorse through the testimony of witnesses and letters of recommendation. [Sparrow] has no prior record of discipline, he was inexperienced in private practice and his wife presented him with an opportunity to become enmeshed in the activities which led to his conviction.

   The Supreme Court of California did not modify the findings or recommendations of the Review Department.

   All of this shows, argues Sparrow, that his participation in the immigration scheme was but a bizarre [***12] episode in an otherwise exemplary life; an episode induced by heavy domestic and financial pressures, and one that is most unlikely to recur.  But even if we accept all of this to be true (and this is a conclusion a reasonable fact-finder might draw from the record), it is not enough to show the existence of compelling extenuating circumstances within the meaning of the Maryland decisions.  Three examples suffice to make the point.

   [*429] Ezrin, supra, involved a lawyer who stole money from his law firm. There was evidence that his actions might be "attributable to a . . . mixed personality disorder."£ 312 Md. at 604, 541 A.2d at 966. He was frustrated, angry, resentful, vengeful.  Id. at 604-606, 541 A.2d at 966-967. In the words of a testifying psychiatrist, "'he was caught in the vortex of his depression, and the emotional problems that he had at the time.'"£ Id. at 607, 541 A.2d at 968. On the other hand, there was evidence (accepted by the hearing judge) that Ezrin, despite his need for psychiatric treatment, was under no compulsion to steal and was [***13] able to discontinue his thievery at any time.  Id. at 604-605, 541 A.2d at 966-967. We
 
[**1154] carefully reviewed . . . his general good character, his excellent reputation as a lawyer, lack of prior misconduct, his restitution of the stolen funds, and his cooperation with the authorities.  None of these [we concluded] constitutes compelling extenuating circumstances . . . that would warrant a sanction other than disbarment.
312 Md. at 609, 541 A.2d at 969 [citation omitted].

   In Siegel, supra, we rejected as insufficiently compelling, extenuating circumstances, (Siegel's ill-health) which he said had induced him to enter a nolo contendere plea to a charge of tax evasion, in order to avoid the physical strain of a trial, despite the weakness of the government's case.  275 Md. at 528, 340 A.2d at 714. Although Siegel had an unblemished record of 40 years at the Bar and was esteemed in his community as a lawyer and as a family man, we disbarred him.  Id.

   By way of contrast, we may look at Attorney Griev. Comm'n v. Gilland, 293 Md. 316, 443 A.2d 603 (1982). [***14] Gilland was convicted of failing to file federal tax returns for several years.  293 Md. at 317, 443 A.2d at 604. We considered as mitigating factors problems Gilland had with his accountants, his disorganized record keeping, and the fact that he was "beleaguered by a series of personal and [*430] family difficulties" during the period in question so that he was "psychologically and emotionally off balance during much of this time."£ Id. at 321, 443 A.2d at 606. We did not disbar Gilland; we suspended him for two years.  Id. at 322, 443 A.2d at 607. The distinguishing feature is that the hearing judge found (and we accepted the finding) that Gilland, unlike Ezrin and Siegel, had not committed a crime of moral turpitude because he did not intend to defraud the government.  Id. at 321, 443 A.2d at 606.

   Thus, we see that when a crime or an act of moral turpitude involving fraud or dishonesty is implicated, disbarment is the sanction absent compelling extenuating circumstances; but where there is no moral turpitude, mitigating factors of lesser magnitude may [***15] be considered in determining the appropriate sanction.  Sparrow was convicted of crimes of moral turpitude, crimes at least one of which he was found to have committed for personal gain. The mitigating factors he urges upon us do not amount to compelling extenuating circumstances under Maryland law. n8

n8 Sparrow argues that two cases, Attorney Griev. Comm'n v. Flynn, 283 Md. 41, 387 A.2d 775 (1978), and Attorney Griev. Comm'n v. Cooper, 279 Md. 605, 369 A.2d 1059 (1977), are applicable.  Those cases, however, are clearly distinguishable.  Each involved an attorney who suffered from alcoholism, and whose acts were a direct result of his condition.  Here, the crimes committed by Sparrow were not found to be the direct result of such a physically and mentally disabling condition.

   Nevertheless, under the unusual facts of this case, we do not think that disbarment is the proper sanction.  What we have before us is much more like a reinstatement proceeding [***16] than an ordinary disciplinary proceeding. Sparrow's criminal misconduct occurred well over six years ago.  He was sentenced more than five years ago and released from imprisonment more than four years ago.  Proceedings before the California disciplinary agency were held in 1984.  In 1985, he was suspended in that state for what was, in effect, two years.  He was reinstated in California in 1987.

   [*431] Evidence produced at the California disciplinary hearing strongly endorsed Sparrow's general competence as a lawyer and integrity as an individual.  There were both testimony and letters, and these related to his character and conduct both before and after the criminal episode. As we have seen, this evidence convinced the California Review Department of both mitigating factors and Sparrow's remorse. See note 7, supra, and accompanying text.  At the Maryland hearing, Judge Turk found that Sparrow "admitted he did wrong" and expressed remorse. Nothing was presented there to suggest any misconduct of any sort on Sparrow's part since the federal convictions, or any activity since then that would reflect adversely on his character.  It seems that he is working in the District [***17] of Columbia in the real estate field.  He is licensed there and in March, 1988, also [**1155] received a Maryland real estate broker's license from the Real Estate Commission "after voluntary disclosure by [Sparrow of his California criminal and disciplinary history] and a hearing on the merits. . . ." n9£ He is no longer married to the spouse who figured so prominently in the California debacle.

n9 To qualify for a Maryland real estate broker's license, an applicant must, among other things, "be of good character and reputation."£ Maryland Code (1988 Supp.), Art. 56A, § 4-305(b).

   The question we must answer is: what sanction against Sparrow is now required in order to protect the citizens of Maryland and preserve the integrity of our Bar?  In Agnew, supra, we said that "[d]isciplinary procedures have been established . . ., not for punishment, but rather as a catharsis for the profession and a prophylactic for the public."£ 271 Md. at 549, 318 A.2d at 814. On the record [***18] before us, we cannot say that disbarment is required for either of these purposes.  Sparrow has spent five years unable to practice in California and apparently over six years not practicing law at all. Disbarment now would, in all likelihood, prevent him from practicing in Maryland for another eight to ten years.  That sort of cumulative sanction [*432] begins to look punitive, rather than cathartic or prophylactic.

   Nonetheless, Sparrow did commit serious crimes.  Although no one now questions his remorse and his recognition of the seriousness of his conduct, we have before us no actual finding of rehabilitation.  Indeed, one of the California hearing panel's findings, unchanged by the Review Department, was that Sparrow was not rehabilitated when he appeared before it in early 1984. Nor have we any fact-findings on whether Sparrow has kept up with the law so that he is presently professionally competent.  Under these circumstances, we think an indefinite suspension is appropriate, with leave to apply for reinstatement at the expiration of one year from the date of this order. Reinstatement is dependent upon Sparrow demonstrating to our satisfaction his rehabilitation, his [***19] present competence to practice law in Maryland, and that he has paid in full the costs of this proceeding.

   IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COURT COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING THE COSTS OF TRANSCRIPTS, PURSUANT TO MARYLAND RULE BV15c FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST VICTOR H. SPARROW, III.
 
DISSENTBY: McAULIFFE

DISSENT: McAULIFFE, Judge, dissenting.

   I respectfully dissent.  The appropriate sanction in this case is disbarment. Because the respondent should not be prejudiced by the delay in the initiation of disciplinary proceedings in this State, for purposes of any subsequent petition for reinstatement I would treat the disbarment as if it had occurred at the time the disciplinary sanction was imposed in California. 

STATE ADMINISTRATION BOARD OF ELECTION LAWS v. Edwin S.BILLHIMER 
No. 172, September Term, 1987
 
Court of Appeals of Maryland
 
314 Md. 46; 548 A.2d 819; 1988 Md. LEXIS 137

 October  21, 1988

   SUBSEQUENT HISTORY: [***1] Motion for Reconsideration Denied December 2, 1988.

PRIOR HISTORY:  
Certiorari to Court of Special Appeals (Circuit Court for  Anne Arundel  County), James C. Cawood, Jr., Judge.

DISPOSITION: JUDGMENT REVERSED; CASE REMANDED TO THE COURT OF SPECIAL APPEALS WITH DIRECTIONS TO REMAND THE CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR THE ENTRY OF JUDGMENT AFFIRMING THE DECISION OF THE SECRETARY OF PERSONNEL; COSTS TO BE PAID BY THE APPELLEE.

CORE TERMS:  unclassified, classified service, deputy administrator, merit system, training, qualifications, arbitrator, exemption, administrator, election, engineering, educational, scientific, expertise, classification, classified, competitive examination, exempted, termination, supervisor, personnel, deputy, recommendation, exempt, duties, classified employee, substantial evidence, electoral process, matter of law, error of law

COUNSEL: ARGUED BY Carmen M. Shepard, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, Ralph S. Tyler, Assistant Attorney General, all on brief), all of Baltimore, Maryland, for appellant.

   ARGUED BY Ronald H. Jarashow (William A. Franch, both on brief), both of Annapolis, Maryland, for appellee.

JUDGES: Murphy, C.J., Cole, Rodowsky, McAuliffe, Adkins, and Blackwell, JJ., and Charles E. Orth, Jr., Associate Judge of the Court of Appeals of Maryland (retired) Specially Assigned.  Adkins, Judge, dissenting, in which Cole, J., joins.

OPINIONBY: MURPHY

OPINION: [*48] [**821] This case involves Maryland's Merit System Law, Maryland Code (1988 Repl.Vol.), Article 64A (the Act) and whether, under its provisions, the Deputy Administrator of the State Administrative Board of Election Laws is a classified [***2] or unclassified State employment position. n1

n1 Unless otherwise indicated, all section references are within Art. 64A.

   I

   The "classified service" is defined in § 1 to mean "all offices of profit or trust and all places of employment, [*49] whether permanent or temporary, in the service of any State . . . department, commission, board or institution" other than those in the military forces and those enumerated in § 3.  With exceptions not here pertinent, a "classified service employee" is defined in § 1 as a person "who holds under the terms of this article, a position in the classified service."

   The enumeration in § 3 of positions not within the classified service is set forth in seventeen numbered paragraphs; they include, in § 3(13), all positions in State boards, commissions, departments and institutions
"which the Secretary [of Personnel] may determine, with the approval of the Governor, require medical, engineering, scientific, educational or expert training and qualifications."£ (Emphasis added.)
[***3] Section 4, in twelve numbered paragraphs, delineates additional positions which are not included in the classified service. Other express exclusions from the classified service are contained in §§ 6 and 9V(a) of the Act. n2

n2 Although not here applicable, we note that ch. 543 of the Acts of 1988 amended the Act in several important particulars.  Section 1(6) now defines "classified service" to mean "all positions for which persons are selected on a competitive basis" under the Act's provisions.  The term "unclassified service" is defined in § 1(20) to mean "all positions specifically excluded from the classified service" under the Act.

   Numerous sections in the Act expressly include named positions as within the classified service; some of these sections blanket existing positions and their incumbents into the classified service without competitive examination, based on a specified period of prior service in the position.  See, e.g., §§ 5, 7, 8, and 8A. n3

 n3 According to the Annual Report of the Secretary of Personnel for the Fiscal Year ended June 30, 1987, 47,580 State employees are within the classified service while 9,457 are unclassified employees of the State.

[***4]

   The Secretary of Personnel is vested with rule-making authority by § 11 in the enforcement of the provisions of [*50] the Act.  The Secretary is directed by § 15, among other things, to determine the nature of all positions in the State service.

   Absent express statutory inclusion as a classified service employee, eligibility for such an employment status depends upon the results of a competitive examination administered by the Secretary.  From a "list of eligibles" passing the examination, the selection must be made from those five individuals scoring the highest in the competitive examination. §§ 17, 18, and 22.

   Under § 33(d), the Secretary is required to prescribe, by rule, "what may constitute causes for removal" from the State service.  A classified employee may be removed from his position only for cause, upon written charges, and an opportunity to be heard in his own defense; a broad right of appeal is provided to the terminated employee.  COMAR 06.01.01.47 and .61.  An unclassified employee may be terminated at will without a showing of cause and his right of appeal "is limited to the legal and constitutional bases for the termination."£ COMAR 06.01.01.60 and .62.  See [***5] Bender v. Sec., Dep't of Personnel, 290 Md. 345, 351, 430 A.2d 66 (1981).

   II

   The State Administrative Board of Election Laws (SABEL) was created by ch. 555 of the Acts of 1969, now codified as Code (1986 Repl.Vol.), Art. 33, § 1A-1. It assumed functions previously performed by the Secretary of State, including supervision of the conduct of elections within the State to assure compliance with Maryland's [**822] Election Code by the City of Baltimore and County Boards of Supervisors of Elections. n4£ Art. 33, § 1A-1(e).  The Act creating SABEL provided for a State Administrator of [*51] Election Laws, but neither that Act nor any subsequent legislation made provision for the position of Deputy Administrator. No mention was made in the original or in any subsequent legislation whether SABEL's employees were classified or unclassified State employees. n5

n4 The boards of supervisors of elections, whose responsibilities are to "have charge of and make provision for all elections to be held" in their county or city, Art. 33, § 2-9, were created twelve years before SABEL.  See ch. 739 of the Acts of 1957; Code, Art. 33, § 2-1.

[***6] 

n5 Section 1A-1(d) provides only that SABEL shall "consist of employees provided in the annual State budget from time to time."

   In August 1971, Edwin Billhimer began work at SABEL as State Supervisor of Voting Machines.  He did not take a competitive examination for this position, nor was he selected from an "eligible list" of those who had passed such an examination.  According to Department of Personnel records Billhimer was given a classification code number of 5421, which indicated that he was an unclassified employee. n6£ In January 1972 Billhimer took and passed an examination for the position of Election Chief Clerk in the State classified service. This position did not exist within SABEL; it was available only at local boards of supervisors of elections. Billhimer was never selected for this position and thus never served as Election Chief Clerk.

n6 Code numbers are used in Department of Personnel records to indicate whether the employee's position is in the classified or unclassified service.

[***7]

   In late 1977 the position of Deputy State Elections Administrator was created within SABEL and Billhimer was promoted into this position.  The Department of Personnel code numbers assigned to the new position indicated that it was unclassified. Billhimer remained SABEL's Deputy Administrator until December 1982.  That month he received a letter from SABEL's State Administrator terminating his employment effective December 31, 1982 and advising him that, under the personnel rules applicable to unclassified employees his right of appeal was limited to an inquiry into whether he was discharged for illegal or unconstitutional reasons.

   Contending that he was a classified employee, Billhimer appealed his discharge to the Secretary of Personnel. In [*52] April 1983 a hearing was held, as authorized by law, before a Department of Personnel arbitrator. By agreement of the parties the sole issue was Billhimer's classified or unclassified status.

   To show that Billhimer was an unclassified employee, SABEL introduced into evidence a draft of a 1976 Department of Personnel Report of Survey; it examined the job descriptions of, and staffing pattern for, the nine permanent positions that, in [***8] addition to the State Administrator, then existed at SABEL. The report described Billhimer's then position of State Supervisor of Voting Machines as "the technical expert in charge of voter registration, ballot layout and arrangement, and voting machines."£ The survey team stated in the report that because SABEL lacked a deputy administrator to "take charge of the routine day-to-day decisions in the Administrator's absence and . . . to assume his responsibilities in the event the Administrator's position is suddenly vacated," a serious weakness existed in SABEL's organizational structure.  The survey team urged that a Deputy Administrator position be created at SABEL by augmenting the duties of one of the existing SABEL positions; suggested that the position be filled by someone possessing "either a college degree with considerable administrative experience or someone with considerable experience in the electoral process and proven administrative ability"; and stated that "due to the sensitive nature of such a position, placement in the Unclassified Service is also warranted."

   In addition to the draft report, SABEL introduced into evidence letters from, and internal memoranda of, [***9] the Department of Personnel indicating its support for the creation of the new Deputy Administrator position [**823] as unclassified and assigning the position an unclassified code number.  Further evidence adduced included documents showing the reclassification of Billhimer's former Supervisor of Voting Machines position into the new Deputy Administrator position and Billhimer's promotion into the new position.  Billhimer [*53] introduced no evidence beyond the letter notifying him of his termination.

   In her Proposal for Decision issued in February 1984, the arbitrator, in five proposed findings of fact, summarized the foregoing evidence presented by SABEL. In her proposed conclusions of law, the arbitrator, after quoting from §§ 1 and 3(13) of the Act, stated: "Clearly, the Deputy Administrator position is one requiring definite and specific expertise."£ The arbitrator concluded that "Mr. Billhimer never has been and, at the time of his termination was not, a classified employee. At the time of his appointment he accepted the benefits of unclassified status by not having to compete for the position under Merit System procedures.  He cannot now, at his termination, rightly claim the protections [***10]of the Merit System in seeking to overturn his discharge."

   In March 1984 the arbitrator's proposed findings of fact and conclusions of law were adopted by the Director of the Employer-Employee Relations Division. The Director denied Billhimer's request to present two documents that had not been presented at the hearing.  Billhimer's case was thereafter set for a hearing and restricted to the legal and constitutional bases for his termination. Prior to the hearing, Billhimer informed the Secretary that he knew of no illegal or unconstitutional bases for the discharge.  No hearing, therefore, was held, and in June 1984 the Secretary, accepting the findings of the arbitrator, issued an order separating Billhimer from SABEL effective December 31, 1982.

   Billhimer appealed to the Circuit Court for Anne Arundel County and moved for leave to present additional evidence.  The court (Cawood, J.) granted the motion, and in May 1985 remanded the case to the Department of Personnel to receive additional evidence, retaining jurisdiction to decide the substantive issues after the additional evidence had been obtained.  In July 1985 the arbitrator received into evidence from Billhimer a SABEL organization [***11]chart and a letter reporting that in January 1972 Billhimer had taken [*54] and passed a Department of Personnel examination for the position of Election Chief Clerk.  Testifying at this hearing, Billhimer acknowledged that the Election Chief Clerk position existed only at local boards of supervisors of elections and not at SABEL, and that he never held the position; he stated, however, that, as a SABEL employee, on several occasions he worked temporarily at the local boards, performing duties comparable to those of the Chief Election Clerks in those offices.

   The arbitrator also received additional evidence from SABEL, i.e., Department of Personnel records showing that at all times during Billhimer's employment at SABEL the code numbers assigned to his position indicated merit system exemption; a document explaining the meaning of the classification code numbers; a memo from Robin J. Zee, then the Department's Director of Classification and Compensation, pertaining to contact between the Secretary and the Governor's Office with regard to SABEL; and documents showing that SABEL's request for the creation of the Deputy Administrator position was presented to the State Board of [***12] Public Works and was approved after discussion.

   The Zee memorandum was dated December 3, 1969; it stated

   "Commissioner [Secretary] Bosz contacted the Governor's Office and it is their intention that all positions in this agency should be exempt. It was felt that the legislation creating this agency intended that this be so even though it wasn't specifically stated.  Part of the functions for the new agency were formerly performed by the Secretary of State's Office.  There is a feeling that this new agency is directly tied to the Executive Department which is exempt from the Merit System. The Governor [**824] had promised the new Administrator that he could employ any person he desired."

   The document from the Board of Public Works was dated December 16, 1977. Then Acting Governor Lee, Comptroller Goldstein, and Treasurer James were members of the Board at that time.  The document stated, in relevant part, [*55]that there was an emergency need to approve "the establishment of a new classification of Deputy State Election Administrator" at SABEL; that a Department of Personnel survey of SABEL indicated that "a serious weakness in organizational structure existed without a Deputy [***13] Administrator"; and that this position would "allow someone full authority to take charge of routine day-to-day decisions in the Administrator's absence and to assume his responsibilities in the event the Administrator's position is suddenly vacated for any reason."£ The document further noted that the request had been initiated by the Department of Personnel, had been reviewed by the Department of Budget and Fiscal Planning, and approval was recommended.  Prior to approving the new position, the Board members were told that it was not an additional position at SABEL but rather a new classification.

   Upon this additional evidence, the arbitrator, in January 1986, found that throughout Billhimer's employment at SABEL his classification code numbers indicated merit system exemption and that the Governor's office in 1969 expressed its intention that all SABEL positions be unclassified. "Nothing presented at the July 1, 1985 hearing," the arbitrator said, "has caused me to alter the conclusions reached in my February 22, 1984 decision."

   The case returned to the circuit court.  That court held that Billhimer had shown, as a matter of law, that his position had not been exempted from the [***14]classified service. In reversing the Secretary, the court reasoned that § 3(13) of the Act required four criteria or elements to establish exemption from the classified service, i.e.:

   "1. There must be a State position.

   2. The Secretary of Personnel must determine that the position requires medical, engineering, scientific, educational or expert training and qualifications and should be unclassified.

    3. The Governor must concur in that approval.

   4. There must be at least some indication that such training and qualifications are required; in other words, [*56] this cannot be used as a subterfuge to defeat the system."
 
According to the court, the evidence before the arbitrator failed to establish the second and third elements.  The only evidence probative of these elements, the court said, was the Zee memorandum which failed to show that the Secretary ever determined that Billhimer's position required "medical, engineering, scientific, educational or expert training and qualifications," or that the Governor ever approved that determination.  The reasons advanced for treating SABEL's employees as unclassified, the court said, did not satisfy § 3(13)'s statutory requirements. [***15]

   The court also rejected the argument that Billhimer's classification code numbers established that he was in an unclassified position.  Quoting Henslee v. State Personnel Board of Review, 239 N.E.2d 121, 123, 15 Ohio App.2d 84 (1968), the court stated: "The fact that a position is carried on the auditor's payroll as being in the unclassified service does not establish that classification."£ Also unconvincing to the circuit court was SABEL's contention that because Billhimer accepted the benefits of unclassified status by not passing a competitive examination for his position, he could not now claim classified status.  To accept this argument, according to the trial court, "would mean that the executive branch could place any person in the unclassified service, however illegally or haphazardly, inform them of the same, and then, in effect, deprive them of the benefits of the classified service."£ The court remanded the case for a hearing on the merits of Billhimer's termination.

   SABEL appealed to the Court of Special Appeals, which affirmed the judgment of the circuit court.  State Election Bd. v. Billhimer, 72 Md.App. 578, 531 A.2d 1298 [**825] (1987). [***16] The intermediate appellate court, stating that the trial court reversed the agency as a matter of law and not on the basis of the agency's factual findings, held that that court had correctly concluded that the agency misconstrued and misapplied the law.  It first noted that the legislature, in 1971, amended both the Act (§ 9G) and the Election Code (Art. 33, [*57] § 2-6) "to place all continuously employed permanent employees of the boards of supervisors of elections in the various subdivisions of the State in the State's classified service" under the jurisdiction of the Secretary of Personnel. 72 Md.App. at 584, 531 A.2d 1298. While the intermediate appellate court recognized that these amendments did not explicitly place SABEL employees in the classified service, it said that neither did they "expressly exempt the SABEL staff from the classified service."£ Id.£ Building upon this premise, the court reasoned that the statutory language of § 1 of the Act was clear and unambiguous, namely, that all employees of the state are deemed classified unless specifically exempted. Id. at 586, 531 A.2d 1298. The only specific [***17]exemption applicable to SABEL's employees, in the court's view, was that provided by § 3(13) of the Act.  According to the court, however, the findings on which the Secretary grounded his decision did not show that either Billhimer's original position or his subsequent Deputy Administrator position had ever been properly exempted in accordance with § 3(13)'s requirements.  The survey team draft report was not sufficient to establish any of § 3(13)'s elements, the court stated, because it was not a finding relied upon by the arbitrator and, in any case, it did not explicitly find that the Deputy Administrator position requires "medical, engineering, scientific, educational or expert training and qualifications."£ Id. at 588, 531 A.2d 1298. The intermediate appellate court further found that the Zee memorandum was also deficient as there was no indication in it that the SABEL employees were to be exempted for the reasons required by § 3(13).  The court also rejected SABEL's other arguments, in particular, its contention that Billhimer's personnel classification code numbers proved his unclassified status.  This finding, it said, rested on a spurious theory [***18] of "bureaucratic osmosis, i.e., a gradual absorption into an unclassified status by virtue of misidentification."£ Id. at 591, 531 A.2d 1298. We granted certiorari to consider the significant issue raised in the case.

   [*58] III

   The standard and scope of review of the Secretary's decision is set forth in the Maryland Administrative Procedure Act, Code (1984) § 10-215 of the State Government Article.  Subsection (g)(3) provides that a reviewing court may

   "reverse or modify the decision [of the agency] if any substantial right of the petitioner may have been prejudiced because a finding, conclusion, or decision of the agency:

   (i) is unconstitutional;

   (ii) exceeds the statutory authority or jurisdiction of the agency;

   (iii) results from an unlawful procedure;

   (iv) is affected by any other error of law;

   (v) is unsupported by competent, material, and substantial evidence in light of the entire record as submitted; or

   (vi) is arbitrary or capricious."

   In determining whether an agency's decision is supported by substantial evidence, we are mindful that substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support [***19] a conclusion."£ Supervisor v. Group Health Ass'n, 308 Md. 151, 159, 517 A.2d 1076 (1986); Bulluck v. Pelham Woods Apartments, 283 Md. 505, 512-13, 390 A.2d 1119 (1978); Snowden v. Mayor & C.C. of Balto., 224 Md. 443, 448, 168 A.2d 390 (1961). In applying the substantial evidence test, we must not substitute our judgment for the expertise of the agency, Supervisor of Assessments of Montgomery County v. Asbury Methodist Home, Inc., 313 Md. 614, 547 A.2d 190 (1988); Motor Vehicle Admin. v. Lindsay, 309 Md. 557, 564, 525 A.2d 1051 (1987); Group Health Ass'n, supra, 308 Md. at 159, [**826] 517 A.2d 1076; Bernstein v. Real Estate Comm., 221 Md. 221, 230, 156 A.2d 657 (1959), appeal dismissed, 363 U.S. 419, 80 S.Ct. 1257, 4 L.Ed.2d 1515 (1960), for the test is a deferential one, requiring "restrained and disciplined judicial judgment so as not to [*59] interfere with the agency's factual conclusions," Asbury Methodist, supra, 313 Md. at 625, 547 A.2d 190; [***20] Insurance Comm'r v. Nat'l Bureau, 248 Md. 292, 309-10, 236 A.2d 282 (1967). This deference applies not only to agency fact-finding, but to the drawing of inferences from the facts as well.  St. Leonard Shores Joint Ven. v. Supervisor, 307 Md. 441, 447, 514 A.2d 1215 (1986); Bulluck, supra, 283 Md. at 513, 390 A.2d 1119; Snowden, supra, 224 Md. at 448, 168 A.2d 390. When, however, the agency's decision is predicated solely on an error of law, no deference is appropriate and the reviewing court may substitute its judgment for that of the agency.  Washington Nat'l Arena v. Comptroller, 308 Md. 370, 378-79, 519 A.2d 1277 (1987); Ramsay, Scarlett & Co. v. Comptroller, 302 Md. 825, 490 A.2d 1296 (1985). In brief, so long as the agency's decision is not predicated solely on an error of law, we will not overturn it if a reasoning mind could reasonably have reached the conclusion reached by the agency.

   (A)

   We do not share the view of the circuit court and Court of Special Appeals that the arbitrator [***21] misconstrued and misapplied the law.  As the arbitrator correctly stated, the law controlling this case is contained in §§ 1 and 3(13) of Article 64A.  While the circuit court's analysis of § 3(13) into four component elements is of considerable aid, it does not compel the conclusion that the arbitrator erred in her interpretation and application of that section.  Indeed, the arbitrator identified the controlling law, stated it accurately, and contravened no canons of statutory construction or expressions of legislative intent in construing it.

   Nor do we think that the arbitrator incorrectly applied the provisions of § 1 of the Act by failing to conclude, in the circumstances of this case (as did the Court of Special Appeals), that Billhimer was a classified employee simply because his position was not specifically exempted from the classified service. A "classified service employee," as we earlier observed, is defined in § 1 of the Act as a [*60] person "who holds [a classified position] under the terms of this article."£ That Billhimer did not achieve his position through the competitive examination process, as required by the Act's terms, or through compliance with a statutory [***22] provision, is clear from the record. Thus, to determine as a matter of law that Billhimer was a classified employee totally ignores the uncontradicted evidence that he never qualified for this status "under the terms of this article."£ Moreover, the intermediate appellate court was wrong in placing any reliance upon the provisions of § 9G of the Act; that statute relates solely to the local boards of supervisors of elections and has no application to the employment status of SABEL employees.

   We thus find that no error of law affected the Secretary's decision.

   (B)

   In determining whether the Secretary's decision was supported by substantial evidence, it is well to distinguish two issues that have become somewhat intertwined in the treatment accorded them below.  The first is whether Billhimer occupied an unclassified position when he began work for SABEL in 1971 as State Supervisor of Voting Machines.  The second is whether the position Billhimer occupied from 1978 to 1982 as Deputy Administrator was unclassified. The second issue is, of course, the decisive one.  We think there was substantial evidence to support the Secretary's determination that when occupying the Deputy Administrator [***23] position Billhimer was an unclassified employee.

   The four elements required for exemption by § 3(13), as the circuit court correctly stated, are: the existence of a State position; the Secretary's determination that the position requires medical, engineering, scientific, educational, or expert [**827] training and qualifications; the Governor's approval of the Secretary's determination; and a showing, applicable here, that the position is one requiring "expert training and qualifications."

   [*61] The first element is not at issue.  The fourth element was adequately established, we think, by the draft survey report and the December 1981 questionnaire describing the Deputy Administrator's duties. Both of these documents indicated that the Deputy Administrator's responsibilities required a broad knowledge of the electoral process, as well as the expertise needed to assume the functions of the Administrator, if necessary.  This was substantially equivalent to stating that the position required expert training and qualifications within the contemplation of § 3(13).

   The second element was established by the evidence showing that the Secretary, in recommending the creation of the Deputy Administrator [***24] position, adopted the findings of the Department's survey report.  Evidence probative here included a November 1977 letter from the Department's Supervising Analyst to the then Secretary of the Department of Budget and Fiscal Planning, confirming the Secretary's support for the Deputy Administrator position, and stating that the "recommendation was made in our survey conducted in 1976."£ This letter, considered together with other documents showing that the Secretary directed that the Deputy Administrator position carry an unclassified personnel code number, supports the inference that the Secretary adopted the draft report's findings that the position required expert training and expertise.

   As to the third element, whether the Governor approved the Secretary's determination, SABEL introduced into evidence a document showing that the Deputy Administrator position was approved by the Governor while acting as a member of the Board of Public Works. n7£ The transcript accompanying this document does not indicate that the Governor expressly recognized that the Deputy Administrator position was one which required expert training and qualifications. Nevertheless, an inference can be drawn [***25] [*62] that the Governor was aware of the nature of the Deputy Administrator position, the Department of Personnel's recommendations concerning it, and the history of SABEL employees' unclassified status.  This evidence, although not strong, is not so insubstantial as to warrant overturning the agency's decision, given the presumption of correctness with which agency decisions reach a reviewing court. See Bulluck v. Pelham Woods Apartments, supra, 283 Md. at 513, 390 A.2d 1119. In this regard, we are mindful that the heart of the fact-finding process often is the drawing of inferences from the facts.  That function is committed to the agency, and the court may not substitute its judgment on the question whether the inference drawn is the right one or whether a different inference would be better supported.  The test is reasonableness, not rightness.  Bulluck, supra, 283 Md. at 515-16, 390 A.2d 1119, quoting Snowden v. Mayor & C.C. of Balto., 224 Md. 443, 448, 168 A.2d 390 (1961).

n7 Code (1980 Repl.Vol.), Art. 78A, § 16B requires approval by the Board of Public Works of any permanent position sought to be created in excess of those included in the budget.

[***26]

   In determining whether there was substantial evidence to support the agency's decision, we consider, in addition to evidence of compliance with § 3(13), other probative evidence on the record relied upon by the Secretary to support his decision.  This includes the evidence showing that since its inception all SABEL employees, with the Governor's approval, have been in the unclassified service and that the Secretary's personnel codes have consistently identified these employees as unclassified. Coupled with this evidence, we consider as well the affirmative showing in this case that Billhimer did not satisfy the Act's requirements for classified service status.  Viewing the evidence in a light most favorable to the agency, as we must do, we conclude that the Court of Special Appeals erred in overturning the Secretary's decision.

   [**828] JUDGMENT REVERSED; CASE REMANDED TO THE COURT OF SPECIAL APPEALS WITH DIRECTIONS TO REMAND THE CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR THE ENTRY OF JUDGMENT AFFIRMING THE DECISION OF THE SECRETARY [*63] OF PERSONNEL; COSTS TO BE PAID BY THE APPELLEE.

DISSENTBY: ADKINS

DISSENT: ADKINS, Judge, dissenting, in which COLE, J., joins.

   Edwin Billhimer (Billhimer) once [***27] was the deputy administrator of the State Administrative Board of Election Laws (SABEL).  In 1982 he was separated from that position, pursuant to procedures applicable to State employees in the unclassified service.  His claim to the protection of procedures available to those in the classified service or merit system was rejected by the Department of Personnel. The Circuit Court for Anne Arundel County (Cawood, J.) and the Court of Special Appeals, State Administrative Bd. of Election Laws v. Billhimer, 72 Md.App. 578, 531 A.2d 1298 (1987), saw it otherwise.  A majority of this Court now holds that Billhimer was indeed in the unclassified service.  Because the majority, in reaching its conclusion, has failed to construe the statutes here involved in a manner consistent with the legislative goals sought by those statutes, I respectfully dissent.

   By Ch. 41, Acts of 1920, the General Assembly added to the Annotated Code Article 64A, entitled "Merit System."£ In so doing, Maryland became the tenth state to enact a merit system law.  See O. Stahl, Public Personnel Administration 33 (6th ed. 1971).  This State was, therefore, in the forefront of [***28] the movement to bring about more efficient state government and, what is more important, to try to exclude from government service aspects of corruption and political patronage that had so concerned reformers of the late nineteenth and early twentieth centuries.  See R. Vaughn, Principles of Civil Service Law, § 1.2 (1976).  As the Court of Special Appeals has recognized, "[o]ne of [the] purposes [of Article 64A] is to provide standards of employment and advancement through testing, etc., intending to avoid problems inherent in political spoils systems such as nepotism and related abuses."£ Sec., Dep't of Personnel v. [*64] Bender, 44 Md.App. 714, 715, 411 A.2d 107, 108 (1980), aff'd and rem'd, 290 Md. 345, 430 A.2d 66 (1981). n1

 n1 "The merit system plank was the chief pledge of the Democratic party's platform" in the 1919 campaign, and there was considerable pressure on Governor Ritchie's administration to assure the enactment of a broad and "efficient merit system applicable to the offices of the State government."£ Editorial, Baltimore Sun, Feb. 25, 1920, at 10, col. 1.

[***29]

   Cynics or pragmatists may argue that one cannot take the politics (i.e., patronage) out of politics and that Governors and others who occupy the seats of power will find methods of achieving what they wish despite merit system laws. It may be that laws of this sort are subject to evasion, avoidance, and misadministration.  But a court should not countenance efforts of those kinds when a proper construction of the law will tend to prevent them.  Our task is to effectuate the legislative goal embodied in the statute.  Kaczorowski v. City of Baltimore, 309 Md. 505, 513-515, 525 A.2d 628, 632-633 (1987).

   Article 64A, § 1, n2 places within the classified service (the merit system) essentially all State positions, other than those in the military and those expressly exempted by specific statutory provision.  This statement of almost total preference for the classified service demonstrates the powerful thrust of Article 64A as remedial legislation that must be liberally construed to implement its purpose.  E.g., Neal v. Fisher, 312 Md. 685, 693-694, 541 A.2d 1314, 1318-1319 (1988); Carolina Freight Carriers v. Keane, 311 Md. 335, 339, 534 A.2d 1337, 1338 (1988); [***30] Culotta v. Raimondi, 251 Md. 384, 387, 247 A.2d 519, 521 (1968). By the same token, exemptions from remedial legislation must be narrowly construed.  3 C. Sands, Sutherland's Statutes and Statutory Construction § 60.01 (4th ed. rev. 1986); see Saunders v. Unemployment [**829] Compensation Board, 188 Md. 677, 683, 53 A.2d 579, 581 (1947) (this Court, in general, agreed with [*65] the rule that "exclusions in remedial statutes should be strictly construed"; the Court, however, did not apply the rule in that case).

n2 Unless otherwise noted, all section references are to sections of Article 64A.  And the sections are taken as they stood at the times relevant to this case.

   The exemption before the Court in this case is § 3(13).  It excludes from the classified service "[a]ll positions in State offices, boards, commissions, departments and institutions, which the Secretary [of Personnel] may determine, with the approval of the Governor, require medical, engineering, [***31] scientific, educational or expert training and qualifications."£ The trial court and the Court of Special Appeals viewed and the majority views this provision as requiring four elements for exemption:

    [1] the existence of a State position; [2] the Secretary's determination that the position requires medical, engineering, scientific, educational, or expert training and qualifications; [3] the Governor's approval of the Secretary's determination; and [4] a showing, applicable here, that the position is one requiring 'expert training and qualifications.'
 
314 Md. at 60, 548 A.2d at 826, 827. I agree with this analysis of the statute, but cannot agree that it was complied with here.  I believe that at the agency level this statute was misconstrued -- a misconstruction also adopted by the majority.  Because, however, the agency decision was predicated on an error of law, "no deference is appropriate and the reviewing court may substitute its judgment for that of the agency."£ Id. at 59, 548 A.2d at 826; Washington Nat'l Arena v. Comptroller, 308 Md. 370, 378-379, 519 A.2d 1277, 1281 (1987).

   In a cursory manner, the majority concludes [***32] that the "expert training and qualifications" factor of § 3(13) was met because Deputy Administrator Billhimer's "responsibilities required a broad knowledge of the electoral process, as well as the expertise needed to assume the functions of the Administrator."£ 314 Md. at 61, 548 A.2d at 827. The need for expertise is said to be demonstrated in a draft survey report prepared by the Department of Personnel, [*66] and by a December 1981 questionnaire describing the deputy administrator's duties.

   The 1976 draft report reviews job descriptions and staffing patterns as they then existed at SABEL -- a staff which contained but five full-time positions. As to Billhimer's then position, the report says it "serves as the technical expert in charge of voter registration, ballot layout and arrangement, and voting machines . . . ."£ The report also identifies the need for a deputy administrator who could "take charge of the routine day-to-day decisions in the Administrator's absence and the ability to assume his responsibilities in the event the Administrator's position is suddenly vacated for any reason . . . ."£ The report's authors suggest that the deputy administrator's [***33] position "be filled by someone who possesses either a college degree with considerable administrative experience or someone with considerable experience in the electoral process and proven administrative ability."£ Because of "the sensitive nature of the position," and not because of any purportedly necessary expertise, the authors conclude that "placement in the unclassified service is also warranted."

   The 1981 document, a position questionnaire prepared by Billhimer, lists the deputy's duties as
to assist in all phases of the election process that are the statutory duties of the Administrator and of SABEL.  In addition, the Deputy assumes full authority for the day to day operations and policy decisions in the Administrator's absence and assumes temporarily the responsibilities if that position is suddenly vacated for any reason.
 
Other duties listed include such matters as "[s]upervise the collection and tabulation of voter statistics," "maintain inventory of all voting equipment used by local boards," "[s]upply applicants with voter lists," "[p]repare . . . ballot . . . form and layouts for each local board," "[m]aintain a general overview of all office operations," and [***34] "[s]erve as office parking coordinator."£ The "expertise" revealed by these documents is not the sort of "expert training and knowledge" demanded by § 3(13).
 
   [*67] [**830] I again emphasize that § 3(13) is a narrow exception to the fundamental principle of inclusion of position within the classified service. n3£ The specific sorts of expertise it identifies are "medical, engineering, scientific [and] educational . . . ."£ No one contends that Billhimer possesses any particular expertise in any of these areas.  But the specification of these fields sheds light on the meaning of "expert training and qualifications."£ Each of the specified areas is likely to involve not only a high degree of professional skill, but also substantial, degree-level academic qualifications. Persons possessing these qualifications, the legislature may well have thought, need not have their proficiency determined by competitive examination. Moreover, professionalism and ethical standards related to these fields lessen other concerns addressed by a merit system. See Vaughn, § 3.2 for examples of types of positions typically excluded from the examination requirement.  It is "expert training and qualifications" of [***35] this sort to which § 3(13) refers.

n3 Indeed, the very provision that is now § 3(13) was criticized as being too broad an exemption. The Ritchie administration defended against this attack by arguing that the exemption was in reality a narrow one, since the positions mentioned in the section were included in the merit system unless excluded by the Governor pursuant to the section's provisions.  Baltimore Sun, March 3, 1920, at 7, col. 2.

   It must be so, because the construction adopted by the majority is wholly inconsistent with the legislative goal of Article 64A.  As a factual matter, the record shows that Billhimer's position demanded, at best, modest middle management abilities and some understanding of the electoral process and the equipment and forms used in it.  The latter knowledge is of the type that may be readily garnered by on-the-job training or simply job experience.  If that is all that is demanded by "expert training and qualifications" then every second or third level manager in State service may [***36] be exempted from the classified service, along with others not even at the managerial level.  Such a reading of § 3(13) is simply not consistent with the legislature's tightly-drawn exclusion from its basic merit system [*68] scheme.  A reading that requires "expert training and qualifications," to include academic requirements and high skills of a professional nature, is consistent with this scheme. n4£ This reading implements the legislative goal, rather than frustrating it.  NCR Corp. v. Comptroller, 313 Md. 118, 146, 544 A.2d 764, 767 (1988).

n4 Although canons of statutory construction should not be applied in a mechanical or mindless fashion, NCR Corp. v. Comptroller, 313 Md. 118, 145, 544 A.2d 764, 777 (1988), "[t]o a considerable extent, they are founded on both logic and common sense . . . [and] properly used, they afford an opportunity for principled decision making . . . ."£ Kaczorowski v. City of Baltimore, 309 Md. 505, 512, 525 A.2d 628, 631 (1987). In this case, the rule of ejusdem generis supports the construction I give to the statute; it advances rather than frustrates the purpose of the statute.  Culotta v. Raimondi, 251 Md. 384, 387, 247 A.2d 519, 521 (1968). I apply to the general phrase "expert qualifications and training" the same meaning contained in the particular items "medical, engineering, scientific, educational . . . ."£ See State v. 149 Slot Machines, 310 Md. 356, 363-364, 529 A.2d 817, 820-821 (1987). It is as though the statute read "medical engineering, scientific, educational or similar expert training and qualifications."

[***37]

   I do not believe there is substantial evidence in this record to support the agency finding that the Secretary of Personnel determined that the deputy administrator position fell within the requirements of § 3(13).  The purported evidence in this regard is a 1977 letter from the Department of Personnel to the Secretary of Budget and Fiscal Planning advising that a recommendation that the position be unclassified was contained in the 1976 report.  There was such a recommendation in that report, but it was not based on any § 3(13) findings. That statute was not even mentioned in the report.  As we have seen, the recommendation was based on the notion that the position was "sensitive."£ That is totally irrelevant to § 3(13).  Nor do I think that the Governor's unexplained vote at the 16 December 1977 Board of Public Works meeting demonstrates that he approved the position as being within the requirements of § 3(13). n5£ It is all very well to speak of [**831] inferences, as the [*69]majority does, 314 Md. at 59, 548 A.2d at 826. But surely, exclusion from the legislatively established merit system, pursuant to a narrow exemption provision, requires the dotting of a few more [***38] "i's" and the crossing of a few more "t's" than we have here.  I suggest we are dealing with rank speculation, not rational inferences. n6

n5 The Board of Public Works agenda for that meeting sets up the matter as involving no more than an emergency amendment to the pay plan, requiring approval of the Board pursuant to Art. 64A, § 27(a).  Neither the agenda nor the relevant portion of the transcript of the Board meeting contains any hint that the agenda item dealt with creation of the unclassified position pursuant to § 3(13).

n6 The absence of any real sort of administrative paper trail to substantiate the State's position is, perhaps, explained by a 3 December 1969 memo to the file from Robin Zee, then director of the Division of Classification and Compensation in the Department of Personnel. Regarding SABEL, Zee wrote:

   Commissioner [later Secretary of Personnel] Bosz contacted the Governor's Office and it is their intention that all positions in this agency [SABEL] should be exempt . . . .  There is a feeling that this new agency is directly tied to the Executive Department which is exempt from the Merit System. The Governor had promised the new Administrator that he could employ any person he desired.
That an agency designed to assure compliance with the election laws should be the last to be exempt from the merit system is a proposition that need not now be debated.  See, however, Ch. 351, Acts of 1971, placing most permanent employees of local boards of supervisors of elections in the merit system. What is at least arguable from this memo is that SABEL positions were exempted because the Governor's Office wanted it that way and because the Governor had given the new administrator leave to hire by way of patronage.  Obviously, this approach to exemption is the antithesis of the merit system and is not a basis for exemption warranted by § 3(13).

[***39]

   None of that really matters, however, if, as I contend, § 3(13) simply does not permit the deputy administrator provision to be exempted from the merit system. Even had the Secretary of Personnel unequivocally found (on the facts in this record) the position to be within § 3(13) and had recommended exemption, even had the Governor unquestionably approved the recommendation, it would make no difference.  As a matter of law, this position was not one that met the strict exemption requirements of § 3(13).

   Nor can it matter that the Department of Personnel coded the position as an unclassified one.  Article 64A does not permit the department to remove an employee from the [*70] classified service by attaching a code number to his or her position; so far as this case is concerned, that could be done, if at all, via § 3(13), a provision not applicable to the deputy administrator slot as a matter of law. Like the Court of Special Appeals, I reject the State's "theory of bureaucratic osmosis . . . ."£ State Election Bd. v. Billhimer, 72 Md.App. 578, 591, 531 A.2d 1298, 1304 (1987).

   So Billhimer cannot have been in the unclassified service.  Where, then, [***40]was he?  The majority, with some force, says he could not have been in the classified service either, because he had taken no examination and was not placed there pursuant to any statute, 314 Md. at 69, 548 A.2d at 826. Nevertheless, I believe the majority incorrectly concludes that he did not "hold a classified position under the terms of this article."£ Art. 64A, § 1.

   It is true that Billhimer did not meet the ordinary prerequisites for entry into the classified service. But § 1, in effect, presumes that every position not exempted is in the classified service. "'The classified service' means and includes all offices of profit or trust and all places of employment, whether permanent or temporary, other than those in the military forces, and other than those enumerated in § 3 of this article" (or some other express statutory exemption).  That presumption is consistent with the legislative decision that inclusion in the classified service or the merit system is the overarching rule whereas exemption is the relatively rare exception.  See n. 3, supra, and accompanying text.  When a position falls through the cracks, thanks, perhaps, to inept work at the Department [***41] of Personnel, the legislature has decided, as a matter of policy, that the position is in the classified service.

   I would affirm the decision of the Court of Special Appeals. [**832] 

STATE of Maryland v. Eugene S. COLVIN a/k/a Eugene ShermanColvin-El 
No. 88, September Term, 1986
 
Court of Appeals of Maryland
 
314 Md. 1; 548 A.2d 506; 1988 Md. LEXIS 135

 October  14, 1988

   SUBSEQUENT HISTORY: [***1] As Amended October 19, 1988.

PRIOR HISTORY:  
Circuit Court for  Anne Arundel  (Post Conviction Proceeding), Martin A. Wolff, Judge.

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

CORE TERMS:  door, murder, basement, robbery, sentencing hearing, fingerprint, sentencing, sentencing proceeding, innocence, guilt, death sentence, knob, cabinet, sentence, premeditation, daytime, death penalty, glass, pawnbroker, jewelry, watch, card, reasonable probability, first degree murder, utilized, ironing board, ineffectiveness, housebreaking, kitchen, wallet

COUNSEL: ARGUED BY Richard B. Rosenblatt, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on the brief), both of Baltimore, Maryland, for appellant.

   ARGUED BY John H. Morris, Jr. (Bert Black and Venable, Baetjer & Howard, on the brief), all of Baltimore, Maryland, for appellee.

JUDGES: Murphy, C.J., and Eldridge, Cole, Rodowsky, McAuliffe, Adkins and Blackwell, JJ.  Blackwell, J., dissents, in which Adkins, J., concurs.

OPINIONBY: RODOWSKY

OPINION: [*4] [**507] In August 1981 Eugene Sherman Colvin, a/k/a Eugene Sherman Colvin-El (Colvin-El) was found guilty of first degree murder, robbery with a deadly weapon and daytime breaking and entering by an Anne Arundel County jury.  That same jury sentenced Colvin-El to death.  We affirmed on direct review.  Colvin v. State, 299 Md. 88, 472 A.2d 953, [*5] cert. denied, 469 U.S. 873, 105 S.Ct. 226, 83 L.Ed.2d 155 (1984) (Colvin-El I).  On post conviction review the Circuit Court for Anne Arundel County [***2] denied any relief as to the guilty verdict.  That court, however, vacated the death sentence [**508] and ordered a new capital sentencing hearing because at the original sentencing the State introduced adult criminal convictions of Colvin-El obtained under an unconstitutional procedure which had been utilized only in Baltimore City against persons between the ages of sixteen and eighteen. After leave had been granted, the State and Colvin-El presented cross appeals.

   We shall affirm.  There is no basis for relief from the verdict of guilty of first degree murder. We agree with the circuit court that the use made against Colvin-El of the prior convictions violates equal protection.  A new sentencing hearing is required in any event because the procedure employed at Colvin-El's sentencing by a jury is indistinguishable from the procedure invalidated in Mills v. Maryland,    U.S.   , 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988).

   Colvin-El's principal contention in support of a complete new trial is the claimed ineffectiveness of his trial counsel, Robert W. Payne (Payne), a private attorney assigned by the Public Defender's Office.  We reject this contention in part [***3] I.  In part II we address and reject other issues which go to guilt or innocence. We explain in part III why Colvin-El's current death sentence is vacated, subject to the State's right to seek another death sentence.

   I

   A

   The standards to be applied to claims of constitutionally deficient representation were announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Those standards were painstakingly analyzed by Judge Orth, writing for this Court in Harris v. State, 303 Md. 685, 695-701, 496 A.2d 1074, 1079-82 (1985). The Strickland standards, as reviewed in Harris, were distilled by Chief Judge Murphy for this Court in State v. Tichnell, [*6]306 Md. 428, 441-42, 509 A.2d 1179, 1185-86, cert. denied, 479 U.S. 995, 107 S.Ct. 598, 93 L.Ed.2d 598 (1986), saying:
 
A two-part test was articulated in Strickland, i.e., that to establish a claim of ineffective assistance of counsel the defendant must show both that (1) counsel's performance was deficient and (2) that the deficient performance [***4]prejudiced the defense.  [Citations omitted.]

   The prejudice component of Strickland "requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable."£ [466 U.S.] at 687, 104 S.Ct. at 2064. Accordingly, as we said in Harris, supra, 303 Md. at 700, 496 A.2d 1074, citing Strickland, 466 U.S. at 693, 104 S.Ct. at 2068, it is not enough for the defendant merely "to show that the errors had some conceivable effect on the outcome of the proceeding, or that the errors impaired the presentation of the defense."£ (Emphasis in original.)£ The burden is on the defendant to establish "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."£ Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Furthermore, a reasonable probability is "'a probability sufficient to undermine confidence in the outcome.'"£ Id.

   The Supreme Court has illustrated the first component of Strickland [***5]in Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987), and the second component in Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). Burger was a federal habeas corpus review of a Georgia death sentence. At the time of the murder the defendant was seventeen years old.  His effective I.Q. was 82 and he had no criminal record known to the prosecutors.  Defense counsel did not present at the sentencing hearing any proof designed to establish mitigating circumstances.  Defense counsel's principal reason was a concern, supported by psychological testing, that the defendant would have shown no remorse and might have bragged about the crime.  A majority of the Court held "that counsel's decision not to mount an all-out investigation [*7] into [the defendant's] background in search of mitigating circumstances was supported by reasonable professional [**509] judgment."£ 483 U.S. at    , 107 S.Ct. at 3126.

   Kimmelman discussed the prejudice element where the principal allegation of ineffectiveness was defense counsel's failure to move, within the time permitted [***6] under New Jersey's procedure, to suppress illegally seized evidence, specifically, a sheet from a bed on which the victim had allegedly been raped. The Court, through Justice Brennan, held that, in addition to objectively deficient performance, "the defendant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice."£ 477 U.S. at 375, 106 S.Ct. at 2583. Because the lower courts in Kimmelman had not utilized the Strickland approach to evaluating prejudice, the Court remanded for that determination.

   With these constitutional principles in mind we turn to Colvin-El's claim of denial of the right to counsel through ineffective representation. Understanding that claim requires a review of the facts.

   B

   On September 9, 1980, between approximately 1:00 and 2:30 in the afternoon, Lena Buchman, age 82, was murdered in her daughter's home at 6806 Cherokee Drive in the Pikesville section of Baltimore County.  Mrs. Buchman, a resident of Florida, had flown to Baltimore that morning to [***7] visit her daughter, Mrs. Majorie Sorrell.  Both Mr. and Mrs. Sorrell were out of the house, at work, when the murder occurred.  Mrs. Buchman was last seen alive by her granddaughter, Ms. Susan Sorrell, who left her alone in the house at approximately 1:00 p.m.

   Cherokee Drive is a quiet street in a predominately white neighborhood of individual homes.  The only black family is the Hayes household at No. 6804, immediately south of the [*8] Sorrells on the west side of Cherokee Drive. The Sorrells' property is improved by a split level residence.  Its main entrance, on the street side at ground level, opens onto an entrance hall.  The living room is to the left of one entering, the kitchen is in the rear of the ground level, straight on from the front door, and a dining area is on the rear, south side.  Between the entrance hall and kitchen are two sets of stairs, one to the upper, bedroom area of the house and the other to the lower, basement area.  There is a rear door in the kitchen at roughly ground level.  On the exterior of the rear of the house, below ground level, is a stairwell to a door to the basement. That door is hinged to open into the basement.

   At approximately 2:30 [***8] p.m. on the day of the murder, Mrs. Nanette Flax returned to her home at 6808 Cherokee Drive and noticed the Sorrells' dog running loose and unsupervised, a most unusual occurrence.  She retrieved the dog, hooked it by its leash to a wire run and went to the main entrance of the Sorrells' house to relate those events to whomever was home.  Getting no response to her knock, Mrs. Flax opened the unlocked screen door and stepped through the doorway of the solid, wooden front door, which was standing open. She glanced down and saw a body lying in a pool of blood at the foot of the stairs leading to the bedroom area.

   Mrs. Buchman had been stabbed or slashed with a knife twenty-eight times. Some of the cuts were defensive cuts on the hands.  Blood was splattered up the stairway but not as far as the upper end of the stairs.  The knife, one from the Sorrells' kitchen, was found at the foot of the basement stairs.  The master bedroom had been ransacked and jewelry taken.

   Glass in the exterior basement door had been broken and the police found pieces of the glass lying on the steps of the exterior stairwell.  That door is wood from its bottom to a level slightly above the knob. Above the [***9] wood are wide, rectangular glass panes, one above another.  The pane immediately above the door knob had been broken.  The [*9] center of the impact to that glass was on the knob side of the door which is the left side to one facing the door while standing in the basement.

   Detective Darrell Sturgeon, an experienced police officer and crime lab technician, [**510] dusted the crime scene for fingerprints. He obtained twelve latent fingerprints from the pieces of glass. At that time he did not know whether the prints were identifiable and, if identifiable, whose they were. 

   The interior side of the basement door was covered for the width of the window panes and from the top of the door to a level approximately one foot from the floor by a curtain made of a floral print material.  In addition to a lock in the door knob there were two chain locks on the door, one at knob level and the other roughly two feet higher.  The Sorrells rarely used this basement door and kept an ironing board in a folded position leaning against the knob side of the door. On the morning of the day of the murder, Mrs. Sorrell had observed the basement door and the folded ironing board was leaning against it as usual. [***10]Ms. Susan Sorrell also testified at trial that, when she had stopped by for lunch with Mrs. Buchman, the basement door was locked and chained and there was nothing unusual about it.  Police photographs of the basement area around the door taken facing the interior of the door at 4:20 p.m. on the day of the murder show the folded ironing board lying on the floor in front of the knob side of the door and show the two chains for the night locks hanging from the door frame, unconnected to the door.

   Detectives Sturgeon and J. Biltz filed a joint report of their investigation at the crime scene.  The report included the observations that
 
[t]he lock on the knob of the [exterior basement] door was not locked and the door could be opened, but only approx. 4 inches as there was a white metal storage cabinet on the inside of the door. No other signs of forced entry could be found.
 
[*10] The same photographs of the basement area near the door also show 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 [***11]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.  The distance between those two machines and the storage cabinet is only several inches more than the width of the ironing board.

   A fact finder could find that one attempting to open the basement door from the outside would not 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.

   As part of the investigation [***12] on the day of the murder, Officer J.K. Roger of the Baltimore County Police conducted inquiries in the neighborhood and made a written report of the results.  Ms. Wendy Janofsky of 6817 Cherokee Drive said that at approximately 2:05 p.m. she had observed four persons in the 6800 block Cherokee Drive.  There were two black males walking north in front of her house.  There was a black male riding a bicycle northbound on Cherokee, who turned and left in a southerly direction.  She also saw a white female at the door of 6812 Cherokee who "appeared to be collecting or doing a survey."£ Officer Roger also interviewed Clarence Hayes, the Sorrells' neighbor to the [*11] south.  Mr. Hayes identified his black bicycle with a baby seat on the rear and with a long pole bearing multi-colored streamers at the top. That bicycle had been found in the Sorrells' driveway.  According to Off. Roger's report Mr. Hayes stated that he had left 6804 Cherokee Drive at approximately 2:15 p.m. [**511] and that at that time "the bike was in his backyard next to the patio with a flat tire & he [was] not sure if the chain was off or not." n1

n1 At the post conviction hearing on June 3, 1985, Mr. Hayes testified that the bike did not have a flat tire when he left home on the day of the murder. The bike was found later in the Sorrell driveway with a flat tire.

[***13]

   The Sorrells' jewelry taken during the robbery had been recently appraised in a written appraisal dated June 27, 1980, which set forth detailed descriptions. The appraiser had also photographed the appraised pieces.  The written appraisal and the photographs were turned over to the police.  One item was an "Elgin, gold-filled pocket watch with safety pinion Elgin National Watch Co. movement (No. 13198679, case No. 892298)."

   In a report of September 11, 1980, Detective Roeder of the Baltimore County Police recorded that he had that day gone to the Sorrell home to photograph and take custody of additional evidence, a ring and a bracelet which had been found lying on the Sorrells' driveway.

   All of these reports had been furnished to Colvin-El's attorney, Payne, in open file discovery.

   On January 8, 1981, Colvin-El was arrested at his home at 608 North Brice Street in Baltimore City by the Baltimore City Police on a warrant charging a breaking and entering on December 2, 1980, in the Roland Park section of Baltimore City.  Seized from his person at that time was a Maryland Motor Vehicle Administration age of majority card No. C415-237-765-777 in the name of Eugene Sherman Colvin of 615 [***14] Brice Street.  That address seems to have been the home of Colvin-El's sister where he lived from time to time prior to acquiring the house across the [*12] street at 608 North Brice.  That card had been presented by the person identifying himself as Eugene Colvin who had sold property taken in the Roland Park offense at a pawnbroker, Metro Brokers Ltd.

   On January 13, 1981, Det. Michael Parks of the Baltimore County Police rolled from Colvin-El's fingers a complete set of ink fingerprints onto cards. That same day the rolled prints were matched to the latent fingerprints found on the glass from the basement door at the Sorrell home.  The Baltimore County Police immediately obtained and executed an arrest warrant charging Colvin-El with the Buchman murder.

   Each pawnbroker in Maryland is required to file certain records containing specified information with the primary law enforcement agency in the county for which the pawnbroker is licensed.  See Md.Code (1957, 1983 Repl.Vol.), Art. 56, § 422.  On January 27, 1981, Det. Parks reviewed those records filed with the Baltimore City Police.  They revealed that a person identifying himself as Eugene Colvin-El had pawned items at [***15] Northwestern Loan Company on Pennsylvania Avenue in Baltimore City on September 17, 1980.  At Northwestern Loan Company Det. Parks found that one item pawned in the name of Colvin-El eight days after the murder was a gold pocket watch which fit the description of the pocket watch taken from the Sorrell home.  A man's Timex watch was also pawned that day in a separate transaction in the name of Colvin-El.  Although not initially included among the stolen property listed by the Sorrells, Mrs. Sorrell advised the police that a watch similar to the Timex was also missing. Det. Parks took custody of both watches and they were introduced into evidence at trial.

   Colvin-El elected a jury trial for both guilt or innocence and sentencing. At the hearing on guilt or innocence Det. Sturgeon testified that the point of entry into the Sorrell home was the outside basement door. Payne did not cross-examine about the point of entry.  Colvin-El chose not to testify and Payne presented no proof of any kind at the guilt or innocence stage.

   [*13] The jury found Colvin-El guilty of first degree murder, of robbery with a deadly weapon and of daytime housebreaking. In response to special interrogatories [***16] submitted to the jury to be answered in the event the verdict was guilty of first degree murder, the jury replied that the murder [**512] verdict was based on premeditation and on the killing's having been committed in connection with each of robbery with a deadly weapon and daytime housebreaking.

   At the post conviction hearing the neighbors testified generally in accordance with their police interview statements and Ms. Wendy Janofsky's statement was basically corroborated by her mother.

   On this post conviction appeal Colvin-El principally rests his ineffectiveness of counsel argument on the absence of any use by Payne of the above-described information contained in the police reports.  Det. Sturgeon was not cross-examined concerning the apparent impossibility that the basement door was the point of entry.  Also, from the fact that the police discovered two items of the stolen jewelry on the driveway two days after the murder, it is contended that Payne should have developed a sufficiently strong suggestion that Colvin-El found the watches to generate a reasonable doubt whether he was the actual thief.  Colvin-El further submits that evidence of the use of the Hayes's bike and of the presence [***17] of unknown black males in the 6800 block of Cherokee Drive during the period when the murder occurred should have been utilized to generate a reasonable doubt whether Colvin-El was involved at all. Further, because Md.Code (1957, 1976 Repl.Vol., 1981 Cum. Supp.), Art. 27, § 413(e)(1) requires that a defendant be guilty of murder in the first degree as a principal in the first degree in order to be eligible for the death penalty, Colvin-El asserts that evidence available from neighbors should have been utilized by defense counsel to create at least a reasonable doubt whether Colvin-El was the person [*14] who actually stabbed Mrs. Buchman. n2

n2 Unless otherwise indicated all references to Art. 27, §§ 412-413 are to the above-cited Code, establishing the death penalty and the procedure for its imposition at the time of the subject offense, trial and sentencing.

   C

   None of the foregoing demonstrates the reasonable probability that Colvin-El would have been found innocent of first degree murder and of the underlying [***18]felonies if Payne had utilized the specified information for cross-examination or as evidence in a defense case.  First, none of this 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.  The State's expert witness on fingerprints was Det. Cpl. James Sims.  At the time of trial, Dept. Cpl. Sims had been the fingerprint examiner in the Baltimore County crime lab for over five years and had checked about 258,000 fingerprints in 21,000 cases.  Two latent right thumbprints and two latent right index fingerprints which had been taken from the glass matched the ink rolled fingerprints taken from Colvin-El. With respect to one of the thumbprints the match was made in forty-eight particulars.  In Sim's opinion, only seven points of identification in one print are ordinarily sufficient.  He considered the latent prints to be "absolutely excellent" with respect to detail.  He said there has never been a reported case anywhere in the world in which two different people had the same fingerprints. Thus, it is fanciful to suggest, as Colvin-El does, [***19] 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. n3 

n3 Similarly there could be no prejudice from Payne's alleged deficiency in failing to request and obtain an instruction that the jury could find that Colvin-El was only a receiver of the stolen goods.

   [*15] Colvin-El's only explanation, suggested in his testimony at the sentencing phase, was that he was "framed" by the police.  The post conviction record, however, reveals that Payne, prior to trial, had engaged an independent fingerprint expert to review the State's fingerprint evidence.  That expert found Colvin-El's fingerprints to be "somewhat unique" and "easy to identify."

   [**513] In addition, there is no doubt that Colvin-El shared in the loot. The Elgin watch recovered by Detective Parks from Northwestern Loan Company bore movement No. 13198679 and case No. 892298.  [***20] Armond Kessler, the pawnbroker who handled the transaction, testified and produced original records which showed that the person who had pawned that watch on September 17, 1980, identified himself as Eugene Colvin-El of 615 Brice Street.  The pawnbroker's retained copy of the document evidencing the transaction contains in his handwriting a contemporaneous record of the proofs of identification furnished by the person who presented the watch. One proof was Motor Vehicle Administration age of majority card No. C415-237-765-777, the same card bearing Colvin-El's name, picture and Brice Street address which had been taken from Colvin-El's person when he was arrested by the Baltimore City Police.  The second proof presented to the pawnbroker was Baltimore City Department of Social Services identification card No. C-032679.  A witness from the Department of Social Services testified that her agency had assigned that number to Eugene Sherman Colvin-El of 608 North Brice Street.  The pawnbroker also testified that the person who presented the pocket watch matched the picture on the age of majority card and that the signature of that person on the transaction document matched the signature [***21] on the age of majority card.

   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 of attempted entry, and not a point of actual entry as Det. Sturgeon testified, the [*16] 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 present and at least aiding and abetting the daytime housebreaking and robbery.

   To test whether Colvin-El's claim of ineffective representation can satisfy Strickland's prejudice requirement with respect to the guilty verdict, we shall assume, arguendo, that effective representation probably would have caused the jury to conclude that one or more persons, in addition to Colvin-El, also participated in the housebreaking and robbery and that effective representation probably would have caused the jury reasonably to doubt whether Colvin-El was the actual wielder of the knife.  On that assumption, Colvin-El is [***22] nevertheless guilty of murder in the first degree.  Under § 30(b) "[a]ny person, his aiders, abettors and counsellors, who shall be convicted of the crime of breaking a dwelling house in the daytime with intent . . . to steal, take or carry away the personal goods of another of any value therefrom, shall be guilty of a felony. . . ."£ Under § 410 "[a]ll murder which [is] committed in the perpetration of, or attempt to perpetrate, any . . . robbery . . . or daytime housebreaking as defined in § 30(b)" is murder in the first degree.  Even if a co-felon stabbed Mrs. Buchman, Colvin-El committed murder in the first degree at least as an accomplice or principal in the second degree.  See Stevens v. State, 232 Md. 33, 192 A.2d 73, cert. denied, 375 U.S. 886, 84 S.Ct. 160, 11 L.Ed.2d 115 (1963); Boblit v. State, 220 Md. 454, 154 A.2d 434 (1959), second appeal dismissed sub nom. Brady v. State, 222 Md. 442, 160 A.2d 912 (1960); Shockley v. State, 218 Md. 491, 148 A.2d 371 (1959). Therefore, there is no prejudice in the verdict [***23] of guilty based on the claimed ineffective representation.

   Any prejudice from the claimed ineffectiveness was necessarily limited to the sentencing phase of the original trial.  This prejudice, if any, is cured by vacating the death [*17] sentence and remanding for a new sentencing proceeding which we mandate for the reasons explained in part III hereof.  The fact that the jury at the original trial based its verdict of guilty of murder in the first degree on premeditation, as well as on felony murder, does not result in any prejudice which is not cured by the new sentencing hearing. This is because the finding of premeditation is immaterial in the context [**514] of the new sentencing hearing. The original finding of premeditation was for the information of the judge at the original trial for use in sentencing on the underlying felonies of which Colvin-El was found guilty.  The purpose of having the jury answer a special interrogatory defining whether a verdict of guilty of murder in the first degree is based on premeditation, felony murder or both is to avoid the improper sentencing which would occur if the jury based its verdict only on felony murder and the judge were to impose a [***24] sentence for the merged felony in addition to a court or jury imposed sentence for the first degree murder. See State v. Frye, 283 Md. 709, 393 A.2d 1372 (1978), aff'g Frye v. State, 37 Md.App. 476, 378 A.2d 155 (1977). n4

n4 In the instant case, after the jury imposed the death sentence, the judge did not sentence on the underlying felonies.  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), we held that the effect of a somewhat similar disposition was to suspend sentence generally on the convictions as to which no specific sentence was imposed.

   The prejudice claimed by Colvin-El does substantially affect whether Colvin-El was a principal in the first degree.  That is, however, an issue which will be decided at the new sentencing hearing. See Maryland Rule 4-343(e), "FINDINGS AND SENTENCING DETERMINATION" [***25] form, Section 1, Question 1. n5£ Whether Colvin-El stabbed Mrs. [*18] Buchman to death will be decided by the sentencing authority on the basis of the record made at the new sentencing hearing. See Tichnell v. State, 290 Md. 43, 63, 427 A.2d 991, 1001 (1981) (Tichnell II).  In Colvin-El I, we sustained the sufficiency of the evidence of premeditation based upon the multiple stab wounds and the evidence that the murderer carried the knife from the kitchen to the foot of the upstairs stairway where, based on the amount of blood, the stabbing occurred.  Colvin-El I, 299 Md. at 107-10, 472 A.2d at 962-64. This same evidence will be available to the State as a basis for arguing at the new sentencing that Colvin-El was the principal in the first degree.  But the State may not present the finding by the original jury to a new jury on resentencing.  If resentencing by a judge is [*19]elected, then the judge may not consider the prior finding of premeditation as tending to show that Colvin-El was a principal in the first degree.  To do so would defeat the remedial purpose of a new sentencing hearing at which the [***26] determination of sentencing issues is to be based solely on facts presented at that [**515] hearing.  Of course, if on the record as a whole at a new sentencing hearing the fact finder could conclude that Colvin-El carried the knife from the kitchen and repeatedly stabbed the victim, the State is free to argue not only that Colvin-El is the principal in the first degree, but also that he acted with premeditation which should be considered in weighing whether the death penalty should be imposed. n6

n5 Under Rule 4-343 the first question which the sentencing authority answers at a sentencing proceeding is whether "[t]he defendant was a principal in the first degree to the murder."£ This special interrogatory was added to the capital cases sentencing form as part of the revisions of Rule 4-343 which were unanimously adopted by this Court on July 27, 1987 and which became effective August 17, 1987.

   Without any mention of Rule 4-343 the dissenting opinion concludes that the principal in the first degree issue must be determined during the guilt or innocence phase "under the clear language of the statutory mandate."£ The dissent's "statutory mandate" is based on an interpretation of subsections 413(a) and (e) of Art. 27.  Under subsection (a) "[i]f a person is found guilty of murder in the first degree . . . a separate sentencing proceeding shall be conducted . . . to determine whether he shall be sentenced to death."£ Under subsection (e)(1) "person" includes "only a principal in the first degree" when used in § 413 "unless a contrary meaning is clearly intended from the context in which the term appears[.]"£ The dissent concludes that there is no authorization for any sentencing proceeding unless the finding of principal in the first degree has previously been made during the guilt or innocence phase of the trial.

   One premise underlying our above-quoted amendment to Rule 4-343 is that "person" was not intended to be limited, in the context of § 413(a), to one previously found to be a principal in the first degree.  This conclusion may be illustrated by an example.  Assume a murder during the course of an armed robbery committed by two persons.  The defendant's position is that the other robber is in fact the principal in the first degree to murder. There is, however, circumstantial evidence legally sufficient to support a finding that the defendant is a principal in the first degree to murder. If the first degree principal issue must be determined exclusively at the guilt or innocence phase, the robber who claims to be only an aider and abettor in the murder is compelled at that phase to admit participation in the robbery and murder in order to attempt to avoid the death penalty by testifying that the co-principal was the actual killer.  The serious constitutional questions presented by that procedure are avoided by the broader interpretation of "person" in the context of § 413(a) which underlines Rule 4-343.

[***27] 

n6 If, contrary to the facts here, the jury had been asked to specify if the murder was premeditated and the jury had found that it was not, but had found murder in the first degree based only on felony murder, we have grave reservations under principles of double jeopardy or estoppel whether the State would be free to argue premeditation at a new capital sentencing hearing.

   Consequently, any prejudice to Colvin-El resulting from Payne's lack of utilization of information concerning the presence of strangers in the neighborhood during the time when the crime might have occurred, and concerning the movement of the Hayes's bicycle, affects only the issue of whether Colvin-El was a principal in the first degree.  Our mandate on this appeal ordering a new sentencing hearing cures this problem.

   II

   The remainder of Colvin-El's cornucopia of points which go to guilt or innocence can be succinctly addressed.

   A

   At the time of the Buchman murder § 413(d)(10) did not include as capital murder a murder committed while committing or attempting to commit daytime housebreaking, but it did include murder while [***28] committing or attempting to commit robbery. Colvin-El claims ineffectiveness [*20] with respect to the jury instruction on robbery. The claim is not that the instruction as given was incorrect, but that Payne should have obtained additional instructions which would have permitted the jury to find that there was no robbery. One of Colvin-El's robbery theories is that, because the jewelry and other property were taken from the master bedroom and because the stabbing occurred at the foot of the stairs, the taking did not occur in Mrs. Buchman's presence.  This is not the law.  Robbery convictions have been sustained where the victim was in one room of a house or place of business and the property was taken from another room.  See State v. Campbell, 41 Del. 342, 22 A.2d 390 (Del.Ct.Gen.Sessions 1941); State v. Calhoun, 72 Iowa 432, 34 N.W. 194 (1887); Commonwealth v. Homer, 235 Mass. 526, 127 N.E. 517 (1920); State v. Williams, 183 S.W. 308 (Mo.1916); State v. Culver, 109 N.J.Super. 108, 262 A.2d 422 (App.Div.1970); State v. Cottone, 52 N.J.Super. 316, 145 A.2d 509 (App.Div.1958); [***29] State v. Mosley, 102 Wis.2d 636, 307 N.W.2d 200 (1981). Indeed, convictions have been sustained where the victim was in a building and personalty kept outside the building was taken.  See Cobern v. State, 273 Ala. 547, 142 So.2d 869 (1962); State v. Hayes, 518 S.W.2d 40 (Mo.1975). Further, and contrary to another of Colvin-El's arguments, Colvin-El can be convicted of robbery even though Mrs. Buchman was not the owner of the jewelry. We agree with State v. Cottone, 52 N.J.Super. at 323, 145 A.2d at 513 where the court said that a maid, who was the sole occupant of the home, "was in charge of everything contained therein against anyone except the [owners]."£ Payne was not deficient in failing to obtain instructions to which Colvin-El was not entitled.

   B

   Colvin-El contends that Payne should have objected when the State asked Mrs. Sorrell if her mother had been in the "habit" of carrying money in her wallet. The witness replied affirmatively.  This is said to be inadmissible evidence of habit.  We do not agree that this is even habit [*21] evidence.  The proof was [***30] that Mrs. Buchman had arrived that day from Florida, that she intended to stay in Baltimore for one week and then to go to the Midwest to visit her son before returning to Florida.  The wallet in question had an exterior change purse which could be snapped closed.  After the murder the wallet was found in an unzippered, opened hand or [**516] shoulder bag, with no currency in the billfold part of the wallet and with the change purse unsnapped, opened, and empty.  It was permissible for the jury to infer based on common experience, and independently of any habit of the victim, that Mrs. Buchman would not travel for the times and distances shown by the evidence without carrying some money.  The jury could also infer that a woman who carries a handbag containing a wallet, as did Mrs. Buchman, usually keeps her money in the wallet and change purse.  Had Payne made any objection, it should not have been sustained. n7

n7 The relevance of this argument by Colvin-El is unclear since the State did not charge Colvin-El with robbery by taking money belonging to Mrs. Buchman.

[***31]

   C

   Colvin-El further contends that Payne should have objected to testimony from Mrs. Sorrell which described her mother's background and general good health. The testimony condensed eighty-two years of Mrs. Buchman's life into approximately two and one-half pages of double spaced, typewritten testimony on wide margin pages.  The State is permitted to have the victim briefly and nonprejudicially described and we see no prejudice in Mrs. Sorrell's testimony. It is comparable to that approved in Grandison v. State, 305 Md. 685, 728, 506 A.2d 580, 601, cert. denied, 479 U.S. 873, 107 S.Ct. 38, 93 L.Ed.2d 174 (1986).

   Further, Payne testified on post conviction not only that he did not consider the testimony prejudicial but also that he considered it would have been prejudicial to have objected.  The trial court found counsel's decision to be [*22]within the bounds of trial strategy.  We agree.  Counsel could understandably expect that the jury would resent objections designed to keep them from knowing some basic information about the person who had been murdered. 

   Colvin-El is wide of the mark in arguing that [***32] the testimony violates the proscription of victim impact statements under Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). The testimony here did not attempt to describe the effect of the murder on Mrs. Buchman's family.  For the same reasons, the absence of objection to the State's reference to the victim's personal history in its opening statement, to Ms. Susan Sorrell's reference to aspects of her grandmother's background, and to the introduction of a photograph of Mrs. Buchman taken during her lifetime and depicting her head and shoulders, do not demonstrate ineffectiveness of counsel.

   D

   On direct appeal in this case we concluded that Colvin-El had failed to make a prima facie case of systematic racial discrimination in his challenge to the jury array.  That challenge was presented for the first time on direct appeal based upon data appended to Colvin-El's brief.  We considered the argument on the merits and conducted an independent constitutional review.  Colvin-El I, 299 Md. at 103-07, 472 A.2d at 960-62. Now, on post conviction, Colvin-El has utilized substantially the same data [***33] to present the same argument disguised as ineffectiveness of counsel.  Payne could not have been deficient by not making an argument which we have held has no merit.

   E

   When submitting guilt or innocence to the jury, the trial court instructed that art. 23 of the Maryland Declaration of Rights made the jury the judge of the law, and that as a result the court's instructions were advisory only and not binding.  In conformance with Stevenson v. State, 289 Md. 167, [*23] 423 A.2d 558 (1980), however, the court went on to instruct that the jury was to perform its role as judge of the law only where there was a suggested conflict. Further, the court instructed that on the constitutional precepts such as burden of proof and need for unanimity, its instructions were binding and could not be disregarded.  Colvin-El, citing Giaccio v. Pennsylvania, 382 U.S. 399, 403, 86 S.Ct. 518, 521, 15 L.Ed.2d 447, 450 (1966) contends [**517] that he was thereby deprived of due process because he was not tried in accordance with the law of the land and because the instruction was confusing.  He also criticizes the reasonable doubt instruction. [***34]

   There were no exceptions taken to these instructions.  On direct appeal when Colvin-El was represented by new counsel, the points were not presented.  Under Md. Code (1957, 1987 Repl.Vol.), Art. 27, § 645A(c), part of the Post Conviction Procedure Act, failure to make the allegations is presumed to have been done intelligently and knowingly.  Nothing is presented here to rebut the presumption.

   To the extent that Colvin-El rests his ineffectiveness of counsel argument on the absence of any exceptions to these instructions, we find neither deficient representation nor prejudice in light of the instructions, taken as a whole.

   F

    Colvin-El's remaining submission on guilt or innocence is that, if none of his above arguments clear the Strickland hurdles of ineffectiveness and prejudice, then this Court should depart from Strickland and establish a Maryland test of ineffectiveness utilizing the provision of art. 21 of the Declaration of Rights "[t]hat in all criminal prosecutions, every man hath a right . . . to be allowed counsel.  . . ."

   A contention similar to that made by Colvin-El was presented in Lodowski v. State, 307 Md. 233, 513 A.2d 299 (1986). [***35] Lodowski was a remand by the Supreme Court for reconsideration in light of Moran v. Burbine, 475 U.S. 412, [*24] 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). In Burbine, the Court, applying the sixth amendment to the United States Constitution, held that the right to counsel of an arrestee who had not personally requested counsel was not violated by the failure of the police to advise the arrestee that counsel provided by the arrestee's family was present in the building where the arrestee was being interrogated.  Lodowski argued that we should hold under art. 21 of the Maryland Declaration of Rights that there was a denial of the right to counsel under facts similar to those in Burbine.  That argument was rejected.
 
We stated flatly in State v. Tichnell, 306 Md. 428, 440, 509 A.2d 1179 (1986): "There is no distinction between the right to counsel guaranteed by the Sixth Amendment [of the U.S. Constitution] and Article 21 of the Maryland Declaration of Rights. . . ."£ We again set out this view in Clark v. State, 306 Md. 483, 487, 510 A.2d 243 (1986). Accordingly, [***36] with regard to the allowance of counsel provision of Article 21 of the Declaration of Rights, we adhere to the construction the Supreme Court has placed on the like provision of the Sixth Amendment.  [307 Md. at 247, 513 A.2d at 307.]
 
Tichnell, relied upon in Lodowski, applied the Strickland standards in holding that there was no ineffectiveness of counsel in that death sentence case.  Thus, the matter is settled.  The standards established in Strickland apply to claims of ineffective assistance of counsel under art. 21.

   III

   We now turn to the issues affecting only the death sentence.

   A

   In Mills v. Maryland,    U.S.   , 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), the Supreme Court held that the potential for uncertainty in a jury's interpretation of the sentencing form for capital cases specified by former Rule 772A violated the eighth amendment's prohibition against [*25] cruel and unusual punishments.  The jury which sentenced Colvin-El to death was instructed to utilize, and did utilize, an identical form.  Colvin-El's jury found one aggravating circumstance, murder committed while committing robbery, [***37] and found no mitigating circumstances.  As instructed by the form, the jury did not complete part III where aggravating and mitigating circumstances would be weighed if the jury had found at least one mitigating circumstance.  In this respect Colvin-El's case is indistinguishable from Mills.

   [**518] Under § 645A(d) of the Maryland Post Conviction Procedure Act, Colvin-El is entitled to the benefit of any Supreme Court decision holding that the United States Constitution "imposes upon State criminal proceedings a procedural or substantive standard not theretofore recognized, which . . . is intended to be applied retrospectively and would thereby affect the validity of the petitioner's conviction or sentence."£ The Mills analysis affects "the very integrity of the fact-finding process" with respect to finding an absence of mitigating factors.  Therefore Mills applies retrospectively.  See Linkletter v. Walker, 381 U.S. 618, 639, 85 S.Ct. 1731, 1743, 14 L.Ed.2d 601, 614 (1965). Consequently, Colvin-El's death sentence must be vacated.

   B

   Vacating Colvin-El's death sentence is also required for the reasons stated by the circuit court on post [***38] conviction review.  At the sentencing hearing the State introduced records of the former Criminal Court of Baltimore reflecting Colvin-El's convictions in 1960 for six burglaries and a conviction in 1962 of a seventh burglary.  Concurrent sentences to the State Reformatory for Males for two years were imposed for the 1960 burglaries.  The 1962 offense resulted in an additional two year sentence. At the time of his arrest for these offenses Colvin-El was between sixteen and eighteen years of age.  At that time, had Colvin-El been arrested and proceeded against outside of Baltimore City, the proceedings would have been under [*26] the Juvenile Causes statute, Md.Code (1957), Art. 26, § 51 et seq.

   Long v. Robinson, 316 F.Supp. 22 (D.Md.1970), aff'd, 436 F.2d 1116 (4th Cir.1971) held that this difference in procedure violated the equal protection rights of sixteen and seventeen year old arrestees in Baltimore City whose convictions were not yet final.  In Wiggins v. State, 275 Md. 689, 344 A.2d 80 (1975), we held that Long was not retroactive so that Wiggins, whose conviction as an adult in Baltimore City [***39] was final when Long was decided, was not entitled to a declaratory judgment nullifying his conviction.  But in Raiford v. State, 296 Md. 289, 462 A.2d 1192 (1983), we held that the State violated equal protection by using convictions, obtained under the procedure invalidated by Long, in order to demonstrate predicate crimes under a sentence enhancing statute.

   Here the State argues that Wiggins applies, that the 1960 and 1962 convictions of Colvin-El are not nullified by Long and that the fact of criminal conduct evidenced by those convictions is in no way undermined.  The operative principle is, however, equal protection and not due process.  The State made a present use of the prior convictions when it introduced them against Colvin-El at the capital sentencing proceeding and it introduced those convictions as convictions of an adult in the Criminal Court of Baltimore.  If another person being sentenced for capital murder had committed the same acts, during the same period, and at the same age as Colvin-El, but outside of Baltimore City and absent a waiver of juvenile jurisdiction, that person's prior record would reflect, at most, [***40] findings of juvenile delinquency.  The particular jurisdiction within Maryland in which the offense was committed is not a rational basis for this distinction in the present use of the records.  We agree with the circuit court's conclusion that equal protection was violated by the admission of Colvin-El's "adult" convictions.  We cannot say that the error was harmless beyond a reasonable doubt.  See Dorsey v. State, 276 Md. 638, 350 A.2d 665 (1976).

   [*27] IV

    Of the remaining points presented by Colvin-El some will not necessarily arise again at a new sentencing hearing and are moot.  The other points are challenges to the constitutionality of Maryland's death penalty statute which we have previously rejected and which have been presented to preserve the points for possible future consideration by other courts.

   JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED.

DISSENTBY: BLACKWELL

DISSENT: [**519] BLACKWELL, Judge, dissenting.

   Maryland Code (1957, 1976 Repl.Vol., 1981 Cum.Supp.), Art. 27, § 413(e)(1) requires that a defendant be guilty of murder in the first degree as a principal in the first degree to be subject to death penalty sentencing proceedings. n1£ To [***41] be guilty as a principal in the first degree means to have been found guilty of doing the physical act causing death, such as pulling the trigger of a gun, or wielding of a knife used in stabbing.  It is not enough that a defendant be guilty of murder in the first degree as an "aider or abettor" of a co-defendant.

n1 Maryland Code (1957, 1976 Repl.Vol., 1981 Cum.Supp.), Art. 27, § 413(d)(7) sets forth an exception to the principal in the first degree qualification: "The defendant engaged or employed another person to commit the murder and the murder was committed pursuant to an agreement or contract for remuneration or the promise of remuneration."

   The majority concludes the issue of principal in the first degree can be decided during the sentencing proceeding in the second trial.  I conclude under the clear language of the statutory mandate, it must be determined during the guilt innocence phase of a death penalty trial, otherwise a "person" or "defendant" does not qualify under the definitions section of 413(e)(1). [***42]Section 413(a) provides:
 
[*28] Separate sentencing proceeding required.

   If a person is found guilty of murder in the first degree, and if the state had given the notice required under § 412(b), a separate sentencing proceeding shall be conducted as soon as practicable after the trial has been completed to determine whether he shall be sentenced to death.
 
Section 413(e) provides in pertinent part:
 
Definitions.  -- As used in this section, the following terms have the meanings indicated unless a contrary meaning is clearly intended from the context in which the terms appears:

   (1) The terms "defendant" and "person", . . . include only a principal in the first degree."£ (Emphasis added).

   Stated in other terms, a person or defendant is not subject to a separate death penalty sentencing proceeding directed by Article 27, § 413(a) unless he (or she) is determined to be a principal in the first degree.  That determination must be made prior to the death penalty sentencing proceeding, otherwise no proceeding is authorized by the statute.  The requirement of the definition section would not have been met.

   The missing ingredient cannot be later supplied during a [***43] sentencing proceeding by a jury that is considering evidence which would not have been admissible at trial.  Md. Code (1957, 1976 Repl.Vol., 1981 Cum.Supp.), Art. 27, § 413(c).  An impartial decision would be unlikely where the panel is confronted with evidence of a prior record, hearsay, or any other information that the court deems probative and relevant to sentencing.

   I therefore respectfully dissent from the conclusion that defendant's participation as a principal in the first degree can be determined for the first time during a new sentencing proceeding. I would remand for a new trial. 

STATE of Maryland v. Gary Ray GARLICK 
No. 159, September Term, 1987
 
Court of Appeals of Maryland
 
313 Md. 209; 545 A.2d 27; 1988 Md. LEXIS 98

 August  2, 1988

   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 AND CASE REMANDED TO THAT COURT WITH DIRECTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY.  RESPONDENT TO PAY THE COSTS.

CORE TERMS:  patient, technician, admissible, hospital record, pathologically, germane, blood, confrontation, reliability, regular course of business, business records, hearsay rule, producing, laboratory, reliable, hearsay, emergency services, inadmissible, neck, model act, trustworthiness, declarant, recorded, observe, chart, business record, emergency room, admissibility, screen, doctor

COUNSEL: Ann E. Singleton, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, both on brief), both of Baltimore, Maryland, for appellant.

   Mark Colvin, Assistant Public Defender (Alan H. Murrell, Public Defender, both on brief), both of Baltimore, Maryland, for appellee.

JUDGES: Murphy, C.J., and Eldridge, Cole, Rodowsky, McAuliffe, Adkins and Blackwell, JJ.

OPINIONBY: ADKINS

OPINION: [*211] [**28] We revisit today a question we addressed four years ago in Moon v. State, 300 Md. 354, 478 A.2d 695 (1984), cert. denied, 469 U.S. 1207, 105 S.Ct. 1170, 84 L.Ed.2d 321 (1985): Is the constitutional right of confrontation violated by the admission into evidence of a hospital record containing laboratory test results unless the technician who conducted the test is produced as a witness?  In Moon, we answered the question in the affirmative. [***2] We do not retreat from our holding in Moon, but because of substantial differences between the record in that case and this, we here respond to the question in the negative.

   Factual Background

    In the pre-dawn hours of 16 June 1985, a toll collector at the Chesapeake Bay Bridge near Annapolis was giving change to an eastbound motor vehicle.  At that same time a second vehicle, driven by respondent Gary Ray Garlick (Garlick), traveling east on U.S. 50 at a high rate of speed, swerved from one lane to another and ran into the rear of the car stopped at the toll plaza.  The force of the collision propelled both cars through the toll booth.  Within minutes a Maryland Toll Facilities police officer arrived on the scene.  He noted that Garlick was "extremely incoherent" and had "great difficulty" producing requested identification papers.  Garlick's girlfriend stated her companion had [*212] been drinking earlier in the evening and taking valium and that they "would find out that he was taking other things or involved in other things."£ Garlick was placed under arrest.  He was charged with (1) failure to reduce speed to avoid an accident (Md. Code (1987 Repl. Vol.), § 21-801(b) [***3] of the Transportation Article); (2) failure to stop and render aid (§ 20-102); and (3) driving or attempting to drive while under the influence of a controlled dangerous substance (§ 21-902).

   The police officer took Garlick to the Anne Arundel General Hospital where he refused treatment, but consented to a blood test.  The test showed no alcohol in his blood. Garlick was then transported to the Anne Arundel County Detention Center which refused to accept custody without a hospital release because a bump had arisen on Garlick's head.  Garlick was returned to the hospital where he then agreed to treatment.

   In the emergency room, Dr. Joel R. Buchanan, Jr., a board certified emergency room physician, examined Garlick and found him to have a swollen nose and forehead, with tenderness at the base of his neck. Garlick acted slightly lethargic, his speech was slurred, and his coordination was poor.  To find out why Garlick's neurologic examination was not normal, Dr. Buchanan ordered a toxicological screen of his blood and urine.  The doctor also ordered x-rays of Garlick's neck and skull and a CAT (computerized axial tomography) scan of his head and neck. The test results indicated that [***4] Garlick had a fracture at the base of his neck, his head scan was totally normal, but his blood screen showed the presence of phencyclidine (PCP).

   On 25 November 1986 Garlick was tried in the Circuit Court for Anne Arundel County (Lerner, J.) on the three charges previously noted.  Months before trial, he had been given a copy of the emergency services report, which included a notation of the positive PCP laboratory result.  He did not receive, however, a supplementary laboratory technician's report until the day of trial.  At trial the hospital technician was not present, and the technician's report was [*213]suppressed.  Dr. Buchanan did appear as a witness and the emergency services report, including the test results, was admitted into evidence.

   Although at first agreeing that "[i]f that report was admissible under a business record exception, it should come in," Garlick objected later to the admission of the emergency room report.  It had references to the results of the hospital laboratory tests, which he considered inadmissible, [**29] since the technician was not present and the laboratory report was not admitted.  His objections were overruled.  The court acquitted Garlick of [***5] the charge of failing to stop and render aid but found him guilty of driving while under the influence of a controlled dangerous substance and of failure to reduce speed to avoid an accident.  He was sentenced to 60 days and fined $300.

    The Court of Special Appeals held it was error to admit evidence showing the result of the toxic screen test and reversed Garlick's conviction.  Garlick v. State, No. 12, Sept. Term, 1987 (filed 23 September 1987) (unreported).  We granted the State's petition for a writ of certiorari to consider the important question presented.  311 Md. 445, 535 A.2d 921 (1988).

   I. Confrontation

   Article 21 of the Maryland Declaration of Rights provides that "in all criminal prosecutions, every man hath a right . . . to be confronted with the witnesses against him . . . ."£ In a similar vein, the sixth amendment to the United States Constitution declares that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ." n1£ Garlick argues that admitting the hospital record without producing the hospital technician as a witness violated these rights of confrontation. [***6] We disagree.

n1 The sixth amendment is made applicable to the states via the fourteenth amendment.  Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).

   [*214] We have identified "the concept of confrontation as a device to advance the search for truth."£ Wildermuth v. State, 310 Md. 496, 510, 530 A.2d 275, 282 (1987). And the Supreme Court has said that confrontation "(1) insures that the witness will give his statements under oath . . .; (2) forces the witness to submit to cross-examination, the 'greatest legal engine ever invented for the discovery of truth'; [and] (3) permits the jury that is to decide the defendant's fate to observe the demeanor of the witness making his statement . . . ."£ Lee v. Illinois, 476 U.S. 530, 540, 106 S.Ct. 2056, 2062, 90 L.Ed.2d 514, 526 (1986) (quoting California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489, 497 (1970)). [***7] But as we pointed out in Wildermuth, "our predecessors permitted the use of certain documentary evidence at trial."£ 310 Md. at 512, 530 A.2d at 283 (citing Johns v. State, 55 Md. 350 (1881)). The Supreme Court also has said
the privilege of confrontation [has not] at any time been without recognized exceptions, as for instance dying declarations or documentary evidence . . . . The exceptions are not even static, but may be enlarged from time to time if there is no material departure from the reason of the general rule.
Snyder v. Massachusetts, 291 U.S. 97, 107, 54 S.Ct. 330, 333, 78 L.Ed. 674, 679 (1934) [citations omitted].

   In Moon v. State, Judge Cole, for the Court, conducted a comprehensive review of Maryland and Supreme Court interpretations of the confrontation right vis-a-vis the hearsay rule. That examination yielded this conclusion:
[t]he Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay . . .  [W]hen a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires [***8]a showing that he is unavailable.  Even then, his statement is admissible only if it bears adequate "indicia of reliability."
Moon, 300 Md. at 367-368, 478 A.2d at 701-702 (quoting Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 2538-2539, [*215] 65 L.Ed.2d 597, 607-608 (1980)). Nevertheless, there are certain types of evidence that are "so intrinsically reliable that requiring production of the declarant may be difficult, if not pointless."£ Moon, 300 Md. at 365, 478 A.2d at 701 (citing e.g., business records, and Dutton v. Evans, 400 U.S. 74, 95-96, 91 S.Ct. 210, 223, 27 L.Ed.2d 213, 231 (1970) (Harlan, J., concurring) ("production would be unduly inconvenient and of small utility to a defendant")).  Judge Cole pointed to circumstances
 
where the courts have found no confrontation violation because the evidence to be offered is clothed with substantial indicia [**30] of reliability. Such evidence is admitted without the declarant's testimony when producing the witness would likely prove unavailing or pointless.  Business [***9] and hospital records fall within this category and generally the hearsay exception which allows their admission is expressed by statutory enactment. n[2]
 
Moon, 300 Md. at 369, 478 A.2d at 702-703.

n2 See Bourjaily v. United States,    U.S.   , 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987) (co-conspirator exception to hearsay rule is so firmly rooted in jurisprudence that no independent inquiry into reliability is necessary when considering confrontation claim, even though co-conspirator is not available for trial.)£ See also United States v. Inadi, 475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986).

   In Moon, however, we did not apply the rule permitting the admission of very reliable hearsay evidence without the testimony of the declarant. But the record in Moon manifested serious indicia of unreliability of the test.  These indicia included a three-day lag between the date on which the blood sample was taken [***10]and the date on which it was analyzed; the absence of Moon's name on the report; and the fact that the tests were conducted after the treatment for which they were requested had been performed.  Id. at 371-372, 478 A.2d at 703-704.  Under these circumstances, we held that the testimony of the technician (the declarant), who was present, in court would be "neither frivolous nor pointless."£ Id. at 370-371, 478 A.2d at 703.  As a consequence, [*216]we held the report inadmissible absent testimony of the technician.

   This case, on the other hand, involves the business records exception to the hearsay rule. Md. Code (1987 Repl. Vol.), § 10-101 of the Courts and Judicial Proceedings Article.  As we shall now demonstrate, that statutory exception is solidly grounded on concepts of reliability. Moreover, nothing in the record now before us raises substantial questions about the reliability of the tests performed in connection with Garlick's emergency room treatment. n3

n3 It appears that the test performed in this case was the enzyme multiple immunassay technique (E.M.I.T.).  In his brief, Garlick attempts to attack the reliability of this test, but having totally failed to raise this issue in the trial court, he cannot do so now.  Md.Rule 885.

[***11]

   II. Hospital Records Admissibility

   The business records exception to the rule against hearsay, under which hospital records are included, "properly administered . . . would seem to be among the safest of the hearsay exceptions."£ Ohio v. Roberts, 448 U.S. 56, 66 n. 8, 100 S.Ct. 2531, 2539 n. 8, 65 L.Ed.2d 597, 608 n. 8 (1980) (quoting Comment, "Hearsay, The Confrontation Guarantee and Related Problems," 30 La.L.Rev. 651, 668 (1970)). See also United States v. Leathers, 135 F.2d 507, 511 (2d Cir.1943) ("We think that business records kept as a matter of ordinary routine are often likely to be more reliable than dying declarations"). n4

n4 Dying declarations have long been an exception to the hearsay rule, existing even before the confrontation provisions were included in the Bill of Rights.  See, Kirby v. United States, 174 U.S. 47, 61, 19 S.Ct. 574, 579, 43 L.Ed. 890, 896 (1899); Mattox v. United States, 156 U.S. 237, 243, 15 S.Ct. 337, 340, 39 L.Ed. 409, 411 (1895); and McCormick on Evidence § 252 (E. Cleary 3d ed. 1984).

[***12]

   This exception was derived from the common law "shop book" rule.  McCormick on Evidence § 305 (E. Cleary 3d ed. 1984) (hereinafter McCormick).  See also, Powell, "Admissibility of Hospital Records into Evidence," 21 Md.L.Rev. 22, 30 (1961) (hereinafter Powell).  Maryland has recognized [*217] the derivation of the business records exception and its coverage of hospital records.

   An early case admitting hospital records, even without producing as a witness the person with knowledge of the entries, was Globe Indemnity Co. v. Reinhart, 152 Md. 439, 137 A. 43 (1927). In Globe, the Court analyzed the general rule applicable to a book of account, stated in Cohen v. Bogatzky, 149 Md. 134, 131 A. 31 (1925). The Court found that the hearsay exception was grounded on the "circumstantial guarantee of trustworthiness of the record itself, and upon the inconvenience and well-nigh impossibility of producing witnesses who could from their own personal knowledge testify to the truth of the entries [**31] made."£ Globe, 152 Md. at 446, 137 A. at 45. The Court concluded that the [***13]evidence represented by a hospital chart contained a sufficient guarantee of its truthfulness.  Our predecessors went on to say:
[the hospital chart] is a record required by the hospital authorities to be made by one whose duty it is to correctly make the entries therein contained.  So far as the hospital is concerned, there could be no more important record than the chart which indicates the diagnosis, the condition, and treatment of the patients. This record is one of the important advantages incident to hospital treatment, for it not only records for the use of the physician or surgeon what he himself observes during the time he is with the patient, but also records at short intervals the symptoms, condition, and treatment of the patient during the whole time of the physician's absence.  Upon this record the physician depends in large measure to indicate and guide him in the treatment of any given case. Long experience has shown that the physician is fully warranted in depending upon the reliability and trustworthiness of such a record.  It is difficult to conceive why this record should not be reliable. There is no motive for the person, whose duty it is to make the entries, [***14] to do other than record them correctly and accurately.  On the other hand, there is the strongest reason why he should: First, [*218] because of the great responsibility, he knowing that the treatment of the patient depends largely upon this record, and if it be incorrect it may result, and probably will result, in the patient's failure to receive proper surgical or medical treatment, which failure might be followed by serious consequences or even death.  Second, the entrant must realize and appreciate that his position is dependent upon the accuracy with which the record is made.  Third, as was stated by Tindall, C.J., in Poole v. Dicas, 1 Bing. [(N.C.) 649, 653, 131 Eng.Rep. 1267, 1269 (1835)]:
"[I]t is easier to state what is true than what is false; the process of invention implies trouble[,] in such a case unnecessarily incurred."
 
Globe, 152 Md. at 446-447, 137 A. at 46.

   That basic attitude towards hospital records and business records in general has never really changed.  With applications of the older law, however, a mass of "detailed petty limitations" and technicalities had gradually developed. [***15]5 J. Wigmore, Evidence § 1561a (Chadbourn rev. ed. 1974) (hereinafter 5 Wigmore).  Therefore, in order to enlarge the scope of the "shop book" rule and liberalize the rules for "business records of composite authorship," modern statutes were enacted.  These statutes were for the most part based on a model act for Proof of Business Transactions (Model Act), published in 1927 by a committee of experts appointed by the Commonwealth Fund of New York, n5 or on the Uniform Act on Business Records recommended by the Committee on Evidence Acts and approved in 1936 by the National Conference of Commissioners on Uniform State Laws.  See 5 Wigmore, § 1561a; and Powell, supra, 21 Md.L.Rev. at 31-33.

n5 E. Morgan, Chairman, The Law of Evidence: Some Proposals for Its Reform, Ch. 5 at 63 (1927) (cited in Hoffman v. Palmer, 129 F.2d 976, 984-986 (2d Cir.1942), aff'd, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943), and 5 J. Wigmore, Evidence § 1561a (Chadbourn rev. ed. 1974)).

[***16]

   [*219] In 1929 Maryland became one of the first states to adopt the broader-languaged Model Act as § 54A of Article 35. n6£ Chapter 517 of the Acts of 1929.  Also see, Beth. Shipyard v. Scherpenisse, 187 Md. 375, 380-381, 50 A.2d 256, 259-260 (1946), and 6 L. McLain, Maryland Practice: Maryland Evidence § 803 (6).1, at 376-377 (1987) (hereinafter 6 McLain).  The current substantively unchanged version is codified as Md.Code (1984 Repl.Vol.), § 10-101 of the Courts and Judicial Proceedings Article.  It reads:

   [**32] (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 [***17] of the evidence but not its admissibility.

n6 The United States Congress also used the Model Act as a model for its federal business records act, Act of 20 June 1936, Ch. 640, § 1, 49 Stat. 1561 (codified at 28 U.S.C. § 695 (1940), current revised version at 28 U.S.C. § 1732 (1982)).  See also Title 28, Appendix -- Rules of Evidence, Rule 803(6) (1982).

   We recognized that "[w]hatever the rule at common law, the statute was clearly intended to liberalize the common law rules on the subject."£ Morrow v. State, 190 Md. 559, 562, 59 A.2d 325, 326 (1948). See also Powell, supra, 21 Md.L.Rev. at 32-33 & n. 47, and Hoffman v. Palmer, 129 F.2d 976, 984-989 (2nd Cir.1942), aff'd, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943). And we applied the statute to hospital records.  For example, the Court in Beth. Shipyard said:

   [*220] Under the broad language of this Act, we find no error in the [***18]admission in evidence of the hospital record in the court below.  The Act applies to every business, profession, occupation and calling of every kind. The Act also provides that all other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect the weight, but not the admissibility thereof.  The purpose of the Act is to put an end to narrowness in the use of the familiar rule of evidence that the person whose statement is received as testimony should speak from personal observation or knowledge, and to bring the rule of evidence nearer to the standards in responsible action outside of the courts.  5 Wigmore on Evidence, 3d Ed., Sec. 1530a.  Therfore, this Court holds that a hospital record containing the history of a patient's case is admissible in evidence, whether or not the statements therein were made by the patient himself.
 
187 Md. at 381, 50 A.2d at 260. See also Dietz v. Moore, 277 Md. 1, 7, 351 A.2d 428, 432 (1976); Dunn v. State, 226 Md. 463, 478, 174 A.2d 185, 192 (1961); Yellow Cab Co. v. Hicks, 224 Md. 563, 570, 168 A.2d 501, 504 (1961); [***19] and Jones v. State, 205 Md. 528, 531, 109 A.2d 732, 734 (1954). In Jones it was also noted that the statute applied to criminal as well as civil cases and was not unconstitutional under Article 21 of the Maryland Declaration of Rights. Id. at 532, 109 A.2d at 735.

   This is not to say, however, that there have not been some hospital records (or more precisely some entries within those records) that have been objectionable or found to have been inadmissible. For example, in Gregory v. State, 40 Md.App. 297, 325, 391 A.2d 437, 454 (1978), the medical staff conference summary containing the opinions of several psychiatrists was not admissible without their testimony.  The court stated:
The mere fact that a document is part of a hospital record made in the ordinary course of the hospital's business, and may therefore be admissible under the hearsay rule, [*221] does not ipso facto make its admission comply with the confrontation requirement . . . .

   We have here not the routine record of a person's birth, or death, or body temperature, not any other similar statement of fact [***20] or condition objectively ascertained, generally reliable and normally undisputed, and free from any motive to record falsely.  We are dealing with the opinions of supposed expert witnesses, who, in this document, are giving testimony not only as to appellant's mental condition, but, more importantly, as to whether or not he is criminally responsible.
 
Id. at 325-326, 391 A.2d at 454. See also Dietz, 277 Md. at 7, 351 A.2d at 433 ("even though a particular hospital record is not barred from evidence as hearsay, it may be that some or all of its contents are open to objection on other grounds" (citation omitted)); Dunn, 226 Md. at 478, 174 A.2d at [**33] 192 ("specific portions of the record are open to objection under certain circumstances"); and New York Life Ins. Co. v. Taylor, 147 F.2d 297, 304 (1945), opinion on rehearing (the diagnosis of a psychoneurotic state which involved conjecture and opinion was inadmissible).

   Nevertheless, it is fair to say that the general rule developed by the case law supports the admissibility of properly administered hospital records with [***21]the "pathologically germane" entries contained therein, because they are done as part of the hospital's "regular course of business."

   "The words, 'regular course of business' . . . are not colloquial words but are words of art."£ Hoffman v. Palmer, supra, 129 F.2d at 983. So "'regular course' of business must find its meaning in the inherent nature of the business in question and in the methods systematically employed for the conduct of the business as a business."£ Palmer v. Hoffman, 318 U.S. 109, 115, 63 S.Ct. 477, 481, 87 L.Ed. 645, 651 (1943). In a hospital the "regular course of business" is to treat people, that is, to care for patients. New York Life Ins. Co. v. Taylor , 147 F.2d at 301 (Edgerton, J., dissenting in part).  To conduct that business of caring for patients, the making of a hospital record is a [*222] method systematically employed, without which proper care of patients would be impossible.  Id.

   The trustworthiness and reliability of any business record arises from the fact that entries recording an act or event are made in the "regular course of business" and it is the "regular [***22] course of business" to record those entries at the time of that act or event or soon thereafter.  See generally, 6 McLain, supra, § 803(6).1, at 381; McCormick, supra, § 306; and 5 Wigmore, supra, §§ 1522 & 1546.  Also see, New York Life Ins. Co. v. Taylor, supra, 147 F.2d at 307-308 (Edgerton, J., dissenting in part to the opinion on rehearing); and People v. Kirtdoll, 391 Mich. 370, 385-386 & n. 8, 217 N.W.2d 37, 46 & n. 8 (1974). "Ordinarily, hospital records satisfy these criteria and the information they contain is admissible as long as it is pathologically germane."£ Pratt v. State, 39 Md.App. 442, 455, 387 A.2d 779, 787 (1978), aff'd, 284 Md. 516, 398 A.2d 421 (1979). So events that are "pathologically germane" to that treatment are within the regular course of the hospital's business and the recordations of those events are admissible under a business record exception.

   "Pathologically germane" as that term has been defined includes facts helpful to an understanding of the medical or surgical aspects of the case, within the scope of medical inquiry. [***23] "A 'pathologically germane' statement 'must fall within the broad range of facts which under hospital practice are considered relevant to the diagnosis or treatment of the patient's condition.'£ McCormick, Evidence, Ch. 32, § 290."£ Yellow Cab, supra, 224 Md. at 570, 168 A.2d at 504. See also Lee v. Housing Auth. of Baltimore, 203 Md. 453, 460, 101 A.2d 832, 835 (1954) ("the occurrence recorded must be 'pathologically germane to the physical or mental condition which caused the patient to come to the hospital for treatment'" (citation omitted)); Marlow v. Cerino, 19 Md.App. 619, 635, 313 A.2d 505, 514 (1974) ("'pathologically germane' . . . [a]s we construe the term . . . means having significant bearing upon and relation to the disease or injury from which one suffers").

   [*223] Thus, once it is clear that the hospital record was made in "the regular course of business" and the recorded transactions are "pathologically germane to treatment" the record is admissible as an exception to the hearsay rule. See Old v. Cooney Detective Agency, 215 Md. 517, 524-525, 138 A.2d 889, 893 (1958) [***24] ("This Court has gone far in admitting the particulars set forth in the history of a patient in a hospital record"); and Scott v. James Gibbons Co., 192 Md. 319, 330, 64 A.2d 117, 122 (1949) (records of the history of a patient's case or his physical condition were admissible, where history meant the physical background as well as the present condition of the patient). We shall now see how the entry into Garlick's hospital record of his PCP-positive laboratory test result was so "pathologically germane" to treatment that it was completely admissible without the [**34] presence of the laboratory technician as witness.

   III. The Admission of Garlick's Test

   At trial, the court asked whether an attempt had been made to produce as a witness the hospital laboratory technician. The State answered: "We didn't think it was necessary, Your Honor."£ Garlick's counsel replied: "If you read Moon, Your Honor, it is necessary."£ We have already distinguished the facts in Moon from those now before us; we shall see that the State was correct in its response.

   In the emergency room, we recall, Garlick was treated for head and neck injuries and presented abnormal neurologic [***25] symptoms.  Dr. Buchanan testified that he ordered a toxicological screen of Garlick's blood and urine to determine the cause of his symptoms. n7£ He stated: "[T]he summary of my results, including the CT of the head, indicate that the lack of coordination was a . . . what we call a metabolic cause, [*224] meaning something that is throughout the body rather th[a]n at one place in the body, i.e., an intoxication."

n7 Cf. State v. Moon, 291 Md. 463, 466 n. 1, 436 A.2d 420, 421 n. 1 (1981) ("An obvious purpose for the drug test would be for the attending physician to be certain that anything he prescribed would not run counter to that already in his patient's system, just as some pharmacies monitor prescriptions to be certain that the consumer is not using antagonistic drugs").

   Although the doctor did not observe Garlick's blood being taken, did not know which technician performed the tests, did not know when the testing equipment was last checked for proper operation, and did not observe [***26] if standard procedures had been followed, he said he had no reasons to doubt the accuracy of Garlick's test.

   Dr. Buchanan declared "there has never been a mix-up that I know about" involving the technicians at the hospital making "a mistake with regard to examining somebody else's blood."£ He explained that the tests were "extremely scientific," and an expert technician was required to perform them.  He said he relied on the technician to do the test; he received the test results from the hospital laboratory via computer terminal; they were recorded in Garlick's emergency services chart and then relied upon as a basis for the course of treatment and emergency services prescribed for Gary Garlick. n8

n8 Cf., Sarrio v. Reliable Contract. Co., 14 Md.App. 99, 286 A.2d 183 (1972), where the court discussed the entry in the hospital record of an intern's observation of a patient's drunken condition.
 
Patently, the course of treatment to be accorded [the patient] could be influenced or acutely affected by his condition of intoxication.  The notation could only have been intended to alert the treating physicians to a discernible condition of the patient which may not subsequently have been apparent but still could have had harmful residual effects ultimately.  Not to have recorded such an observation would conceivably have constituted a dereliction of duty on the part of the intern.  Certainly, the failure to have made the recordation would have rendered a disservice to the appellant as a patient in the hospital.
Id. at 102, 286 A.2d at 184.

[***27]

   No elaborate chain of custody needs to be established here.  The blood sample was not taken for the purpose of litigation.  See Pratt v. State, 39 Md.App. at 456, 387 A.2d at 787 (the indicia of reliability dissipates if the report is prepared for a purpose other than treatment, especially if prepared in anticipation of litigation); and 6 McLain, supra, § 803(6).1, at 382; and cf., Palmer v. Hoffman, 318 U.S. at [*225] 114, 63 S.Ct. at 481, 87 L.Ed. at 650 (the report's primary utility was in litigation and court use, not in the business of railroading).  The testing was performed in the hospital and not by a police laboratory. See, e.g., State v. Henderson, 554 S.W.2d 117 (Tenn.1977) (inadmissible state laboratory report); and generally, Imwinkelried, "The Constitutionality of Introducing Evaluative Laboratory Reports Against Criminal Defendants," 30 Hastings L.J. 621 (1979). n9£ And there were no discrepancies apparent on the face of the record.  See Moon, 300 Md. at 359 & 370-371, 478 A.2d at 697 & 703. [**35] Thus no extensive foundation [***28] needs to be laid before this hospital report is admissible under the business record exception.  The testimony of the emergency room physician showing that the emergency services report was made in the "regular course of business" and that the toxicological screen of Garlick's blood and urine was "pathologically germane to treatment" was sufficient to justify admission.  See Old v. Cooney Detective Agency, 215 Md. at 525, 138 A.2d at 893 ("We have said that reliability sufficient to justify admission is suggested if the recital in the history is "pathologically germane" to the physical condition which caused the patient to be brought to the hospital for treatment").

n9 But see Robertson v. Cox, 320 F.Supp. 900 (W.D.Va.1971) (medical report stating a positive chemical test result was admissible into evidence) (citing Robertson v. Commonwealth, 211 Va. 62, 175 S.E.2d 260 (1970)); and State v. Kreck, 86 Wash.2d 112, 542 P.2d 782 (1975) (state chemist report of results of testing blood for chloroform was admissible).

[***29]

   It would have been of little utility and of great inconvenience to summon every doctor, nurse, or technician who examined Garlick, took his pulse and blood pressure, drew or screened his urine and blood. Many hospital tests and procedures are performed routinely and their results are relied upon to make life and death decisions. n10£ The examining [*226] doctor relied on these objective scientific findings for Garlick's treatment and never doubted their trustworthiness. Neither do we.  This high degree of reliability, as we explained early on, permits introduction of the test results contained in the hospital records presented in this case without any need for showing unavailability of the technician and without producing the technician. Under these circumstances the constitutional right of confrontation is not offended.

n10 See Pratt v. State, 39 Md.App. 442, 456, 387 A.2d 779, 787 (1978), aff'd, 284 Md. 516, 398 A.2d 421 (1979) ("Hospital records are considered trustworthy partially because they are routinely used to make decisions affecting the life and health of the patient").  See also People v. Kirtdoll, 391 Mich. 370, 386 & n. 9, 217 N.W.2d 37, 46-47 & n. 9 (1974) (quoting, among others, Globe Indemnity Co. v. Reinhart, 152 Md. 439, 137 A. 43 (1927)); and generally, 6 J. Wigmore, Evidence § 1707 (Chadbourn rev. ed. 1976).

[***30]

   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 THE COSTS. 

ANNE ARUNDEL COUNTY, Maryland et al. v. FRATERNAL ORDER OFANNE ARUNDEL DETENTION OFFICERS AND PERSONNEL 
No. 137, September Term, 1986
 
Court of Appeals of Maryland
 
313 Md. 98; 543 A.2d 841; 1988 Md. LEXIS 92

 
March 3, 1987, Argued  
 July  28, 1988, Decided

   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 AFFIRMED.  ANNE ARUNDEL COUNTY TO PAY COSTS.

CORE TERMS:  arbitration, agreements to arbitrate, enforceable, collective bargaining agreement, charter, collective bargaining, employee compensation, arbitrator, arbitration agreement, invalid, agreement to arbitrate, county executive, county council, lieutenant, budget, wage, arbitration provision, general law, common law, Maryland Uniform Arbitration Act, county charter, bind, local ordinance, public policy, duty, Uniform Arbitration Act, specifically authorized, charter provision, unenforceable, binding arbitration

COUNSEL: ARGUED BY David S. Bliden, Deputy County Solicitor (Stephen R. Beard, County Solicitor, on the brief), both of Annapolis, Maryland, for appellants.

   ARGUED BY John Gregory Smith (Whitworth, Weber & Smith, on the brief), all of Crofton, Maryland, for appellee.

JUDGES: Murphy, C.J., and Eldridge, Cole, Rodowsky, Couch, * McAuliffe and Adkins, JJ.

* Couch, 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: [*100] [**842] This case concerns the validity of a provision in a collective bargaining agreement between Anne Arundel County and a union to resolve certain disputes that may arise in the future through arbitration.

   I.

   Article 8, Title 4, of the Anne Arundel County Code authorizes the County to bargain collectively with certified representatives of the County's employees with regard [***2] to various matters.  The local ordinance, in §§ 4-107 and 4-110 of Article 8, Title 4, also authorizes arbitration to resolve certain types of disputes between the County and the employees' representative. Pursuant to the statutory authorization for collective bargaining, Anne Arundel County and the Fraternal Order of Anne Arundel Detention Officers and Personnel (the Union) entered into a collective bargaining agreement on March 21, 1984. This agreement became effective on July 1, 1984, and continued through June 30, 1987, after which it became "self-renewing for yearly periods unless written notice of intention to terminate or modify this Agreement is given by either party . . . not later than January 1st of any calendar year."

   Article 1, § 1.2(a), of the agreement sets forth the employee positions that are currently represented by the Union.  These positions are Detention Officer I, Detention Officer II, and nurse.  Section 1.2(b) of the agreement [*101] provides that if a position is newly-created or retitled, whether it is included in the unit represented by the Union depends upon "the mutual agreement of the County and the Union." n1£ This section [**843] further provides that if [***3]an agreement cannot be reached, the dispute shall be resolved in accordance with the provisions of § 4-107(e) of Article 8 of the Anne Arundel County Code.  Under § 4-107(e), "[w]henever the [County] Personnel Officer and the petitioning employee organization are in disagreement as to the determination of the appropriate representation unit, 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." n2

n1 The agreement also conditions the inclusion or exclusion of additional positions on whether, under § 1-225(b) of the Anne Arundel County Code, the position would be eligible for inclusion.  In the 1985 revision of the Code, § 1-255(b) became § 4-107(c)(2) and (d).  Sections 4-107(c)(2) and (d) set forth the relevant factors used in determining the "appropriate representation unit," including, inter alia, that "management and confidential employees [shall not be] included in the same unit with nonmanagement or nonconfidential employees."£ § 4-107(d).

n2 Neither side argues that, in the absence of the agreement to arbitrate, § 4-107(e) would itself require arbitration of the dispute concerning the proper representation unit.  In fact, the Union specifically takes the position that § 4-107(e) is directly applicable only to disputes "concerning the appropriate bargaining unit upon initial certification."£ (Union's brief, p. 2).  In light of our disposition of this case, we shall assume arguendo that § 4-107(e) does not apply absent the arbitration provision in the collective bargaining agreement.

[***4]

   On March 15, 1985, Anne Arundel County established an additional position, Detention Officer III (lieutenant), to be assigned to the Detention Center.  The Union sought to include this new position in the same representation unit.  The County Office of Personnel, however, considered the lieutenants "management and confidential employees" and therefore not proper members of this representation unit.  See Article 8, § 4-107(d) of the Anne Arundel County Code.  Pursuant to the collective bargaining agreement, the Union sought arbitration to resolve this issue.  On June 24, 1985, the Acting Personnel Officer of the County informed the [*102] Union that the County would not enter into arbitration, apparently deciding that the Personnel Office's conclusion that the Detention Officer III position was "management and confidential" resolved the matter of the appropriate representation unit. n3

n3 Although not an issue in this case, it is unclear whether the County Personnel Office's position is that it is inappropriate for the Detention Officer III position to be a part of any employee representation unit or whether it is inappropriate for the position to be part of the same representation unit containing Detention Officers I and II and nurses.

[***5]

   On September 9, 1985, the Union filed suit in the Circuit Court for Anne Arundel County seeking an order compelling arbitration, and on June 26, 1986, the Union moved for summary judgment.  The County filed an opposition to the motion, as well as a cross-motion for summary judgment, contending, inter alia, that "[t]he requested arbitration is not authorized" and that the arbitration provision in the collective bargaining agreement was "ultra vires."£ The circuit court granted the Union's motion, denied the County's motion, and issued an order compelling arbitration. The circuit court viewed the issue to be arbitrated as unlike "the amount of compensation to be set for employees or the hours to be set."£ Instead, the court characterized the representation issue as "ministerial in nature."

   The County appealed the order to the Court of Special Appeals.  Before any proceedings began in that court, we issued a writ of certiorari.

   In support of its contention that arbitration is inappropriate, the County makes two alternate arguments.  First, the County asserts that, because this agreement to arbitrate is not within the Maryland Uniform Arbitration Act, n4 the common law rule applies, [***6] rendering unenforceable agreements to arbitrate disputes which, at the time the agreement was entered into, were not yet in existence.  Alternatively, the County argues that, even if an agreement to [*103] arbitrate future disputes is generally enforceable, submitting this collective bargaining dispute to arbitration is invalid under this Court's opinions in Office & Prof. Employees Int'l v. MTA, 295 Md. 88, 453 A.2d 1191 (1982); Maryland Cl. Emp. Ass'n v. Anderson, 281 Md. 496, 380 A.2d [**844]1032 (1977); and Mugford v. City of Baltimore, 185 Md. 266, 44 A.2d 745 (1945). The County claims that arbitration of a collective bargaining dispute such as the one involved in this case is invalid unless authorized by the County Charter or by an act of the General Assembly, and that no charter provision or act of the General Assembly authorizes the arbitration. Therefore, the County concludes, the circuit court should not have issued an order compelling arbitration.

n4 Maryland Code (1974, 1984 Repl.Vol.), § 3-201 through § 3-234 of the Courts and Judicial Proceedings Article.

[***7]

   II.

   Historically, when two parties entered into an agreement to arbitrate disputes, courts generally distinguished between agreements to arbitrate existing disputes and agreements to arbitrate disputes that might arise in the future.  While the former agreements would be judicially enforceable, courts generally took the position, with some exceptions, that agreements to arbitrate future disputes were voidable at any time by either party before an award was made.  Thus, equity courts refused to specifically enforce agreements to arbitrate future disputes, and such an agreement would not be a defense to a suit in law or equity with respect to the matter agreed to be arbitrated.  See, e.g., 16 Williston on Contracts § 1923 (3d ed. 1976); Brantley on Contracts 227 (2d ed. 1912); Mullen, Arbitration Under Maryland Law, 2 Md.L.Rev. 326 (1938). See also Insurance Company v. Morse, 20 Wall. 445, 451, 22 L.Ed. 365 (1874); Tomlinson v. Dille, 147 Md. 161, 167, 127 A. 746 (1925); Wilson & Co. v. Curlett , 140 Md. 147, 153-154, 117 A. 6 (1922); Allegre v. Maryland Ins. Co., 6 H. & J. 408, 413 (1823); [***8] Contee v. Dawson, 2 Bland 264, 275-276 (1826); W.H. Blodgett Co. v. Bebe Co., 190 Cal. 665, 671, 214 P. 38, 41 (1923); Cocalis v. Nazlides, 308 Ill. 152, 158-159, 139 [*104] N.E. 95, 98 (1923); Oskaloosa Sav. Bank v. Mahaska County State Bank, 205 Iowa 1351, 1359, 219 N.W. 530, 533-534 (1928), overruled, Wilmotte & Co. v. Rosenman Bros., 258 N.W.2d 317 (Iowa 1977); Dugan v. Thomas, 79 Me. 221, 223, 9 A. 354, 354-355 (1887); Sanford v. Boston Edison Co., 316 Mass. 631, 636, 56 N.E.2d 1, 4 (1944); Pres't, etc., D. & H. Canal Co. v. Pa. Coal Co., 50 N.Y. 250, 258 (1872); Pepin v. Societe St. Jean Baptiste, 23 R.I. 81, 83-84, 49 A. 387, 388 (1901); Johnson v. Brinkerhoff, 89 Utah 530, 544-545, 57 P.2d 1132, 1139 (1936); Kinney v. Relief Assn., 35 W.Va. 385, 387, 14 S.E. 8 (1891), overruled, Board of Education v. W. Harley Miller, Inc., 160 W.Va. 473, 236 S.E.2d 439 (1977); [***9] Avery v. Scott, 8 Exch. 497, 500, 155 Eng.Rep. 1447, 1448 (1853). See additionally, Restatement of Contracts, §§ 550, 551 (1932).

   The Maryland Uniform Arbitration Act, Code (1974, 1984 Repl.Vol.), § 3-206(a) of the Courts and Judicial Proceedings Article, in contrast, provides that agreements to arbitrate future disputes are "valid and enforceable."£ Section 3-206(b), however, provides that the Maryland Uniform Arbitration Act does not apply to an arbitration agreement between employers and employees unless the agreement expressly states that the Act applies.  See Wilson v. McGrow, Pridgeon & Co., P.A., 298 Md. 66, 467 A.2d 1025 (1983). Unless the terms of the collective bargaining agreement between Anne Arundel County and the Union make the Maryland Uniform Arbitration Act applicable, which they do not, § 3-206(a) will not apply to validate the agreement to arbitrate future disputes.  Neither side in this case has pointed to any other statute which would make the arbitration agreement between the County and the Union enforceable. n5£ Consequently, if the arbitration provision is [*105] to be enforced, it must [***10] be enforceable as a matter of Maryland common law. See Bd. of Educ. v. P.G. Co. Educators' Ass'n, 309 Md. 85, 95-98, 522 A.2d 931 (1987).

n5 In particular, neither the County nor the Union has suggested that Article 8, Title 4, of the Anne Arundel County Code, authorizing collective bargaining agreements, would make the instant arbitration agreement enforceable. In light of the parties' positions, we shall assume arguendo that no statutory provision renders enforceable the arbitration agreement in this case.

   [**845] Many types of arbitration agreements have traditionally been enforceable in Maryland; indeed, arbitration agreements were and are encouraged by the courts and the General Assembly.  See, e.g., Ch. XXI of the Acts of 1778, § VIII; Ch. 379 of the Acts of 1878, § 1.  See also Code (1974, 1984 Repl.Vol.), § 3-201 through § 3-234 of the Courts and Judicial Proceedings Article; Code (1957), Art. 7, § 1 through § 5.  This Court has consistently stated that arbitration is a favored [***11] method of dispute resolution.  See, e.g., Bd. of Educ. v. P.G. Co. Educators' Ass'n, supra, 309 Md. 85, 522 A.2d 931, and cases there cited; Gold Coast Mall, Inc. v. Larmar Corp., 298 Md. 96, 468 A.2d 91 (1983). n6

n6 Cases in other jurisdictions are to the same effect.  See, e.g., Bd. of Educ., Fairbanks N. Star Bor. Sch. Dist. v. Ewig, 609 P.2d 10 (Alaska 1980); John A. Errichetti Associates v. Boutin, 183 Conn. 481, 439 A.2d 416 (1981); Ass'n of Owners v. Swinerton & Walberg Co., 705 P.2d 28 (Hawaii 1985); Bingham County Com'n v. Interstate Elec. Co., 105 Idaho 36, 665 P.2d 1046 (1983); Minton Constr. Corp. v. Com., 397 Mass. 879, 494 N.E.2d 1031 (1986); Crosby-Ironton, etc. v. Ind. School, etc., 285 N.W.2d 667 (Minn.1979); Shaw v. Kuhnel & Associates, Inc., 102 N.M. 607, 698 P.2d 880 (1985); Mobil Oil Indonesia v. Asamera Oil (Indonesia), 43 N.Y.2d 276, 372 N.E.2d 21, 401 N.Y.S.2d 186 (1977); Cyclone Roofing Co., Inc. v. David M. LaFave Co., 312 N.C. 224, 321 S.E.2d 872 (1984); Ice City, Inc. v. Insurance Co. of North America, 456 Pa. 210, 314 A.2d 236 (1974); City of Hot Springs v. Gunderson's, Inc., 322 N.W.2d 8 (S.D.1982); Robinson & Wells, P.C. v. Warren, 669 P.2d 844 (Utah 1983); Richco Structures v. Parkside Village, Inc., 82 Wis.2d 547, 263 N.W.2d 204 (1978); T & M Properties v. ZVFK Architects, 661 P.2d 1040 (Wyo.1983).

[***12]

   Only one type of arbitration agreement -- an agreement to arbitrate disputes that might arise in the future -- has been deemed unenforceable under Maryland common law principles.  As previously indicated, courts would neither order specific performance of such agreements, Contee v. Dawson, supra, 2 Bland at 275-276, nor was the existence of an arbitration agreement a defense to a court action, Tomlinson v. Dille, supra, 147 Md. at 167, 127 A. 746; Wilson & Co. v. Curlett, supra, 140 Md. at 153-154, 117 A. 6; [*106] Allegre v. Maryland Ins. Co, supra, 6 H. & J. at 413; Contee, supra, 2 Bland at 276.

   Under many circumstances, however, even agreements to arbitrate disputes that may arise in the future have been considered enforceable under Maryland common law principles.  For example, a court will enforce an arbitration agreement if the issue to be arbitrated is only a condition precedent to the bringing of an action in court.  See, e.g., Eisel v. Howell, 220 Md. 584, 588-589, 155 A.2d 509 (1959); Wilson & Co., supra, 140 Md. at 153, 117 A. at 8-9; [***13] M. & C.C. of Balt. v. Clark, 128 Md. 291, 97 A. 911 (1916); Aetna Indem. Co. v. Waters, 110 Md. 673, 73 A. 712 (1909); Home Ins. Co. v. Schiffs' Sons, 103 Md. 648, 64 A. 63 (1906); Randall v. Glenn, 2 Gill. 430, 438 (1844). See also Avery v. Scott, supra, 8 Exch. at 502, 155 Eng.Rep. at 1449. Moreover, when a dispute arises, if the parties voluntarily proceed to arbitration pursuant to an earlier arbitration agreement, and if an award is entered, the court will enforce the award.  See Cont. Mill. Co. v. Doughnut Corp., 186 Md. 669, 48 A.2d 447 (1946); Tomlinson v. Dille, supra, 147 Md. at 167, 127 A. at 748. Additionally, a court of chancery, "from the difficulty it finds in dealing with the subject in dispute without great loss or total ruin, has earnestly recommended and insisted upon the parties, submitting the matter in controversy to arbitration, according to the terms of their previous express agreement."£ Contee v. Dawson, supra, 2 Bland at 276. [***14] See also Waters v. Taylor, 15 Ves.Jr. 10, 33 Eng. Rep. 658 (1808).

   Because the agreement between the County and the Union does not fit within any of the above-mentioned exceptions, the agreement would not have been enforceable under the earlier cases.  The Union argues, however, that even if the arbitration clause were not enforceable under prior case law, this Court should now, in accordance with contemporary views, hold that agreements to arbitrate future disputes are enforceable. In appropriate instances, as the Union points out, we have modified common law principles to reflect contemporary conditions or views.  See, [**846] e.g., [*107] Kelley v. R.G. Industries, Inc., 304 Md. 124, 497 A.2d 1143 (1985); Jones v. State, 302 Md. 153, 161, 486 A.2d 184 (1985); Boblitz v. Boblitz, 296 Md. 242, 462 A.2d 506 (1983); Adler v. American Standard Corp., 291 Md. 31, 42-43, 432 A.2d 464 (1981); Kline v. Ansell, 287 Md. 585, 414 A.2d 929 (1980).

   We agree with the Union that the earlier refusal of courts [***15] to enforce agreements to arbitrate future disputes is no longer a sensible approach.  The old rule was based on reasoning that does not withstand analysis. There is no sound public policy for distinguishing between the enforceability of some agreements to arbitrate disputes that might arise in the future and the enforceability of all other arbitration agreements.  We believe that agreements to arbitrate future disputes generally should be enforceable even in the absence of a specific statutory provision.
 
   Moreover, we note that a number of jurisdictions have declined to follow the common law rule with regard to agreements to arbitrate future disputes, some overruling prior decisions. n7£ The West Virginia Supreme Court of Appeals, in Bd. of Ed., Etc. v. W. Harley Miller, Inc., 160 W.Va. 473, 482, 236 S.E.2d 439, 445 (1977), held that agreements to arbitrate future disputes would be enforceable, stating that "the weight of modern, enlightened authority favors arbitration as a preferred means of conflict resolution."£ Similarly, the Minnesota Supreme Court, in Park Const. Co. v. Independent School Dist. No. 32, 209 Minn. 182, 296 N.W. 475 (1941), [***16] overruled prior Minnesota cases to hold that agreements to arbitrate future disputes are enforceable at common law. See Pettinaro Const. Co. v. [*108] Harry C. Partridge, Etc., 408 A.2d 957 (Del.Ch.1979); Ass'n of Owners v. Swinerton & Walberg Co., 705 P.2d 28, 34-35 (Hawaii 1985); United Ass'n of Journ. & App. of Plumbing, Etc. v. Stine, 76 Nev. 189, 351 P.2d 965 (1960); Borough of Ambridge Water Authority v. Columbia, 458 Pa. 546, 548-549, 328 A.2d 498, 500 (1974). See also Zahn v. District Court in and for County of Weld, 169 Colo. 405, 457 P.2d 387 (1969); Interstate Bakeries Corp. v. Bakery, Etc., Drivers U., 31 Ill.2d 317, 201 N.E.2d 452 (1964); Joseph L. Wilmotte Co. v. Rosenman Bros., 258 N.W.2d 317, 328 (Iowa 1977); LaStella v. Garcia Estates, 66 N.J. 297, 331 A.2d 1 (1975). These courts have generally reasoned that not only is the theory underlying the rule against agreements to arbitrate future disputes unsound, but also, in light of the contemporary [***17] view of arbitration, agreements to arbitrate future disputes should be enforceable.

n7 Those states which have adopted the Uniform Arbitration Act verbatim have likely found no need to address this question since the Uniform Act applies to contracts generally even if the contract does not specifically make the Act applicable.  See 7 U.L.A. 1 (1955).  Consequently, in virtually all contexts, agreements to arbitrate future disputes will be enforceable. The Maryland Act, in contrast, does not apply to contracts in the employer-employee context unless the contract explicitly makes the Act applicable.  See also Bd. of Educ. v. P.G. Co. Educators' Ass'n, 309 Md. 85, 95-96 n. 3, 522 A.2d 931 (1987).

   In Maryland, as in other states, the reason most frequently given in early cases for refusing to enforce agreements to arbitrate future disputes was that the courts would not allow the parties to "oust the court of jurisdiction."£ Tomlinson v. Dille, supra, 147 Md. at 167, 127 A. 746; [***18] Wilson & Co. v. Curlett, supra, 140 Md. at 153, 117 A. 6; Allegre v. Maryland Ins. Co., supra , 6 H. & J. at 413; Contee v. Dawson, supra, 2 Bland at 275-276. To the extent that arbitration ousts the court of jurisdiction in any case, however, courts have only protested this "ouster" with respect to one type of arbitration agreement. In addition, the Minnesota Supreme Court has also pointed out the flaws in this reasoning (Park Const. Co. v. Independent School Dist. No. 32, supra, 209 Minn. at 186, 296 N.W. at 477):
 
"[T]here appears never to have been any factual basis for holding that an agreement to arbitrate 'ousted' jurisdiction.  It has no effect upon the jurisdiction of any court.  Arbitration simply removes a controversy from the arena of litigation.  It is no more an ouster of judicial jurisdiction than is compromise and settlement [**847] or that peculiar offspring of legal ingenuity known as the covenant not to [*109] sue.  Each disposes of issues without litigation.  One no more than the other ousts the courts of jurisdiction.  The right to a jury trial, even in a criminal [***19] case, may be waived.  So, also, may the right to litigate be waived.  Such waiver may be the result of contract or unilateral action."

   Furthermore, to the extent that there might have been a public policy of this State against the enforcement of agreements to arbitrate future disputes, that public policy changed with the adoption by the General Assembly of the Uniform Arbitration Act. That statute, in § 3-206(a) of the Courts and Judicial Proceedings Article, explicitly makes agreements to arbitrate future disputes enforceable. See also 7 U.L.A. 1 (1955) (Uniform Arbitration Act). n8£ As the Court of Appeals of Michigan stated (E.E. Tripp, Ex. Con., Inc. v. City of Jackson, supra, 60 Mich.App. 221, 246-247, 230 N.W.2d 556, 568 (1975)):
 
"The heavily case-loaded courts are no longer jealous of their jurisdiction. Where the parties, by a fair agreement, have adopted a speedy and inexpensive means by which to have their disagreements adjusted, we see no public policy reasons for the courts to stand in their way.  On the contrary we have a clear expression of public policy in the legislative enactments which provide for statutory arbitration."
[***20]
 
See also, Interstate Bakeries Corp. v. Bakery, Etc., Drivers U., 31 Ill.2d at 319-320, 201 N.E.2d at 453; Park Const. [*110] Co. v. Independent School Dist., supra, 209 Minn. at 186, 296 N.W. at 477.

n8 It is true, as the County points out, that unlike the Uniform Arbitration Act, the Maryland Uniform Arbitration Act is only applicable in the context of employer-employee contracts if the contract explicitly so states.  See § 3-206(b).  This does not, however, lead to the conclusion that the Maryland General Assembly intended that agreements in labor contracts to arbitrate future disputes would be unenforceable unless the contract expressly made the Act applicable.  Rather, as explained in Wilson v. McGrow, Pridgeon & Co., P.A., 298 Md. 66, 467 A.2d 1025 (1983), the General Assembly enacted § 3-206(b) because the enforceability of arbitration provisions in collective bargaining agreements is ordinarily governed by federal labor law.

[***21]

   Therefore, we hold that agreements to arbitrate future disputes are generally valid and enforceable under Maryland common law.

   III.

   As previously indicated, the County makes the alternate argument that arbitration of a public employee labor dispute of the type involved in this case is invalid unless authorized by the Anne Arundel County Charter or by the General Assembly.  Reliance is placed upon this Court's opinions in Office & Prof. Employees Int'l v. MTA, supra, 295 Md. 88, 453 A.2d 1191; Maryland Cl. Emp. Ass'n v. Anderson, supra, 281 Md. 496, 380 A.2d 1032; and Mugford v. City of Baltimore, supra, 185 Md. 266, 44 A.2d 745. The County's argument based on these cases consists of two parts.

   First, the County broadly contends that the above-cited cases "clearly establish" that a county or municipality generally "may not enter into binding arbitration without specific authorization arising from a public general law or charter provision. * * * There is no public general law or charter provision authorizing Anne Arundel County to enter into binding arbitration."£ Therefore, according to [***22] the County, the contract provision upon which the Union relies in demanding arbitration "is unenforceable."£ (County's Brief, pp. 4-5).

   Second, the County advances the somewhat narrower position that a charter county, absent authorization in its charter or from the General Assembly, may not by ordinance or contract delegate to an arbitrator legislative decision-making power which, under the local government's charter, is vested in a county executive and county council. Anne Arundel County argues that, because the setting of employee compensation is the type of discretionary legislative duty which is vested in the County Executive and the [*111] County Council under the Anne Arundel County Charter, issues having an impact on this function [**848] may not be delegated to an arbitrator absent authority to do so granted by the Charter or the General Assembly.  The representation issue in this case, according to the County, has such an effect on employee compensation that it may not be delegated to an arbitrator. (County's Brief, pp. 5-6).

   The County's broad contention, that any arbitration pursuant to a local ordinance and collective bargaining agreement is invalid unless specifically [***23]authorized by the county charter or public general law, represents a misreading of this Court's opinions in Office & Prof. Employees Int'l v. MTA, supra; Maryland Cl. Emp. Ass'n v. Anderson, supra; and Mugford v. City of Baltimore, supra. With regard to Anne Arundel County's narrower position, the general legal principle asserted by the County is essentially correct under our cases.  Thus, a charter county may not, absent authorization by public general law or charter provision consistent with Art. XI-A of the Maryland Constitution, delegate to an arbitrator a discretionary governmental power or function which the charter vests in the county executive and county council. Furthermore, the ultimate determination of county employees' compensation is, under the Anne Arundel County Charter, one of these nondelegable governmental functions. Therefore, an arbitrator's decision regarding employee compensation could not bind the County Executive and County Council in the submission and enactment of the budget under the executive budget system prescribed by the Anne Arundel County Charter. We disagree [***24] with the County, however, that the representation issue in this case has such an impact on the ultimate determination of employee compensation that the issue may not be arbitrated pursuant to the ordinance and collective bargaining agreement.

   In broadly contending that any arbitration pursuant to the local ordinance and collective bargaining agreement is invalid unless specifically authorized by its Charter or [*112] enactment of the General Assembly, Anne Arundel County, particularly at oral argument before us, most heavily relies on Office & Prof. Employees Int'l v. MTA, supra. The issue in that case was whether the Mass Transit Administration (MTA), a state government agency, was authorized to enter a collective bargaining agreement, including an arbitration provision, with regard to the "wages, hours, pension rights, etc. of a particular group of the Administration's employees," consisting of 35 secretarial and clerical personnel.  295 Md. at 90, 91, 453 A.2d 1191. The provisions of state law authorizing the MTA to engage in collective bargaining and arbitration, with regard to certain employees, were contained [***25] in Maryland Code (1977), §§ 7-601 and 7-602 of the Transportation Article.  In asserting that collective bargaining and arbitration with respect to the 35 positions were authorized and could be compelled by a court, one of the Union's arguments was
 
"that, even if the collective bargaining authorization in § 7-601 and the arbitration provision in § 7-602(b) of the Transportation Article do not encompass the thirty-five additional clerical employees, nothing in these sections prohibits the MTA from arbitrating the representational issue and, depending upon the result of the arbitration, from entering into a collective bargaining agreement covering the wages, pension rights, etc. of these employees.  Consequently, the Union argues, the MTA's alleged agreement to arbitrate this issue is valid and should be enforced."£ 295 Md. at 94, 453 A.2d 1191.
 
In rejecting this argument, we initially pointed out that § 7-601 denied the MTA authority to enter a collective bargaining agreement with respect to these 35 positions.  Id. at 96, 453 A.2d 1191. We then stated (id. at 97, 453 A.2d 1191): [***26] 

   "Apart from the principles of statutory construction discussed above, the Union's first argument would still lack merit.  Even if § 7-601 were not construed as prohibiting collective bargaining agreements except in accordance with its terms, the result would be the same.

   [*113] "It is established in this State that, absent express legislative authority, a government agency cannot enter into [**849] binding arbitration or binding collective bargaining agreements establishing wages, hours, pension rights, or working conditions for public employees.  Maryland Cl. Emp. Ass'n v. Anderson, 281 Md. 496, 508-513, 380 A.2d 1032 (1977); Mugford v. City of Baltimore, 185 Md. 266, 270-272, 44 A.2d 745 (1945). See also City of Balto. v. Am Fed. of St., Etc., 281 Md. 463, 379 A.2d 1031 (1977)."

   In the instant case, Anne Arundel County seizes upon the final sentence of the above quotation, and the citation to three earlier cases involving local governments operating under charters, in arguing that collective bargaining agreements with arbitration provisions must be specifically authorized by an act of [***27] the General Assembly or by a county charter. The language relied on in the MTA case clearly does not support Anne Arundel County's argument.  The point made in MTA was simply that, for a government agency to enter a collective bargaining agreement with an arbitration provision, it must be expressly authorized by law to do so.  As the agency in that case was a state agency, the question of express legal authorization related to a statute enacted by the General Assembly.  Nothing in the MTA case suggests, however, that the legal authorization for a local government agency to engage in collective bargaining and arbitration could not come from a local ordinance. It is true that the Anderson and Mugford cases cited in the MTA opinion did concern the need for a certain level of legal authorization (i.e. in the charter or public general law) if a local collective bargaining ordinance purported to bind the local government executive and council in the exercise of certain powers or functions which the charter vests in the executive and council.  Nevertheless, these earlier cases did not hold that every local government collective bargaining agreement and arbitration [***28] must be specifically authorized by charter or public general law. And the earlier cases were cited in the MTA opinion only for the more general principle that a collective bargaining [*114] agreement with an arbitration provision, entered into by a government agency, must be expressly authorized by law.

   Here, there is express legislative authority for Anne Arundel County's Office of Personnel to enter collective bargaining agreements and engage in arbitration. It is contained in Article 8, Title 4, of the Anne Arundel County Code.  The impediment to arbitration which existed in the MTA case is not present in the case at bar. n9

n9 The County has not suggested in this case that the terms of Article 8, Title 4, do not authorize the collective bargaining agreement and the requested arbitration; instead, its position has been that the authority must come from a higher source.  As both sides and the court below have proceeded on the basis that the terms of the local ordinance did expressly authorize the agreement and requested arbitration, we shall for purposes of this case proceed upon the same assumption.

[***29]

   As previously indicated, we essentially agree with the general legal principle underlying Anne Arundel County's narrower contention regarding the delegation of charter functions to an arbitrator; we disagree, however, with the County's application of that principle to the facts before us.  In Maryland Cl. Emp. Ass'n v. Anderson, supra 281 Md. at 508-509, 380 A.2d at 1039, this Court stated:

   "The validity of collective bargaining agreements in which municipalities bind themselves to exercise their discretionary legislative powers over compensation of public employees in a particular manner, or agree to delegate such powers to binding arbitration, has been the subject of much recent litigation.  Where municipal governments have been authorized by higher law, i.e., state constitutional provisions, or public general laws or municipal charter provisions, to enter into collective bargaining agreements which bind them in the exercise of their legislative discretion, the courts have generally upheld such collective bargaining agreements, rejecting contentions that they amount to invalid abdications or delegations of legislative authority.  On the other [***30] hand, in the situation where neither a public general law nor municipal charter provision authorized the municipality to [*115] bind itself in the exercise of legislative [**850] discretion over public employee compensation, the courts have generally taken the position that attempts to do so in collective bargaining agreements or municipal ordinances are invalid."
 
 See Mugford v. City of Baltimore, supra, 185 Md. at 270, 44 A.2d at 747. See also City of Balto. v. Am. Fed. of St., Etc., supra, 281 Md. at 468, 471, 379 A.2d at 1033-1035. The Anderson and Mugford cases make clear that delegation to private individuals, of certain duties involving the exercise of discretion specifically assigned by a county charter to the county executive and council, may be invalid.

   The Anne Arundel County Charter, like the Harford County and Baltimore City Charters involved in the Anderson and Mugford cases, prescribes a detailed executive budget system.  Under it, for each fiscal year, the Anne Arundel County Executive, after receiving budget proposals from county agencies and officials, must submit to the County Council [***31] a current expense budget which includes proposed expenditures for employee compensation. See §§ 701-704, 706-707 of the Anne Arundel County Charter. In addition, the County Executive must promulgate, subject to County Council approval, a detailed pay plan for county employees which shall classify employees and prescribe a salary range for each class of employees.  See § 801 of the Charter. The County Council generally may decrease or delete items in the annual budget as submitted by the Executive, but it may not "increase any expenditure recommended by the County Executive for current or capital purposes."£ See § 709 of the Charter.

   Turning to the case at bar, Anne Arundel County maintains that an arbitrator's decision in the representation dispute will have a substantial impact upon the County Executive's and County Council's duties under the Charter to determine employee compensation. Therefore, according to the County, the agreement to arbitrate the representation dispute constitutes an invalid delegation of the Executive's [*116] and Council's authority over the budget and, specifically, over employee compensation.

   In asserting that the representation dispute [***32] directly affects the compensation which the lieutenants at the Detention Center will receive, the County points out that the present collective bargaining agreement contains provisions for specific wage increases and overtime payments for those employees currently in the collective bargaining unit.  At oral argument before us, the County suggested that, if the lieutenants are determined to be members of the unit, the same wage and overtime provisions will automatically be applicable to them.

   We find no support for the County's suggestion in the collective bargaining agreement or in county law.  Instead, we agree with the Union's position that an arbitrator's decision placing the lieutenants in the same collective bargaining unit will have no direct effect on the lieutenants' compensation.  As the Union stated in oral argument before us, if it is determined that the lieutenants are to be included in the unit, the matter of their compensation is entirely subject to negotiation and the processes set forth in the County Charter. According to the Union, and we concur, the existing compensation and overtime provisions in the collective bargaining agreement, applicable to the current members [***33]of the unit, will not automatically apply to the lieutenants.

   In our view, the determination of whether positions should be included in or excluded from the representation unit is not so determinative of employee compensation as to be an inappropriate subject for arbitration in the absence of authority granted by the Charter or General Assembly.  This type of employee classification does not have the direct impact upon the Executive's and Council's duty to set employee compensation that actual determination of the wages and salary of county employees does.  Cf. Mont. Co. Ed. Ass'n v. Bd. of Educ., 311 Md. 303, 322-323, 534 A.2d 980, 989 (1987); The Idaho Statesman v. N.L.R.B., 836 F.2d 1396, 1397 (D.C.Cir.1988); Newspaper Printing Corp. v. [*117]N.L.R.B., 625 F.2d 956, 963 (10th Cir.1980), cert. denied, 450 U.S. 911, 101 S.Ct. 1349, 67 L.Ed.2d 335 (1981); Hess Oil & Chemical Corporation [**851]v. N.L.R.B., 415 F.2d 440, 445 (5th Cir.1969), cert. denied, 397 U.S. 916, 90 S.Ct. 920, 25 L.Ed.2d 97 (1970).

   An arbitrator's [***34] decision as to which representation unit is appropriate for a certain group of employees may have no effect upon the wages and salaries of those employees; it merely permits the Union to bargain with the County on behalf of the employees.  Furthermore, as conceded by the Union, the County Council and the County Executive still retain the ultimate decision-making authority with respect to employee compensation. Both the County Executive and the County Council must, in accordance with their duties under the Charter, approve any agreement reached by the County's Office of Personnel and Union representatives.

   For the above reasons, we reject the County's argument that the agreement submitting to arbitration the representation dispute in this case was invalid.

   JUDGMENT OF THE CIRCUIT COURT AFFIRMED.  ANNE ARUNDEL COUNTY TO PAY COSTS. 

Marshall K. STEELE, III, and Stephen E. Faust v. John G.GOETTEE, Personal Representative of the Estate of Elvira B. Chaney 
No. 130, September Term, 1987
 
Court of Appeals of Maryland
 
313 Md. 11; 542 A.2d 847; 1988 Md. LEXIS 91

 June  27, 1988

   PRIOR HISTORY: [***1]  
Appeal from 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 REVERSED AND CASE REMANDED TO THAT COURT FOR THE PASSAGE OF AN ORDER AFFIRMING THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY; RESPONDENT TO PAY THE COSTS.

CORE TERMS:  specific performance, acre, quantity, deed, rescission, seller, buyer, vendor, per square foot, fence, realtor, selling, parcel, abatement, fiduciary, personal representative, unilateral mistake, tract, decree, adverse possession, purchase price, contingency, surveyor, dollar, plat, conditions precedent, specification, estimation, purchaser, vendee

COUNSEL: James P. Nolan (Donna G. McCabe, and Council, Baradel, Kosmerl & Nolan, P.A., all of Annapolis), all on brief, for appellant.

   Ronald H. Jarashow (William A. Franch and Franch & Jarashow, P.A., all of Annapolis, Maryland), all on brief, for appellee.

JUDGES: Murphy, C.J., and Cole, Rodowsky, McAuliffe, Adkins, Blackwell, JJ., and Marvin H. Smith, Associate Judge of the Court of Appeals of Maryland (retired), Specially Assigned.

OPINIONBY: SMITH

OPINION: [*13] [**848] This case concerns an in gross contract for the sale of real estate and the determination of a trial court in a declaratory judgment action brought by the buyer that the seller should specifically perform the contract.  We shall reverse the judgment of the Court of Special Appeals contained in Goettee v. Steele, 71 Md.App. 520, 526 A.2d 626 (1987), and thus shall affirm the decree of the trial court [***2] that the seller specifically perform the contract.

   Aside from the issue of whether this was a sale in gross, the facts are undisputed.  Those which we shall relate are gleaned from the findings of fact of the trial court or are uncontroverted facts taken from the record.  Under Maryland Rule 886 when an action has been tried by the lower court without a jury, this Court will review the case upon both the law and the evidence, "but the judgment of the lower court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses."£ There is no contention that the trial judge erred in finding that this was an in gross contract.

   Elvira B. Chaney died on February 6, 1985.  John G. Goettee qualified as the personal representative under her will on March 8, 1985.  She owned a home in Annapolis at Giddings and Forbes Avenues where she had lived for a number of years.  Goettee is both an accountant and a lawyer.  He has been practicing law since about 1964 and began representing Mrs. Chaney in accounting matters back in the 1950's.

   Goettee testified that once he had qualified as personal [***3] representative he obtained plats and a tax map of Mrs. Chaney's property.  The tax map showed approximate dimensions [*14] of 100 feet across the front for the two lots owned by Mrs. Chaney and approximately 150 feet down the sides. From a realtor he obtained a plat prepared by a surveyor in 1952 that showed an area of approximately 17,500 square feet.

   Goettee procured an appraisal of subject property under date of March 25, 1985.  It estimated the fair market value at $261,000.

   Goettee requested of an Annapolis surveyor a feasibility study of the property in question.  He advised Goettee on April 16, 1985:

   "The configuration of property shown was obtained from deed found in Liber WMB 22/282 with plat recorded at WMB 22/269.  There appears, however, to be a boundary problem and/or deed discrepancy [**849] that can only be resolved by a field survey.  City records indicate a 'gap' in boundaries and deed plotting likewise reflect a possible gap.  Field investigation indicates possession possibly different from title lines."

   On April 24, 1985, the realtor with whom Goettee ultimately listed the property requested a survey.  In a contract dated May 14, 1985, Goettee listed this property [***4] with that realtor stating the area was approximately 15,650 square feet.  The asking price was $395,000.  The petitioners here were excluded as potential buyers from that listing as was Rev. Lance, an adjoining landowner.

   Petitioners Marshall K. Steele, III, and Stephen E. Faust are physicians who practice in partnership.  They own a building directly across the street from the Chaney property.  They proposed erection of a building on the Chaney property, if they could purchase it, of about 14,000 square feet, the size of the building occupied by them.  Faust paced off the Chaney property down two sides and concluded that the lot contained approximately 21,000 square feet, a conclusion he did not communicate to his attorney.  Using information which he said he procured from the realtor to whom we have previously referred, this attorney prepared [*15] for Steele and Faust a contract with Goettee for the sale of the subject property.  In that contract the property is described as:

   "16,000 square feet, more or less, together with improvements thereon located at 716 Giddings Avenue, Forbes Street, Annapolis Maryland, as further described in the Land Records of Anne Arundel County, [***5] at Liber, folio."
 
The contract called for a sale price of $279,500 with a down payment of $10,000.  This contract was submitted to Goettee on May 10, 1985.  On May 28 Goettee returned the contract and check, stating, "[a]s explained, we expect to receive more than $18.00 per square foot for this property and have listed it with a real estate broker for $395,000.  We may not receive a contract for this amount, but we thought we would wait a reasonable time to see what surfaces."

   In late June Dr. Faust called Goettee by telephone, learned that no other offers had been made, expressed his and Dr. Steele's interest in purchasing the property, and asked what price Goettee really wanted.  Goettee said $300,000. Dr. Faust testified:
"I was using a phone with a long extension cord and I walked into an examining room with a window looking out on this piece of property and I said, now look, Mr. Goettee, I want to be completely clear about this.  What we are talking about is this corner property with the fence around it that I am looking out of my window at, right now.  Is that right?

   "And then he said, yes, that's right.

   "And I said, what you are selling and what we are buying [***6] is the area inside this fence, is that right?

   "And he said, yes.

   "And I said, well, I am going to put something in the contract to that effect and initial it and we'll send it over with a change in the purchase to three hundred thousand dollars.

   [*16] "And he said, fine."
Goettee confirmed this conversation.

   The contract was resubmitted with the purchase price changed to $300,000 and a provision added at the end:

   "This contract is additionally contingent upon the completion of a survey showing that the actual boundaries of the property are within two (2) feet of the fence surrounding the tract."
A contract of sale was signed by all parties on July 3, 1985.

   Goettee's deposition was read into evidence.  He was questioned about the contingency:

   "Q Now let me ask you a question, what did you understand that last contingency to mean?  That is the contingency on the last page of the contract?

   "A It only meant to me that he was endeavoring to buy the whole tract.

   "Q What was the tract that you were selling?

   [**850] "A What was surrounded by the fence. I [sic] was my thought at that time that the contract was signed.

   "Q That was the piece that you believe was owned by Mrs. Chaney [***7] that extended from the Lance property all the way down to Forbes Street and from Giddings Avenue back to the fence behind Grauls Market?

   "A Right.

   "Q The entire corner parcel?

   "A Right."

   After the contract was signed, a survey, which had been requested by the realtor on April 24, was completed.  We attach a copy of that plat to this opinion which the reporter is directed to reproduce.  That survey shows an area of 22,047 square feet.  Interestingly, however, it shows an abandoned portion of Forbes Avenue running through the dwelling.  One of the Chaney deeds called for a place of beginning at a certain distance from the intersection of Ridgely Avenue and Giddings Avenue.  The other deed called for the point of beginning to be at the intersection of Giddings Avenue and Forbes Street.

   [*17] After the survey was received, according to Faust, Goettee called him.  "He said, there is an additional parcel. It has got another title to it. There is more land here than we thought and we need to -- you need to pay more money."£ However, Goettee said he did not change the listing with the realtor at $395,000 after receiving the survey.

   Goettee testified that after the survey came in showing [***8] 22,000 square feet, he called the attorney for Faust and Steele and told him that he thought he should have $400,000 for the property but if the doctors would pay him $350,000 "without any qualms, one way, shape or form, [he] w[ould] settle."

   Based on information supplied by the surveyor, Goettee had a deed prepared in September from the owner of the abandoned Forbes Street area, conveying the property to him as personal representative. He said he asked his real estate agent to see if he could acquire the property for $500.  The husband of the owner called Goettee and said they would sell for $1,000.  Goettee said he "didn't do anything for the thousand ($1,000) because I reasoned in my mind should the plaintiffs prevail in this suit, let them pay the thousand ($1,000) dollars to get the adverse possession."

   On January 22, 1986, Drs. Steele and Faust filed a complaint for declaratory judgment asking that they be declared the equitable owners "of the property located at 714-716 Giddings Avenue," and that the agreement of sale dated July 3, 1985, be declared valid and enforceable against Goettee as personal representative of the estate of Mrs. Chaney.  The trial judge (Wolff, [***9] J.), filed a comprehensive and well-reasoned opinion.  He decreed specific performance.

   The Court of Special Appeals reversed.  It said that "[e]ven though [it] reverse[d], [its] review of the record indicates that there was sufficient evidence to support th[e] factual conclusion of the [trial] court" that "the sale of the property was in gross, and not by the acre."£ The Court of Special Appeals stated that "[o]n several occasions, th[is] [*18] [C]ourt has allowed the abatement of price when the sale was in gross," citing Kriel v. Cullison, 165 Md. 402, 406, 414-15, 169 A. 203 (1933), "(upholding the trial court's abatement of $561.50 for the deficiency in a contract conveying 'forty-five acres, more or less')" and Reigart v. Fisher, 149 Md. 336, 348-49, 131 A. 568 (1925), "(ordering a two thousand dollar abatement for shortage in a contract conveying seven acres more or less)." n1£ The intermediate [**851] appellate court said that this Court "has taken great pains in construing qualifying phrases such as 'more or less,' 'about,' or 'approximately' in a manner that will minimize the harsh effects of an in gross contract."£ [***10]71 Md.App. at 524-26, 526 A.2d at 628-29. It further observed that "[e]ven when th[is] Court has refused to allow rescission or adjustment in the purchase price, it has issued the warning that qualifying phrases such as 'more or less' should not provide a universal haven or refuge against all personal liability."£ 71 Md.App. at 526-27, 526 A.2d at 629. The court further said:

   "Although the circuit court determined that the actions of appellees as buyers did not reach the level of fraud, we find disturbing the circumstances surrounding the transaction.  First, the discrepancy in quantity was not minor, but a forty percent variation.  Second, from the very beginning, appellees possessed the knowledge that the actual square footage of the parcel substantially exceeded the amount recited in the contract for sale and the amount which appellant thought he was selling. Specifically, [*19] appellee Dr. Faust admitted that he knew the size of the lot to be about 21,000 or 22,000 square feet.  Third, appellant compiled considerable information regarding the parcel. Numerous surveys indicated that the parcel's size was in the range [***11]of 16,000 square feet as recited in the contract.  Although the surveys and other data did indicate that the precise size remained in question, these documents in themselves contained nothing that would put an individual on inquiry notice that there might be a gross variance.  Fourth, appellant was not the actual owner of the parcel, but was merely the personal representative of the Chaney estate, who had only visited the land and reviewed various surveys and maps.

   "And finally, appellant's actions during the negotiations indicate that he considered size and the resulting per square foot cost as critical and central to reaching an agreement.  Appellant rejected the first offer for $279,000.00 since the price did not provide a minimum of $18.00 per square foot. Appellant's letter of May 28, 1985 clearly stated that if appellees offered a minimum of $18.00 per square foot for the entire 16,000 square foot tract, then he would consider selling the property to them.  When appellees increased their offer to $300,000.00, a value of $18.75 per square foot, based on 16,000 square feet, appellant accepted.

   "From these facts, we think that appellant intended to enter into an in gross [***12] contract, but not to assume the risk of extreme variation in quantity. In light of the Maryland case law that has attempted over the years to mitigate the harsh effects of in gross sales, we must reverse.  In such cases as this one, the circuit court should have either ordered appellees, at their option, to pay for the excess or to rescind the contract in toto.  In reaching this decision, this court is mindful of the fact that relief to vendors who have entered into an in gross sale is rare.  When the vendor happens not to be the true owner, but a fiduciary, and when the buyer possesses [*20] prior knowledge of the sale, however, this result is warranted."£ 71 Md.App. at 527-29, 526 A.2d at 630.

n1 In Kriel Judge Parke as Chief Judge of the Circuit Court for Carroll County allowed an abatement in a suit for specific performance brought by the vendor against the vendee. The vendee had refused to perform the contract because of the deficiency.  Reigart likewise was a suit by the vendor against the vendee. The contract called for "about 7 acres, more or less, and improved by a 15 room stucco cottage, a garage and other improvements."£ The seller owned but 4.764 acres. This Court said, "The evidence shows that the price of the two acres lot which plaintiffs were negotiating for to take the place of the shortage was two thousand dollars, and that amount should have been allowed in abatement."£ 149 Md. at 348-49, 131 A. 572.

[***13]

   Petitioners contend that under Maryland law one who intends to enter into an in gross contract assumes the risk of variation in quantity; that the Court of Special Appeals improperly found fraud on the part of the buyers by requiring them to disclose to the seller the size of the property being sold; that in determining the intent of the parties the Court of Special Appeals improperly considered extrinsic evidence, and that the intermediate appellate court improperly concluded that a fiduciary/vendor is held to a lesser standard of care in the sale of real property than a true owner/vendor. On the other hand, respondents contend that the Court of Special Appeals correctly found that equitable circumstances required rescinding an in gross contract for gross mistake, that mutual [**852] mistake or misrepresentation or unilateral mistake about material facts existed which justified rescission, and that no lower standard was set for a fiduciary seller.

   As we indicated at the outset, under Rule 886 we "review the case upon both the law and the evidence, but the judgment of the lower court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity [***14] of the lower court to judge the credibility of the witnesses."£ Rule 1086 to like effect is applicable to the Court of Special Appeals.  If there is substantial evidence to support the trial court's factual conclusion, that finding must be reviewed in the light most favorable to the prevailing party below and the appellate court should accept that conclusion. Dougherty v. Merc.-Safe Dep. & Tr., 282 Md. 617, 621-22, 387 A.2d 244, 247 (1978).

   The significance of the finding by the trial court that what was involved here was a sale in gross is found by referring to the opinion of Judge Offutt for the Court in Kriel v. Cullison, 165 Md. 402, 408, 169 A. 203, 205-06 (1933): 
 
[*21] "A sale in gross, sometimes called a 'contract of hazard,' is where specific designated parcels of land are sold as a whole and there is no warranty, express or implied, as to quantity. 2 Words and Phrases, Third Series, page 446.  In determining whether a sale is by the acre or in gross, as in other contracts, the intention of the parties is controlling and must be given effect.  27 R.C.L. 436; 39 Cyc. 1313, note 5.

   "Where the [***15] language of the contract is clear, plain, and free from ambiguity, that intention must be gathered from its four corners; but where it leaves the question in doubt, extrinsic evidence as to the surrounding circumstances and the situation of the parties is admissible to aid in its interpretation.  Ibid.

   "The mere fact that the acreage is specified in the contract does not conclude the question, and where it is apparent that the specification of quantity was not intended by the parties to be of the essence of the contract, but merely descriptive of the property, the sale will be considered as in gross, notwithstanding the specification (39 Cyc. 1313, note), especially where the specification is qualified by the words 'more or less.'£ Tyson v. Hardesty, 29 Md. 305; Slothower v. Gordon, 23 Md. 9; Hall v. Mayhew, 15 Md. 551; Stull v. Hurtt, 9 Gill. 446; Hurt v. Stull, 3 Md. Ch. 24."

   Brodsky v. Hull, 196 Md. 509, 77 A.2d 156 (1950), involved a suit by a purchaser against a seller for return of a down payment on the ground of fraud. The land was advertised [***16] in a newspaper as containing about an acre. The buyer refused to sign the contract unless it stated that he would receive about an acre. The agent of the seller "inserted in the contract in his own handwriting the words 'one acre more or less'."£ 196 Md. at 512, 77 A.2d at 157. A survey revealed the actual area to be only .465 of an acre. The trial judge instructed the jury:
"If you find that the statement in the contract was not made for the purpose of deceiving the Brodskys, but was made in good faith by the Hulls, that they thought they [*22] had an acre of land there and that they were able to convey what the Brodskys saw, when they saw the property twice before the contract was made, and that they offered to convey within the time limited by the contract, then your verdict will be for the defendants."£ 196 Md. at 514, 77 A.2d at 158.
The jury returned a verdict in favor of the defendant.  This Court affirmed. Judge Delaplaine observed for the Court:

   "It is a firmly established rule in this State that where it appears by definite boundaries, or by words of qualification, such as 'more or less,' in a contract [***17] of sale that the statement of the quantity of land is mere estimation and description, and not of the essence of the contract the buyer takes the risk of quantity, and is not entitled to an abatement of price on account of a deficiency, in the absence of fraud.  Jones v. Plater, 2 Gill 125, 128, 41 Am.Dec. 408; Stull v. Hurtt, 9 Gill 446, 451; Hall v. Mayhew, 15 Md. 551, 568; Slothower v. Gordon, 23 Md. 1, 10; [**853] Tyson v. Hardesty, 29 Md. 305; Jenkins v. Bolgiano, 53 Md. 407, 420; Baltimore Permanent Building & Land Society v. Smith, 54 Md. 187, 203, 39 Am.Rep. 374; Cohen v. Numsen, 104 Md. 676, 65 A. 432; Wagner v. Goodrich, 148 Md. 318, 129 A. 364; Musselman v. Moxley , 152 Md. 13, 136 A. 48; Neavitt v. Lightner, 155 Md. 365, 142 A. 109; Kriel v. Cullison, 165 Md. 402, 409, 169 A. 203. This rule does not bar an action of deceit for fraudulent misrepresentation of [***18] quantity, or a suit in equity for rescission of contract or abatement of purchase price for innocent misrepresentation or mutual mistake.  It is also true that in some cases an unreasonably large deficiency in quantity may be an indication of fraud."£ 196 Md. 514-15, 77 A.2d at 158.
  
The Court further said, "[I]t is generally true that a purchaser is entitled to assume that the seller knows the acreage of the land which he is selling."£ 196 Md. at 516, 77 A.2d at 159. We know of no rule that would vary this general principle in the case of a fiduciary making sale, particularly a fiduciary such as the one in the case at bar [*23] who had visited and revisited the property in question many times over the years.

   In an earlier day, before the passage of the Uniform Declaratory Judgment Act in Maryland, the action here would have been one for specific performance rather than one for a declaratory judgment.  However, specific performance was what was sought by the purchasers and what was granted to them.  We thus look at the law of specific performance.

   In Hupp v. George R. Rembold Bldg. Co., 279 Md. 597, 369 A.2d 1048 (1977), [***19]Judge Singley said for the Court:

   "Generally, the granting or withholding of a decree for specific performance lies within the discretion of the trial court, Gross v. J & L Camping & Sports, 270 Md. 539, 543-44, 312 A.2d 270, 273 (1973), quoting from The Glendale Corp. v. Crawford, 207 Md. 148, 154, 114 A.2d 33, 35 (1955)):
'This discretion is not, however, arbitrary; and where the contract is, in its nature and circumstances, unobjectionable -- or, as it is sometimes stated, fair, reasonable and certain in all its terms -- it is as much a matter of course for a court of equity to decree specific performance of it as it is for a court of law to award damages for its breach.'

   "An overview of circumstances in which specific performance may be granted can be found in this Court's opinion in Charles County Broadcasting v. Meares, 270 Md. 321, 324-26, 311 A.2d 27, 30-31 (1973):

   'The granting of specific performance rests within the sound discretion of the trial court, Horst v. Kraft, 247 Md. 455, 459, 231 A.2d 674, 676 (1967); Restatement of Contracts [***20] § 359(1) (1932).  If a contract is fair, reasonable and certain, specific performance may be granted almost as a matter of course, Excel Co. v. Freeman, 252 Md. 242, 246, 250 A.2d 103, 106 (1969). This is true even if the contract is contingent, if the contingency can be met, Scheffres v. Columbia Realty Co., 244 Md. 270, 284, 223 A.2d 619, 626 (1966); within [*24] the time stated, Paappe v. Grimes, 256 Md. 490, 499, 260 A.2d 644, 649 (1970). See generally Chapman v. Thomas, 211 Md. 102, 126 A.2d 579 (1956).'"
279 Md. at 600-01, 369 A.2d at 1050-51.

   The Court said in Beck v. Bernstein, 198 Md. 244, 81 A.2d 608 (1951):

   "Of course, specific performance of a contract will not be decreed unless it is clear, unambiguous, and certain in all its parts and is fair and mutual. [citing cases] A contract, to be final, must include all the terms which the parties intend to introduce and material terms cannot be left for future settlement."£ 198 Md. at 248, 81 A.2d at 609-10. [***21] 

   3 Pomeroy's Equity Jurisprudence, (5th ed. S. Symons, 1941) § 926 states:

   "The doctrine, however, is now settled [in a majority of jurisdictions] that mere inadequacy -- that is inequality in value between the subject-matter and the price -- is not a ground for refusing the remedy of specific performance; in order [**854] to be a defense, the inadequacy must either be accompanied by other inequitable incidents or must be so gross as to show fraud. In short, inadequacy as a negative defense and as an affirmative ground for cancellation is governed by one and the same rule."£ Id. at 631 (bracketed material in original; italics in original).
 
The author correctly cites, among other cases, Lawson v. Mullinix, 104 Md. 156, 167-69, 64 A. 938, 942-43 (1906), for this proposition.

   In Kappelman v. Bowie, 201 Md. 86, 93 A.2d 266 (1952), where the Court affirmed a decree dismissing a bill for specific performance of a real estate contract repudiated by the vendors on the ground of mistake and inadequacy of price, Judge Henderson said for the Court:

   "We agree with the chancellor that the price in the instant case was [***22]grossly inadequate, and that the property was worth at least $9,000 in fee, the price that the appellees, according to their testimony, thought they [*25] were selling for.  Mere inadequacy of price is, of course, not a sufficient ground for denying specific performance, but it may be considered in connection with other grounds of equitable relief."£ 201 Md. at 91, 93 A.2d at 268.

   This case comes back to the opinion of the trial court.  In that opinion the judge quoted from Jenkins v. Bolgiano, 53 Md. 407 (1880), where Chief Judge Bartol said for the Court:

   "In the absence of fraud, or false representations, inducing him to enter into the contract, the complainant is bound by the terms of his lease and deed, and cannot complain if the lot has turned out to be smaller than he supposed. He purchased the lot in gross according to its metes and bounds as described in the trustee's deed. The rule in such cases is thus stated by Chancellor Kent: 'Whenever it appears by definite boundaries, or by words of qualification, as "more or less" or as "containing by estimation," or the like, that the statement of the quantity of acres in [***23] the deed, is mere matter of description, or not of the essence of the contract, the buyer takes the risk of the quantity, if there be no intermixture of fraud in the case.'£ 4 Kent, 467."£ 53 Md. at 420. (emphasis added by the trial judge).

   The trial judge found the purpose of Drs. Faust and Steele in purchasing the property was to build a medical office consisting of 14,000 square feet.  He said:
 
"The plaintiffs were concerned only that they purchase a lot large enough for a 14,000 square foot office building.  The price of the land was not stated in dollars per square foot. Although the Defendant arrived at his price by calculating a price per square foot, the sale was for the land within the fence."
 
He concluded that the statement of the quantity of square feet was not of the essence of the contract because the concern of the plaintiffs with their purpose of building a building containing 14,000 square feet "was with the size of the lot as a whole and not with a specific number of square [*26] feet."£ He found no fraud on the part of the plaintiffs that would result in rescission of the contract.  Relative to the contention of Goettee that Drs. Faust [***24] and Steele knew from their own calculation that the lot contained more than 16,000 square feet, he said:
"[T]he Court finds that the plaintiffs paced off the lot in order to compare it with their existing lot.  By pacing off both lots, the Plaintiffs compared the areas and determined that they were of equal size.  The Plaintiffs did not know the square footage of the existing lot.  All they knew was that the existing lot contained an office building consisting of 14,000 square feet.  Since the two lots were approximately the same size, the plaintiffs believed they could construct a 14,000 square foot office building on the Giddings Avenue lot.  The plaintiffs' rough estimation of the size of the lot does not give rise to any fraud."

   The trial judge "f[ound] that the intention of the parties was to sell the area within the fence at 716 Giddings Avenue" and thus rejected any contention that any [**855] inherent ambiguity in the contract might warrant, under the circumstances presented, rescission of the contract or adjustment of the purchase price. He found that "mutual mistake is not proven by clear, strong and convincing evidence."£ He dealt with the argument that "rescission is required [***25]because Plaintiffs made a material misrepresentation as to the actual size of the tract" by saying "this Court finds that the plaintiffs paced off the lot and made a rough estimate of the area to determine whether a 14,000 square foot building could be built.  Under these circumstances, there is neither a knowing or negligent misrepresentation by the plaintiffs as to the actual size of the lot."

   The trial judge took up the contention that there should be a rescission on the basis of unilateral mistake by referring to the "four conditions precedent to rescission for unilateral mistake" laid down in Baltimore v. DeLuca-Davis Co. , 210 Md. 518, 124 A.2d 557 (1955). There Judge Hammond said for the Court:
 
[*27] "The general rule as to the conditions precedent to rescission for unilateral mistakes may be summarized thus: 1, the mistake must be of such grave consequences that to enforce the contract as made or offered would be unconscionable; 2, the mistake must relate to a material feature of the contract; 3, the mistake must not have come about because of the violation of a positive legal duty or from culpable negligence; 4, the other party must [***26]be put in statu quo to the extent that he suffers no serious prejudice except the loss of his bargain."£ 210 Md. at 527, 124 A.2d at 562.
 
The trial judge found the conditions precedent not met.  He said enforcing the contract was not unconscionable because "[t]he parties agreed to purchase a lot for a lump sum.  The contract fully expresses their intention."£ He found no unilateral mistake where the seller relied on the buyers' statement of square footage.  The trial judge found "rescission based on the Defendant's unilateral mistake is not warranted."

   The trial judge rejected a contention that the contract failed for a lack of a meeting of the minds because he had "determined that the parties did intend to sell the tract of land at 716 Giddings Avenue for a lump sum of $300,000."£ He rejected a contention that the description of the land was insufficient, rendering the contract voidable, saying, "The testimony showed that a survey was made of the lot.  The surveyors had no trouble locating the tract in order to perform the survey."£ He did not clearly err in any of those findings.  There was evidence to support him.

   We discount the cases cited by [***27] respondent from other jurisdictions having to do with variance in the area conveyed because Goettee's decedent did not hold record title to all of the land being conveyed.  Title to part of the land apparently rests upon adverse possession, an issue not tried below.  If the petitioners do in fact determine to build upon the subject property and, as is the usual case, seek financing, then, undoubtedly, they will be faced with one of three possibilities as a prerequisite to such financing: (1) the [*28] finding of a title company willing to insure title based upon adverse possession; (2) negotiation with and obtention of a deed from the record owners of that portion of the land not included in the deeds to Mrs. Chaney; or, (3) the bringing of a suit to establish title by adverse possession. See, generally, the discussion by Judge Hammond for the Court in Clarke v. Lacy, 213 Md. 482, 489-90, 132 A.2d 478, 482 (1957).

   JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED AND CASE REMANDED TO THAT COURT FOR THE PASSAGE OF AN ORDER AFFIRMING THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY; RESPONDENT TO PAY THE COSTS.

   [*29] [**856] [SEE ILLUSTRATION [***28] IN ORIGINAL] 

Frederick R. WEISMAN et al. v. Arthur B. CONNORS 
No. 34, September Term, 1987
 
Court of Appeals of Maryland
 
312 Md. 428; 540 A.2d 783; 1988 Md. LEXIS 66

 May  4, 1988

   SUBSEQUENT HISTORY: [***1] As Amended May 11, 1988.  Motion for Reconsideration Granted May 27, 1988.

PRIOR HISTORY:  
Certiorari to the Court of Special Appeals, Circuit Court for  Anne Arundel  County - Judge H. Chester Goudy, Jr.

DISPOSITION: AS TO THE NEGLIGENT MISREPRESENTATION COUNT OF THE COMPLAINT: JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT FOR RULING ON THE ISSUES RAISED BY THE APPELLEE ON CROSS APPEAL AND, THEREAFTER, THE COURT OF SPECIAL APPEALS IS DIRECTED TO REMAND THE CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR A NEW TRIAL; COSTS TO ABIDE RESULT.

CORE TERMS:  negligent misrepresentation, misrepresentation, duty, duty of care, general manager, negligently, vice president, nexus, seller, buyer, precontractual, franchise, intimate, negotiation, salary, special relationship, indeterminate, speaker, life insurance policy, employment contract, venture, bonus, owed, accountant, legally sufficient, cause of action, economic loss, personal injury, matter of law, distributorship

COUNSEL: Argued by Paul F. Strain (Benjamin R. Civiletti, J. Phillip Jordon, Christopher R. Mellott and Venable, Baetjer & Howard, and Oscar S. Gray, on the brief), all of Baltimore, Maryland, for appellants.

   Argued by George Beall and Kristine A. Crosswhite (Miles & Stockbridge, on the brief), all of Baltimore, Maryland, for appellee.

JUDGES: Murphy, C.J., and Eldridge, Cole, Rodowsky, McAuliffe, Adkins and Blackwell, JJ.

OPINIONBY: MURPHY

OPINION: [*431] [**784] This case primarily concerns the tort of negligent misrepresentation alleged to have arisen from the factual matrix of an arm's length negotiation of an employment contract.

   I
 
   In early April 1981 Arthur Connors and Frederick [***2] Weisman, who were previously unknown to each other, met for breakfast at Weisman's townhouse in New York City.  Connors at that time was a fifty-six year old vice president of Ford Motor Company, one of about forty vice presidents in Ford's worldwide operations.  A veteran of thirty-two years of service with Ford, he directed a staff of sixty and drew an annual salary of approximately $140,000.  In addition, he received many substantial non-salary benefits, including annual bonuses averaging about 62% of his salary, participation in a stock option plan involving 12,000 shares of Ford stock, a special savings plan where Ford matched a percentage of deferred compensation, and a pension plan that permitted him to retire at 60% of salary. Connors was provided by Ford with two company cars; Ford also paid Connors' country club membership and the premiums on a $200,000 life insurance policy.

   Weisman, a successful entrepreneur, was the sole owner of Frederick Weisman Company (FWC), a holding company whose chief component was Mid-Atlantic Toyota (MAT), a major Toyota distributorship. The two men met to discuss the possibility of Connors' working for FWC as executive vice president. This [***3]meeting began a chain of events that led to an employment relationship between Connors and Weisman, to the breakdown of that relationship, and finally to a law suit filed by Connors against Weisman and FWC on November 30, 1983 in the Circuit Court for Anne Arundel County.  Connors' complaint contained four counts: (1) [*432] breach of a written contract by FWC; (2) breach of an oral contract by Weisman individually; (3) negligent misrepresentation by Weisman and FWC; and (4) fraud by Weisman and FWC.

   Averments in Connors' complaint, upon which evidence was adduced at the ensuing four-week jury trial, disclosed that Connors and Weisman had been brought together largely through the efforts of Korn/Ferry, an executive recruiting firm -- a "headhunter" agency -- employed by Weisman.  Connors testified that he was basically content [**785] with his lot at Ford but, enticed by Korn/Ferry's representations of the executive vice president position at FWC, decided "[i]f single happy, double happy's got to be better," and reluctantly agreed to meet with Weisman.  A representative of Korn/Ferry, on the other hand, testified that from the very first contact Connors expressed restlessness and discontent [***4] with his work at Ford.  At that time, Ford was suffering the second of three consecutive years of billion dollar losses, causing among other effects a reduction in Connors' staff from about 100 in 1977 to 60 in 1981.  In a letter Connors wrote to Ford in December 1982 he stated that his decision to leave was made prior to seeking any outside employment and was due to a feeling that because of recent staff and policy changes at Ford he "could not contribute to the limit of [his] experience."£ Connors, however, testified that Ford's financial woes were not a significant factor in his decision to depart because the company's planners were confident Ford would return to profitability by 1983 (which in fact occurred).

   In his complaint Connors alleged that at the April 1981 breakfast meeting in New York Weisman made a number of representations concerning the executive vice president position and FWC, leading Connors to believe that FWC was on the verge of a significant lateral expansion of its automotive division into related fields such as automobile rental, insurance, and financing; that as executive vice president he would have an equity participation in this expansion and that the value [***5] of these ownership interests [*433] would more than offset the benefits which Connors would sacrifice by leaving Ford; that MAT was a stable franchise; that Weisman's relationship with Robert McCurry, who was then general manager of MAT, was basically amicable though beset with communication problems; and that as executive vice president Connors would have broad executive responsibilities, would report only to Weisman, and would not be required to perform the duties of general manager. Believing these representations, favorably impressed by other aspects of FWC, and finding Weisman to be "an absolutely charming person," Connors began to give serious thought to accepting the FWC position.  Doubts, however, remained, chiefly concerning the substantial non-salary financial benefits Connors would lose by leaving Ford.

   In mid-April 1981 a second meeting took place, this time in California.  Al Toffel, a Weisman consultant, was present along with Weisman and Connors. Connors testified that during the two days of this meeting, the earlier representations were reiterated and expanded upon.  According to Connors, he repeatedly voiced his concerns about financial loss from leaving Ford, [***6]and each time Weisman responded with assurances such as "we'll handle it," "that's not a problem," "my intent is that you'll be better off if you join me than if you stayed at Ford."£ Salary was not specifically discussed because, Connors testified, salary was for him a secondary consideration: the prospect of equity participation was the real lure.

   Following the California meeting several telephone conversations occurred between Connors, Toffel, and David Smith, a vice president of Korn/Ferry, as Connors neared commitment on taking the FWC position.  On May 1, Smith sent Connors a letter setting forth the various matters discussed in regard to Connors' employment and stating that Weisman and Toffel had agreed to them. Included in the letter were some, but not all, of the representations made at the New York and California meetings.  Connors showed this letter to his family lawyer, who cautioned that [*434] it was "pretty general" and "loose," especially with respect to equity participation; Connors opined in response that because of the uncertainty attending Weisman's expansion projects it did not seem possible to express the terms more concretely.  The terms in this letter, with [***7] a few changes and additions, were incorporated into a three-year employment contract drafted by another attorney employed by Connors.  This contract was executed by both parties on May 5 and Connors began work on June 1. 

   [**786] Under the contract's provisions, FWC agreed to employ Connors as Executive Vice President for a term of three years, commencing June 1, 1981. The contract specified that "it is expected" that Connors would "have broad responsibility for the entire operations of the Company's Automotive Division, including Mid-Atlantic Toyota," three other subsidiaries, and "related operations," with the general managers of these operations reporting to him. The "basic salary" to be received by Connors was $200,000 per year.  Paragraph 3 of the agreement provided for a flat $50,000 bonus at the end of FWC's current fiscal year and, further, at the end of each subsequent fiscal year,
 
"a bonus to be determined in accordance with a formula to be agreed to between you and the Company prior to the beginning of each such fiscal year.  It is anticipated that your bonus target will be $100,000.00 per year.  You will also be eligible for consideration of additional merit bonuses, [***8] as may be awarded from time to time by the Company in its sole discretion."
 
   Other pertinent provisions in the contract stated:

   "4. You will have a vested participation in those future ventures of the Company where you will have operating responsibility.  The vested participation for each new venture will be negotiated separately.

   5. Two (2) years after the Commencement Date, you and the Company will consider extending the term of your employment for an additional two (2) years upon such terms and conditions as may be mutually agreed upon; if such extension is agreed upon, the term of this [*435] agreement shall be five (5) years from the Commencement Date.

   . . . .

   7. On or before the Commencement Date, the Company shall purchase, for its own account, 2,300 shares of the common stock of Ford Motor Company.  The Company shall forthwith transfer full ownership of such stock to you upon the execution of an extension agreement under paragraph 5 above.

   8. On the Commencement Date, and on each anniversary thereof during the term of your employment, the Company shall pay the insurance premium in connection with a $200,000.00 limited payment, full life insurance policy designed [***9]to be paid up in ten (10) equal annual installments.  Such life insurance policy shall be owned by you and your assigns and the beneficiary thereof shall be your wife or such other person or persons as you may from time to time designate."

   During his first days on the job, Connors discovered that Weisman's relations with both Toyota Motors (for which MAT was a regional distributor) and McCurry were troubled, and had been for some time.  The two problems were interrelated. McCurry, a former Chrysler vice president, highly regarded in the automobile industry for his ability to sell cars, had become general manager of MAT in late 1979, bringing with him a cadre of former Chrysler executives.  At that time (unknown to McCurry) MAT had received official notification from Toyota Motors that its sales performance was unsatisfactory and its franchise might not be renewed.  By 1981, under McCurry's leadership, MAT's sales had improved so dramatically that it had become the leading regional distributor in America. MAT profits were high.  Personal relations between Weisman and McCurry, however, were stormy.  McCurry threatened to quit so frequently that he was deemed to have made a standing [***10] offer to resign.  Connors put in evidence an unsigned draft letter dated May 29, 1981 (two days before Connors was to begin work), in which Weisman announced McCurry's resignation; [*436] an earlier letter dated January 7, 1981, made the same announcement.  McCurry's description was that he and Weisman were "totally two different kinds of people."£ From Weisman's perspective, McCurry was arbitrary, arrogant, uncooperative, and disloyal -- "not a team player" -- who treated Weisman as though he were a mere stockholder.  Moreover, Weisman suspected that McCurry was secretly working to obtain the Toyota franchise for himself.

   [**787] Yet Weisman was in a dilemma.  MAT's franchise agreement with Toyota apparently required Toyota's approval of the replacement of MAT's general manager, and McCurry was well liked and highly respected by Toyota's executives. Also, MAT's cadre of executives, having been selected by McCurry, was loyal to him, and might leave if McCurry were discharged.  According to his testimony, Weisman decided to resolve this dilemma by bringing in a senior automobile executive whom McCurry would respect, interposed between himself and McCurry. Hence the search that led to Connors.  [***11] Weisman testified that at the New York and California meetings Connors was fully apprised of the "McCurry problem" and was told that FWC's lateral expansion was contingent on first resolving this problem.  Connors, on the other hand, testified that the McCurry difficulties were sugarcoated as a mere communication problem.  Weisman said that he wished to retain McCurry in his organization if at all possible. Connors' theory was that Weisman knew or should have known that McCurry's departure was inevitable and that, as a consequence, Connors would be forced to assume the position of general manager of MAT, a position Connors had made clear he did not want.

   McCurry's reaction to Connors' appointment was very negative.  Relations between Weisman and McCurry continued to deteriorate, a fact Weisman attributed to Connors' failure to alter McCurry's conduct.  In November 1981, over Connors' objection, and in violation of Weisman's claimed precontractual representation that Connors alone would decide McCurry's fate, Weisman required that Connors [*437] dismiss McCurry.  Since no one else acceptable to Toyota was available, Connors assumed McCurry's duties as MAT's general manager. A [***12]few months later, after receiving their yearly bonus, several other MAT executives also departed.

   The franchise renewal date was less than a year away, and Weisman and Connors agreed that it was critical to present an image of management stability to Toyota.  They also agreed that Connors was to perform MAT's general manager duties only until a suitable replacement could be found.  The quality of Connors' performance as general manager was sharply disputed in the testimony at trial; he continued, however, to act as general manager until MAT's franchise was renewed in August 1982, and then beyond that until he left FWC in August 1983.  During this time relations between Connors and Weisman became increasingly acrimonious.  Weisman faulted Connors for uninspired leadership and inability to find replacements for McCurry and the other departed MAT executives.  Connors presented evidence of MAT's commendable performance and faulted Weisman for constant negative outlook and harmful interference in MAT's day-to-day operations.  Connors also presented evidence that Weisman failed to include Connors as an equity participant in an automotive venture organized during Connors' time at FWC and [***13] that he breached other provisions of the employment contract, i.e., that FWC never purchased the $200,000 life insurance policy for Connors, nor did it acquire the 2,300 promised shares of Ford stock.  And while Connors received his $50,000 bonus for 1981 as agreed in the contact, he received only $50,000 of his "target" bonus of $100,000 for 1982, pursuant to the provisions of paragraph 3 of the agreement.

   In the summer of 1983, while Connors was on vacation, Weisman hired one Jack Brown as executive vice president of FWC.  A new organization chart was circulated that showed Connors, as general manager of MAT, reporting to Brown. Regarding this as a constructive discharge, and [*438] after consulting an attorney, Connors effectively resigned on September 7, 1983.

   At the close of Connors' evidence, Weisman moved to dismiss all counts; the trial court dismissed the oral contract count, and the case went forward on the remaining counts. n1£ The jury, following detailed instructions from the presiding judge (Goudy, [**788] J.), subsequently brought in a verdict for Connors on the written contract and negligent misrepresentation counts, and for Weisman and FWC on the fraud count.  Damages [***14] on the contract count were set at $221,900, a figure apparently reached by adding the salary and bonus Connors would have received for the remaining nine months of his three-year contract to the cost of the life insurance and automobiles Weisman allegedly failed to provide.  On the negligent misrepresentation count damages were set at $2,705,961, the precise sum requested by Connors' counsel in closing argument.  This figure represented the present value of all the money and benefits Connors would have received had he remained at Ford from 1981 to 1990 (when Connors would have reached Ford's mandatory retirement at age 65) minus the salary and benefits Connors actually received at FWC.  By agreement of counsel the contract award was subtracted from the negligent misrepresentation award, leaving Connors a net award of $2,484,061.  Weisman's motions for judgment N.O.V. or, in the alternative, for a new trial were denied.

n1 The motion was renewed at the close of all the evidence; among other grounds, it asserted that there was insufficient evidence to establish any negligent misrepresentations. The motion was again denied.

   [***15] On appeal, the Court of Special Appeals affirmed the judgment. Weisman v. Connors, 69 Md.App. 732, 519 A.2d 795 (1987). It found no merit in Weisman's argument that the elements of the tort of negligent misrepresentation had not been established by the evidence.  Specifically, the court rejected Weisman's contention that, absent fraud or the existence of a special relationship between the parties, [*439] businessmen who bargain at arm's length in a commercial transaction do not owe each other a tort duty of care. In this regard, the court said that while the arm's length nature of the transaction was relevant in determining whether Connors was justified in relying on Weisman's representations, it did not suffice to withdraw the transaction from the scope of the tort.  69 Md.App. at 746, 519 A.2d 795.

   The intermediate appellate court next considered Weisman's argument that (1) his alleged inducements to Connors were merely statements of his current intentions and were not the kind of statements to which the tort applies; (2) that it is not possible to negligently misrepresent one's own intentions; and (3) there is no [***16] such tort as "promissory negligence," which, at best, was all that was involved in this case.  In finding these arguments devoid of merit, the court noted that when the case was submitted to the jury the fraud count was still viable; and that to permit the jury "to consider the fact and context of the various statements allegedly made by Mr. Weisman, including any that may have represented only current intention, was not per se wrongful."£ 69 Md.App. at 746, 519 A.2d 795. As to the negligent misrepresentation count, the court noted that the jury was instructed "that a statement of intention to do or not to do something in the future could not be regarded as a misrepresentation unless the speaker was actually lying -- that it was not actionable merely because the speaker 'later changes his mind and acts differently . . . .'"£ Id..£ [292 Md.] at 746, 519 A.2d 795. The court explained:
 
   "There were a number of things that Mr. Weisman said and promised that never came to pass.  Four of them, at least, were critical to inducing Mr. Connors to leave Ford and accept employment with FWC: (1) that Connors would have broad executive [***17] responsibilities with regard to FWC in all aspects relating to the automobile business; (2) that he would not be simply the general manager of MAT; (3) that FWC would replace the $200,000 life insurance policy paid for by Ford; and (4) that Connors [*440] would receive equity participation in all new FWC ventures relating to the automobile business, and that the value of those ownership interests would more than offset the pension and other benefits that Connors would forfeit by leaving Ford.

   "Whatever may be the nature of other statements made by Weisman, those four went beyond mere current intention or expectation.  They were statements of fact -- what the job would be and what it would pay.  For the most part, they found their way into the actual contract and meet in every respect the standards set forth in Martens Chevrolet [v. Seney, [**789] 292 Md. 328, 439 A.2d 534 (1982)]."£ Id. [292 Md.] at 746-47, 519 A.2d 795.

   As to the damages awarded for Weisman's negligent misrepresentations, the Court of Special Appeals noted that the jury had been instructed that it could consider "the value of the salary, bonuses, [***18] deferred compensation and benefits and other percs Mr. Connors would have earned if he remained at Ford for such time as you find he would have reasonably remained at Ford . . . [less] that amount he actually received since leaving Ford."£ Id. [292 Md.] at 748, 519 A.2d 795. Contrary to Weisman's arguments, the court held that the instruction was in accordance with Maryland law, being based on the "out-of-pocket" theory of damages that seeks to return the plaintiff economically to the position he was in prior to the tortious transaction.  The court said:
 
"To return Mr. Connors to where he was before the transaction requires compensation for all the earnings and other benefits he would have received had he remained at Ford, adjusted to present value and deducting what he actually received from FWC.  We see the court's instructions, then, not as expressing a different theory foreign to Maryland law, but as expressing the theory preferred by our law."£ Id. [292 Md.] at 750, 519 A.2d 795.

   We granted Weisman's petition for certiorari to consider several questions relating to whether the evidence supported [*441] a [***19] negligent misrepresentation cause of action and, if so, whether the jury employed a proper theory of damages in making its award.

   II

   Weisman first contends that the imposition of a tort duty of care for statements made in arm's length commercial transactions, where there is no risk of physical injury and no "intimate nexus" exists between the parties, represents a departure from settled Maryland law.  Arguing that there can be no actionable negligence without a finding that the defendant owed the plaintiff a duty of care, Weisman says that the tort of negligent misrepresentation was not established by the evidence.  He maintains that when, as here, the failure to exercise due care creates only a risk of economic loss, an intimate nexus between the parties, i.e., contractual privity or its equivalent, is required as a condition to the imposition of tort liability.  No such special relationship or intimate nexus exists in this case, according to Weisman, because both he and Connors were sophisticated businessmen, total strangers to one another, who simply met in preliminary, arm's length discussions to explore the possibility of negotiating a mutually advantageous employment agreement. [***20]There was no relationship at all, Weisman says, between Connors and himself even remotely resembling contractual privity or its equivalent.

   Weisman suggests that to impose a duty of care upon him in the circumstances of this case is to create a new tort of promissory negligence for statements of intention or expectation honestly made.  As to the four misrepresentations which the Court of Special Appeals said formed the basis for both the fraud and negligent misrepresentation counts, Weisman urges that the court was wrong in holding that they went beyond mere future intentions or expectations and instead constituted statements of fact.  On the contrary, Weisman maintains that there can be no negligent misrepresentation unless the statements are of past or present fact.  He states that he did no more than describe [*442] his expectations as to what the new position would be and what it would pay; that he was thereby relating his expectations of future facts -- what the situation would be later in time, after negotiations refined the relationship and after a contractual agreement had been reached; and that in these preliminary, precontractual discussions with Connors, he (Weisman) [***21] did not hold himself out to be a neutral and disinterested purveyor of accurate information but was simply attempting to attract an executive to work for him -- a fact so understood by Connors who had an opportunity to investigate the position he was seeking.

   [**790] Weisman acknowledges that his statements could have sustained a tort cause of action if the jury had found that he acted fraudulently, i.e., that he did not actually have the expectations or the intentions that he expressed to Connors.  As to this, Weisman says that if a person represents an expectation about the future without believing that it will come to pass, viz., promissory fraud, he would be liable for misrepresenting a then existing state of mind.  Because the jury in this case concluded that he was not guilty of fraud, Weisman argues that the jury necessarily determined that he did not lie about his then existing state of mind.  The trial court, according to Weisman, erroneously permitted the jury verdict on the negligent misrepresentation count to stand, as it was not possible for him to negligently misstate the state of his own mind.  Weisman explains that if a person harbors the intentions or expectations that [***22] he states, he has committed no tort, even if he changes his intentions after the statement or even if events turn out differently than his stated expectancy.

   Weisman argues that commercial expectations are protected by contract and not negligence law.  This means, he says, that a businessman who wants to protect his expectations that promises of intention of another businessman are accurate must negotiate a contract containing these expectations as a contract term.  In this regard, Weisman suggests that the contract between FWC and Connors contained the material terms of their business agreement and [*443] the remedy for the breach of any of them is solely that prescribed by contract law. To add an additional tort remedy for nonfraudulent statements, Weisman says, is both pernicious and duplicative, whether the alleged misstatements are reflected in the contract or not.

    (A)

   Elements of Negligent Misrepresentation

   We first recognized negligent misrepresentation as a tort action separate from deceit in Virginia Dare Stores v. Schuman, 175 Md. 287, 1 A.2d 897 (1938). In that case the plaintiff, who had been hired to clean the walls of defendant's [***23] store, relied on the assurances of defendant's manager that a certain dress display case was sturdy enough to support plaintiff's weight.  The manager was wrong.  The display case collapsed when plaintiff stood on it, causing him personal injuries.  In allowing recovery for the negligent misrepresentation, we stated the elements of this tort:
 
"[T]he action lies for negligent words, recovery being permitted where one relies on statements of another, negligently volunteering an erroneous opinion, intending that it be acted upon, and knowing that loss or injury are likely to follow if it is acted upon."£ 175 Md. at 292, 1 A.2d 897.
 
Although duty was not explicitly required as an element of the tort, we said that regardless of whether plaintiff was an invitee or a licensee, defendant "owed him some duty."£ Id. [175 Md.] at 291, 1 A.2d 897.

   Virginia Dare involved personal injuries, and when we next considered the tort of negligent misrepresentation in Holt v. Kolker, 189 Md. 636, 57 A.2d 287 (1948), we limited this cause of action to cases involving personal injuries. 189 Md. at 639, 57 A.2d 287. [***24] Holt is also notable for its discussion of duty. Adopting the views of Judge Cardozo in Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275 (1922), we held that "there must be such a relation that one party has the right to rely for information upon the other, and the other giving the information owes a duty to give it with [*444] care."£ Id. [189 Md.] at 640, 57 A.2d 287. In Holt a plumber had assured plaintiff that a second floor porch was safe to walk on; he was wrong, for when plaintiff walked on it she fell through to the ground.  We held the plumber not liable because he was under no duty to plaintiff to accurately represent the condition of the porch.

   In Brack v. Evans, 230 Md. 548, 187 A.2d 880 (1963), we discarded the personal injury limitation in negligent misrepresentation actions.  The plaintiff there sought recovery of money lost in reliance on misinformation [**791]supplied to him by the defendant stockbroker.  We held that on these facts the plaintiff had a cause of action. Thus, the present scope and elements of negligent misrepresentation were basically established.  Two [***25] decades later, in Martens Chevrolet v. Seney, 292 Md. 328, 439 A.2d 534 (1982), we reaffirmed the viability of the tort n2 and clarified its elements. Broadening the Virginia Dare elements somewhat and incorporating the duty requirement first mentioned in Holt, we stated these elements as follows:
 
"(1) the defendant, owing a duty of care to the plaintiff, negligently asserts a false statement;
 
(2) the defendant intends that his statement will be acted upon by the plaintiff;
 
(3) the defendant has knowledge that the plaintiff will probably rely on the statement, which, if erroneous, will cause loss or injury;
  
(4) the plaintiff, justifiably, takes action in reliance on the statement; and
 
(5) the plaintiff suffers damage proximately caused by the defendant's negligence."

n2 In Delmarva Drilling Co. v. Tuckahoe, 268 Md. 417, 427, 302 A.2d 37 (1973), we implied that the tort was no longer viable.  Although we subsequently recognized the tort in Vance v. Vance, 286 Md. 490, 408 A.2d 728 (1979), a case involving premarital misrepresentations, significant confusion remained.  We dispelled this confusion in Martens.

   [***26] 292 Md. at 337, 439 A.2d 534.

   [*445] Martens, as here, involved an arm's length transaction.  There, the buyer of an automobile dealership brought suit against the seller for allegedly misrepresenting the financial condition of the dealership.  The seller contended that because of the transaction's arm's length character, it was subject to no duty of reasonable care in its representations and therefore no claim of negligent misrepresentation could succeed.  We flatly rejected this "sweeping" assertion.  Id. [292 Md.] at 338 n. 7, 439 A.2d 534.

   In Flaherty v. Weinberg, 303 Md. 116, 492 A.2d 618 (1985), we considered whether a cause of action in negligent misrepresentation could be brought against an attorney by a nonclient plaintiff.  Finding no employment relationship between the attorney and the plaintiff, we concluded that the attorney owed the plaintiff no duty of care. Thus, the first Martens element was not satisfied and no recovery on a negligent misrepresentation theory was possible.  In Council of Co-owners v. Whiting-Turner, 308 Md. 18, 517 A.2d 336 (1986), we found a duty owed by builders and architects [***27] to persons foreseeably subjected to the risk of personal injury because of the builders' or architects' negligence.  Allegations of negligent misrepresentation were advanced in that case, but because of their conclusory nature we were unable to state without qualification that an action for negligent representation would lie.  We did say, however, that if the evidence disclosed misrepresentations "made under circumstances that satisfy the elements of this cause of action . . ., the fact that Appellants have suffered only economic loss will not be a bar."£ 308 Md. at 41, 517 A.2d 336. The opposite results of Flaherty and Whiting-Turner illustrate the decisive importance we have accorded the question of duty in negligent misrepresentation claims.

   In Jacques v. First Nat'l Bank, 307 Md. 527, 515 A.2d 756 (1986), we found that a bank that had agreed to process a loan application owed its customer a duty of care in the processing of that application.  While Jacques did not involve a negligent misrepresentation claim, we outlined, in general terms, the principal determinants of when a tort [*446] duty of care will [***28] be recognized.  Two major considerations, we stated, are the nature of the harm likely to result from a failure to exercise due care, and the relationship that exists between the parties.  307 Md. at 534, 515 A.2d 756. As to that relationship, we stated at [307 Md.] 534-35, 515 A.2d 756:
 
"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 [**792] personal injury, no such direct relationship need be shown, and the principal determinant of duty becomes foreseeability."
 
As Jacques involved economic loss only, we had to determine whether, in the circumstances, there was an "intimate nexus" between the parties and thus a duty of care by the bank to its customer.  To shed light on the meaning of "intimate nexus," we there referred to two leading New York decisions involving claims of the existence of tort duties in economic loss cases.  In Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275 (1922), [***29] the court held that a public weigher of beans owed a duty of care in weighing to the buyer of the beans, although the weigher had been engaged only by the seller. By contrast, in Ultramares Corporation v. Touche, 255 N.Y. 170, 174 N.E. 441 (1931), the same court held that public accountants who negligently certified a balance sheet for a corporation owed no duty of care to a factor who, relying on the balance sheet, made loans to the corporation.  The court in Ultramares distinguished Glanzer by noting that the service rendered by the public weigher in that case was primarily for the information of the buyer, a fact known to all participants in the transaction.  This created a bond between the weigher and the buyer "so close as to approach that of privity, if not completely one with it."£ 174 N.E. at 446. In Ultramares, on the other hand, the plaintiff factor was to the accountant merely one of an "indeterminate class of persons who . . . [*447] might deal with the [corporation] in reliance on the audit."£ Id.£ To find a duty in these circumstances would "expose accountants to a liability in an indeterminate [***30] amount for an indeterminate time to an indeterminate class."£ Id. 174 N.E. at 444. n3

n3 The attempt to circumscribe the potentially limitless range of economic harm in negligent misrepresentation cases has been the raison d' etre for the requirement of duty. See F. Harper, F. James, and O. Gray, The Law of Torts, § 7.6, at 406-12 (2d. ed. 1986).  Our decision in Holt was thus in some measure anomalous in requiring a duty when the risk was not economic harm but rather personal injury. As we stated in Jacques, the determinant of liability in cases involving risk of personal injury ordinarily is not duty but rather foreseeability.  307 Md. at 534-35, 515 A.2d 756.

   In International Products Co. v. Erie R. Co., 244 N.Y. 331, 155 N.E. 662 (1927), a case decided by the New York Court of Appeals in the interim between Glanzer and Ultramares, a bailee who negligently informed his bailor where the latter's goods [***31] were stored knowing that the bailor's inquiry was made for insurance purposes, was held liable in negligent misrepresentation for the resulting loss.  In discussing the question of duty the court stated:
 
"Liability [for negligent misrepresentation] arises only where there is a duty, if one speaks at all, to give the correct information.  And that involves many considerations.  There must be knowledge, or its equivalent, that the information is desired for a serious purpose; that he to whom it is given intends to rely and act upon it; that, if false or erroneous, he will because of it be injured in person or property.  Finally, the relationship of the parties, arising out of contract or otherwise, must be such that in morals and good conscience the one has the right to rely upon the other for information, and the other giving the information owes a duty to give it with care.  An inquiry made of a stranger is one thing; of a person with whom the inquirer has entered, or is about to enter, into a contract concerning the goods which are, or are to be, its subject, is another."£ Id. 155 N.E. at 664 (citation omitted).

   [*448] That there may be the [***32] requisite special relationship or intimate nexus in an arm's length commercial transaction involving pecuniary loss only was clearly established in Martens Chevrolet v. Seney, supra. The sale of the automobile distributorship in that case was in every respect as much an arm's length, negotiated transaction between business adversaries as that involved here.  During the bargaining period preliminary to the signed contract of sale, the buyers informed the seller of their intention to continue the distributorship's operations [**793] and therefore needed accurate information concerning the past profitability of the enterprise.  In providing the buyers with a financial "trend sheet" containing inaccurate information which the seller had prepared, and in telling the buyers that they could rely upon it, the seller negligently misrepresented the true facts, thereby subjecting itself to liability for the tort of negligent misrepresentation.

   (1)

   The Duty of Care in this Case

   The court instructed the jury that the first of five elements of the tort of negligent misrepresentation required to be proved by a preponderance of the evidence was the existence of a duty [***33] of care owing from Weisman to Connors.  Judge Goudy told the jury that "negligence [was] doing something that a person using ordinary care would not do . . . or not doing something that a person using ordinary care would do."£ He defined "ordinary care" to mean "that caution, attention or skill a reasonable person would use under similar circumstances."

   We cannot conclude as a matter of law that the evidence before the jury was legally insufficient to permit it to find the existence of a duty of care upon Weisman at the time he made the representations to Connors concerning the proffered employment.  We think the jury could have found from the evidence that the circumstances under which the two men came together in precontractual negotiations created a sufficiently close nexus or relationship as to impose a duty on Weisman not negligently to make statements of [*449] present or past facts about FWC or the new position of executive vice president. The manifest purpose of the meeting between the two high level executives was for Weisman to impart, and Connors to digest, relevant and accurate information concerning FWC and the proposed new position which Weisman intended to create. [***34]

    That Connors had a great stake in receiving accurate information from Weisman is readily apparent; conversely, Weisman had to realize that negligence on his part in conveying such information could result in considerable economic harm to Connors.  Of course, it was Weisman's objective to "sell" Connors, prior to actual contract negotiations, on the wisdom of leaving his career employment at Ford and joining FWC.  In this regard, the face-to-face precontractual discussions between Weisman and Connors more closely resemble the intimacy of the Glanzer parties than the remoteness of the Ultramares relationship.  As in Glanzer, Weisman could reasonably foresee the probable consequences of negligence in his negotiations with Connors.  And there was no question as in Ultramares, of "liability in an indeterminate amount for an indeterminate time to an indeterminate class."

   As we see it, nothing in Jacques mandates the conclusion, as a matter of law, that no special relationship or intimate nexus existed during the precontractual negotiations between Weisman and Connors which led to the execution of the employment contract. Undertaking to induce Connors to accept employment [***35]with FWC in the circumstances of this case may be likened to the sellers' representations in Martens, prior to entering into a contract of sale, that the distributorship would be profitable, as evidenced by the negligently prepared financial trend sheet.  We cannot distinguish Martens on the ground suggested by Weisman, namely, that the special relationship found to exist between the parties in that case was because the seller affirmatively assumed the role of accountant in supplying financial information to the buyer. That such information is most often provided by accountants does not mean that the seller in [*450] Martens assumed the role of accountant. Indeed, the existence of a special relationship between the parties negotiating the type of high-level, long-term employment contract involved here -- particularly where the parties will be working closely in succeeding years -- is more plausible than between parties selling and buying an automobile distributorship, who may never see each other again.

   To support his view that no duty of care was shown to exist in this case, Weisman relies upon Texasgulf Inc. v. United Gas [**794] Pipe Line Co., 471 F.Supp. 594 (D.D.C.1979), [***36] and Western Energy, Inc. v. Georgia-Pacific Corp., 55 Or.App. 138, 637 P.2d 223 (1981). We have considered these cases, but do not find them persuasive.  Both are based on Louisiana law which has adopted a strict view of the duty requirement that is not consonant with our Martens decision.  See Devore v. Hobart Mfg. Co., 367 So.2d 836 (La. 1979). Cases from other jurisdictions, like Martens, have imposed a duty of care on parties negotiating at arm's length.  New Hampshire has a long tradition in this regard.  See, e.g., Weston v. Brown, 82 N.H. 157, 131 A. 141 (1925) (negligent misrepresentation in sale and purchase of farm held actionable); Manock v. Amos. D. Bridge's Sons, 86 N.H. 411, 169 A. 881 (1934) (defendant's misrepresentations that it had insurance in negotiations to hire truck and driver held actionable); Duffy v. Lindgren, 117 N.H. 521, 374 A.2d 1175 (1977) (negligent misrepresentation by property owner that he carried insurance covering tree trimmer in the event of injury); Perkio v. Prunier, 121 N.H. 871, 436 A.2d 72 (1981) [***37] (negligent misrepresentations that parcel was free from encumbrances in negotiation of real estate contract held actionable). See also Giant Food v. Ice King, 74 Md.App. 183, 536 A.2d 1182 (1988) (finding that a buyer of ice owed a duty to give correct information to the ice supplier because a "special relationship" existed between the parties by reason of communications extending over seven months); Ward Development Co. v. Ingrao, 63 Md.App. 645, 493 A.2d 421 (1985) (negligent misrepresentations by real estate developer and several realtors to property [*451] owners in connection with the development and sale of property); Haynes v. Cumberland Builders, Inc., 546 S.W.2d 228 (Tenn.Ct.App.1976) (holding that a defendant can be held liable in business transactions for negligent misrepresentations).

   We thus hold that the requisite privity of contract or its equivalent essential to the establishment of a tort duty of care, as required by Martens and Jacques, was an issue properly submitted to the jury on the evidence adduced at the trial.

   (2)

   Other Elements of the Tort

   We next consider [***38] whether legally sufficient evidence was adduced before the jury to establish the remaining elements of the tort, i.e., whether Weisman negligently asserted false statements of past or present facts, intending that Connors act upon them, knowing that Connors would probably rely on the representations; and whether Connors was justified in relying upon the representations and thereby suffered damage proximately caused by Weisman's negligence.

   As earlier observed, among the representations made by Weisman, the Court of Special Appeals identified four as "critical," namely, "(1) that Connors would have broad executive responsibilities with regard to FWC in all aspects relating to the automobile business; (2) that he would not be simply the general manager of MAT; (3) that FWC would replace the $200,000 life insurance policy paid for by Ford; and (4) that Connors would receive equity participation in all new FWC ventures relating to the automobile business, and that the value of those ownership interests would more than offset the pension and other benefits that Connors would forfeit by leaving Ford."£ 69 Md.App. at 746-47, 519 A.2d 795. Two other representations [***39] made by Weisman, which were alleged to have induced Connors to leave Ford and accept the position at FWC, also went to the jury, viz: (1) that Weisman told Connors that FWC and MAT had a secure franchise relationship with the Toyota [*452] organization and (2) that Weisman told Connors that he had nothing more serious than "communications problems" with McCurry.

   The trial judge instructed the jury that if it found the existence of a duty of care, it had to determine whether Weisman was negligent in asserting to Connors "a false statement of a past or present material fact."£ As to this element, the court told the jury that a fact "is what is happening, something in existence at that time, and . . . an intention can be a material fact."£ The court next instructed that the jury could, but need not, find that "certain representations" [**795] made by Weisman, which Connors claimed were false, "dealt with that which was going to happen in the future."£ He said that "[o]pinions or judgments are ordinarily not sufficient to support either a negligent misrepresentation or a fraud case [,] [e]ven if [they] turn[] out to be wrong."£ The court then said that if the jury found that "any of the statements" [***40] made by Weisman "were really opinions or judgments by the defendant about events in the future" and would have been so understood by a reasonable person, then the jury must find for Weisman.  Next, the jury was instructed that a statement "concerning the speaker's intention to do or not do something in the future may be a misrepresentation only if the speaker in fact was lying . . . and had no intention at the time he spoke to act as he said he would."

   The court further instructed the jury:
 
"If a person truly states his intention to do or not do something and later changes his mind and acts differently, such statement about his intention is not a misrepresentation . . . of a present fact.

   ". . . [I]n the case of any statements made by the defendant about [his] intentions for future actions, you may find these statements were misrepresentations only if you find at the time they were made . . . they had no intention of doing that which they said they were going to do.  Or had an actual intention to do something they misrepresented saying they were not going to do."
 
[*453] Before instructing on the elements of the fraud count, the court told the jury that it could not find [***41] both fraud and negligent misrepresentation. Fraud, it said, was "much the same as negligent misrepresentation," the difference being "in the intent" -- that the falsity of the representation of past or present fact was "either known to the speaker or the misrepresentation was made with such a reckless indifference to truth as to be equivalent to actual knowledge."£ And further, the court instructed, the representation must have been made "for the purpose of defrauding the person claiming to be injured thereby."

   The court declined to instruct the jury as Weisman requested that, both as to the fraud and negligent misrepresentation counts, there was no evidence of Weisman's mental state at the time of the precontractual representations, which was legally sufficient to prove the elements of the tort.  Specifically, as to the reliance element of the tort, the court instructed the jury that Connors "can't be justified in acting [upon Weisman's representations] if the plain words of the contract are to the contrary."£ Weisman sought a further instruction that
 
"under the facts and the evidence in this case each of the allegations of negligent misrepresentation as well as fraud are in [***42] conflict with the plain language of the contract, and, therefore, as a matter of law, . . . there should have been an instruction . . . [that] the matter of the MAT general manager, the matter of the equity ventures, the matter of more than compensated or made whole and the matter of the McCurry discharge or retention . . . are in conflict with the plain language of the contract, and the jury should have been so instructed."
 
The court did not modify its charge to the jury.

   (a) First Four Alleged Misrepresentations

   As already indicated, Weisman represented that Connors would have broad executive responsibility with FWC, that he would not be general manager, that he would receive a $200,000 life insurance policy, and would also receive equity [*454]participation in all new FWC ventures. These representations arguably may be characterized in different ways.  The Court of Special Appeals characterized them as statements of objective fact -- as descriptions of an employment position -- "what the job would be and what it would pay."£ (Emphasis in original) 69 Md.App. at 747, 519 A.2d 795. Weisman, in stark contrast, characterizes the representations [***43] as mere statements of expectation, prediction, or future intention.  Connors characterizes the alleged misrepresentations yet another way.  In his view they are statements of present intention.

   [**796] We are unable to agree with the characterization on which the Court of Special Appeals based its decision.  Of course, an occupational position may be so well defined and established as to take on an objective existence of its own, apart from the expectations or intentions of the employer. There is no evidence in this case, however, that Connors' future executive vice president's position had this definite and objective quality.  Indeed, the evidence shows that the position had been newly created by Weisman, and that the precise nature of its duties was to a great extent dependent on Weisman's wishes.  In this regard, the contract, in paragraph 1, stated that it was "expected" that Connors would have "broad responsibility for the entire operations of the Company's Automotive Division."£ The duties of the position were thus not a matter of objective certainty.  Weisman's representations, therefore, were not mistaken misdescriptions of the contours of Connors' future executive vice president's [***44] position.

   We think, however, that Weisman's characterization of the four representations as mere statements of expectation, prediction, or future intention is also incorrect.  Weisman does not take into account the degree of control which he had over the future action or intention he was "expecting."£ This distinction between predictions or expectations of external events not within the speaker's control and statements about what the speaker will himself do in the future is a clear one, well settled in the relevant case law.  See [*455]Harper, James, and Gray, The Law of Torts § 7.10, at 442-51 (2d ed. 1986).  The cases cited by Weisman are not contrary.  For example, in Gontrum v. City of Baltimore, 182 Md. 370, 35 A.2d 128 (1943), the representations at issue concerned statements made by one Glover that a certain city street would soon be opened.  We stated the general rule that a cause of action in fraud could not be predicated on
 
"statements as to future events, as to expectations and probabilities, as to what will be or is intended to be done in the future, or mere expressions of opinion about what will occur in the future."£ Id. [182 Md.] at 374, 35 A.2d 128.
 
[***45] We noted specifically, however, that Glover had no control over when the street would be opened and thus any statement he made could have only been an expression of opinion.  Id. [182 Md.] at 374-75, 35 A.2d 128. In the present case, Weisman had full control over the nature of the duties that Connors would be assigned and whether he would receive equity participation in Weisman's other business ventures.

   We therefore think the four representations are properly characterized as statements of Weisman's present intention.  Characterizing them in this manner, however, does not end the inquiry; rather, we must consider Weisman's contention that, as a matter of law, he could not negligently misrepresent his own present intention.
 
   As to all six of the alleged misrepresentations involved in the tort counts, Connors' evidence at trial was principally directed to establishing that they were fraudulently made -- that Weisman purposely misstated his actual intentions and expectations, believing one thing and deliberately saying another to induce Connors to leave Ford and join FWC.  In rejecting this claim, and finding Weisman liable under the negligent misrepresentation [***46] count, the jury necessarily concluded that Weisman's representations were not fraudulent but instead had been negligently made.

   [*456] In the making of representations, "the negligence may occur either in obtaining or in communicating the information" imparted as to past or present fact.  Harper, James, and Gray, supra, § 7.6, at 406.  That the misrepresentation of one's own intention may constitute the misrepresentation of a present fact is clear.  Levin v. Singer, 227 Md. 47, 63-64, 175 A.2d 423 (1961); Harper, James, and Gray, supra, § 7.10, at 445-46.  Thus, the negligent failure to properly communicate one's current intentions could be a negligent misrepresentation of a present fact.

   As to the first four alleged misrepresentations, there was no evidence that Weisman meant, but mistakenly failed, to communicate intentions or expectations [**797] other than those that he did communicate.  In other words, there was no legally sufficient evidence from which the jury could have drawn a rational inference that Weisman, during his two precontractual meetings with Connors, mistakenly expressed intentions or expectations which were at variance with his [***47] true state of mind at the time the representations were made. Demonstrative of the absence of mistake on Weisman's part is the fact that each of these representations found expression, exact or approximate, in the negotiated contract of employment.  It was thus error to permit the jury to consider these representations in its deliberations on the negligent misrepresentation count; as to these representations, they should have been withdrawn from the jury's consideration. n4

n4 Because each of the first four representations was subsequently grounded in terms of the written employment contract, it may be questioned whether they could ever serve as the basis for an action in negligent misrepresentation. However, in view of our disposition of these representations, we need not address that concern.  We nevertheless note that the availability of both tort and contract actions for the same kind of harm has engendered considerable confusion and complexity.  See Prosser and Keeton on the Law of Torts § 92, at 655 (5th ed. 1984).  One thorny question has concerned the effect that the parol evidence rule has on tort actions when the tort and contract actions are based on the same set of facts.

   In Creamer v. Helferstay, 294 Md. 107, 448 A.2d 332 (1982), we reserved judgment on whether the parol evidence rule precluded a tort action based on a negligent misrepresentation that contradicted a term of the contract between the parties to the tort suit.  294 Md. at 119 n. 13, 448 A.2d 332. We there affirmed the related principle that in a suit for rescission of a contract the parol evidence rule precludes the granting of relief for unintentional representations preceding the contract which conflict with the terms of the contract.
 
   Some authorities indicate that oral precontractual representations cannot support an action in negligent misrepresentation if the representation varies or contradicts the terms of a subsequent written contract.  See Call Carl, Inc. v. BP Oil Corp., 554 F.2d 623, 630 (4th Cir.1977); Hill, Damages for Innocent Misrepresentation, 73 Colum.L.Rev. 679, 717-18 (1973). No cases, however, address the converse question of the effect to be given in a negligent misrepresentation case to precontractual representations that are consistent with later contract terms.

   [*457] [***48] (b) The Two Remaining Representations

   As to the other two alleged misrepresentations, the stability of MAT's franchise with the Toyota organization and the state of Weisman's relations with McCurry were statements of present facts; they did not involve Weisman's intentions or expectations and neither representation found expression in the terms of the employment contract. As to the first of these representations, the evidence disclosed that in response to Connors' inquiry concerning the "status of the franchise," Weisman replied that "there were no problems, that they were doing a good job" and that "everything was favorable."£ As to the second representation, it was Connors and not Weisman who "brought up [the subject of] McCurry."£ According to Connors, Weisman said McCurry was "doing a fine job for me"; that while McCurry was an "excellent sales manager," this was "the limit of his abilities"; that Weisman had "communications problems" with McCurry "relate[d] to the fact that [McCurry is] an automobile man, I'm not"; and that they had "trouble conversing about . . . the automobile business."£ Connors acknowledged that he had heard that "McCurry had a reputation . . . of [***49]having a very strong temper . . ., a very difficult man to work with and [McCurry] had had problems at Chrysler."£ Connors said that Weisman told him that [*458] McCurry's "status . . . whether he stays or goes is entirely up to you."£ In addition, Connors said that Weisman told him: "If you join us with your background that's similar to McCurry that you'll get along fine."

   We think there was evidence before the jury, which was legally sufficient to permit it to find that these two representations were false, that they were negligently asserted, that Weisman intended that his representations would be acted upon by Connors, that Weisman had reason to believe that Connors would probably rely on these statements, that Connors was justified in relying upon them, and that he thereby sustained damage as a proximate result of Weisman's negligence.  In this regard, while the jury rejected Connors' [**798] claim that the representations were fraudulently made, this did not preclude it from finding that the representations were so carelessly made as to violate the duty of ordinary care imposed upon Weisman under the circumstances. n5

n5 Under Maryland law a negligence case must be submitted to the jury if there be any evidence, however slight, legally sufficient as tending to prove negligence, the weight and value of that evidence being left to the jury; that to meet the test of legal sufficiency, the party having the burden of proving another guilty of negligence cannot sustain this burden by offering a mere scintilla of evidence amounting to no more than a surmise, possibility, or conjecture of negligence but such evidence must be of legal probative force and evidential value.  Curley v. General Valet Service, 270 Md. 248, 264, 311 A.2d 231 (1973); Fowler v. Smith, 240 Md. 240, 246-47, 213 A.2d 549 (1965). The test of legal sufficiency "is whether the evidence serves to prove a fact or permits an inference of fact that could enable an ordinarily intelligent mind to draw a rational conclusion therefrom in support of the right of the plaintiff to recover."£ Stein v. Overlook Joint Venture, 246 Md. 75, 81, 227 A.2d 226, 230 (1967).

   [***50] In so concluding, we note Weisman's argument that in view of paragraph 6 of the contract, Connors could not justifiably rely on the representation concerning the stability of the MAT franchise. Paragraph 6 made provision for the contingency that the business of MAT might be sold during the term of Connors' employment, in which event he would continue to receive contract benefits for two additional [*459] years.  There was testimony from Connors that the doubts he had that lead him to negotiate for paragraph 6 did not concern MAT's relations with Toyota but rather the possibility that Weisman, who was then in his 70's, might die.  It was Connors' testimony that he relied on Weisman's assurances and had he known relations were tense and uncertain he would not have risked accepting employment with FWC.  If the jury believed Connors, the element of justifiable reliance could have been found.

   As to the fifth element of the tort -- whether Connors sustained damage as a proximate cause of the two misrepresentations -- we think there was evidence from which the jury, acting under the court's instructions, could have so found. Moreover, we are unable to say, as a matter of law, that Connors [***51] suffered no damage as a result of these misrepresentations. In determining whether the damage element of the tort was established by the evidence, we do not set off the amount of that damage by the amount received under the contract count; the tort and contract actions are separately considered for purposes of ascertaining whether the damage element of the tort was satisfied.  As to the nexus between the two misrepresentations, and any resulting damage to Connors thereby caused, the evidence discloses that MAT's franchise problem was favorably resolved shortly after Connors began his employment with FWC; and that McCurry's departure from MAT in November of 1981 brought that so-called problem to an end.  Nevertheless, it was for the jury to determine whether Connors sustained economic loss which was attributable to the two negligent misrepresentations and, if so, how much. n6

n6 The trial court instructed the jury that if it found the tort of negligent misrepresentation to be established by the evidence, it could "consider amounts actually lost by Mr. Connors as a result of the negligent misrepresentation," i.e., those amounts which logically flowed from the natural and probable consequences of Weisman's negligent conduct, including "salary, bonuses, deferred compensation . . . percs . . . earnings if he remained at Ford for such time as you find he would have reasonably remained . . . reduced by that which he received from Weisman."£ Weisman unsuccessfully excepted to this instruction on the ground that it failed to define the proper rule governing damages in negligent misrepresentation cases, "whether out-of-pocket or benefit-of-the-bargain or the flexible rule."£ It is evident by the amount of the jury's verdict that it assumed that Connors would have remained at Ford until mandatory retirement at age 65; consequently, it appeared to award him the difference between his total compensation package at Ford had he remained until retirement and the amount of his total compensation at FWC, as fixed by the employment contract.

   Upon retrial of the case, assuming arguendo a determination of liability against Weisman, the trial court will undoubtedly focus on whether the flexibility rule of damages as set forth in Hinkle v. Rockville Motor Co., 262 Md. 502, 278 A.2d 42 (1971), is an appropriate theory of damages in negligent misrepresentation cases.  See, e.g., Ward Development Co. v. Ingrao, 63 Md.App. 645, 493 A.2d 421 (1985). The trial court will also want to consider, whatever rule of damages it applies, the period of time for which damages could be recovered, and whether the claimed damages are attributable to Weisman's negligent misrepresentations or to another nonactionable cause unrelated to Weisman's misrepresentations. See Call Carl, Inc. v. BP Oil Corp., 554 F.2d 623 (4th Cir.1977); Empire Realty Co. v. Fleisher, 269 Md. 278, 305 A.2d 144 (1973); Matthews v. Federal Land Bank of St. Louis, 718 S.W.2d 220 (Mo.App.1986); and Albrant v. Sterling Furniture Co., 85 Or.App. 272, 736 P.2d 201 (1987).

   [*460] [***52] [**799] We cannot know, of course, which of the six representations relied upon by Connors were found to be established by the jury in reaching its verdict on the negligent misrepresentation count.  As the jury was improperly permitted to consider four of the representations, we think a new trial must be ordered limited to the two present fact representations that we have found were supported by legally sufficient evidence.  The jury's award of $221,900 for the breach of the written contract and its verdict on the fraud count are not in any way affected by our decision today.

   AS TO THE NEGLIGENT MISREPRESENTATION COUNT OF THE COMPLAINT: JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT FOR RULING ON THE ISSUES RAISED BY THE APPELLEE ON CROSS APPEAL AND, THEREAFTER, THE COURT OF SPECIAL APPEALS IS DIRECTED TO REMAND THE CASE [*461] TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR A NEW TRIAL; COSTS TO ABIDE RESULT. 

The HOME INSURANCE COMPANY v. UNITED STATES FIRE INSURANCECOMPANY and Porter Brothers, Inc. 
No. 175, September Term, 1987
 
Court of Appeals of Maryland
 
312 Md. 394; 540 A.2d 123; 1988 Md. LEXIS 45

 April  13, 1988

   PRIOR HISTORY:  
[**1] Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals, Eugene M. Lerner, Judge.

COUNSEL: Daniel W. Whitney (David M. Buffington and Semmes, Bowen & Semmes, Baltimore), all on brief, for appellant.

   James R. Eyler (Mauricio E. Barreiro, Miles & Stock-bridge; Alva P. Weaver, III, and Weaver, Bendos & Clinnin, Baltimore), all on brief, for appellee.

JUDGES: Murphy, C.J., and Eldridge, Cole, Rodowsky, McAuliffe, Adkins and Blackwell, JJ.

OPINIONBY: PER CURIAM

OPINION: [*394] ORDER

   The appeal in this case having been taken in violation of the provisions of Maryland Rule 2-602 (formerly Rule 605), it is this 13th day of April, 1988

   ORDERED, by the Court of Appeals of Maryland, that the appeal be, and it is herewith, dismissed.  See Washington Sub. San. Com'n v. Frankel, 302 Md. 301, 487 A.2d 651 (1985); Potter v. Bethesda Fire Dept., Inc., 302 Md. 281, 487 A.2d 288 (1985); East v. Gilchrist, 293 Md. 453, 445 A.2d 343 (1982); Biro v. Schombert, 285 Md. 290, 402 A.2d 71 (1979); Carl Messenger Service v. Jones, 72 Md.App. 1, 527 A.2d 763 (1987); [**2] Harford Sands, Inc. v. Levitt & Sons, [*395] 27 Md.App. 702, 343 A.2d 544, cert. denied, 276 Md. 744 (1975); and it is further

   ORDERED that costs be paid by the appellant.  Mandate to issue forthwith. 

John Henry SHEPPARD v. STATE of Maryland 
No. 16, September Term, 1987
 
Court of Appeals of Maryland
 
312 Md. 118; 538 A.2d 773; 1988 Md. LEXIS 34

 March  11, 1988

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County - Judge H. Chester Goudy, Jr.).

DISPOSITION: JUDGMENT OF COURT OF SPECIAL APPEALS AFFIRMED.  PETITIONER TO PAY COSTS.

CORE TERMS:  accomplice, withdrawal, assault, principal offense, complicity, accessory, intent to murder, armed robbery, fired, terminate, furtherance, probable consequence, getaway car, offender, shot, criminal transaction, second degree, apprehension, conspiracy, police officers, detective, abetted, robbery, aided, mile, Substantive Criminal Law, Law of Crimes, Criminal Law, offense committed, aider and abettor

COUNSEL: Laurie I. Mikva, Assistant Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, Maryland, for appellant.

   John S. Bainbridge, Jr., Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on the brief), Baltimore, Maryland, for appellee.

JUDGES: Murphy, C.J., and Cole, Rodowsky, McAuliffe, Adkins, and Blackwell, JJ.

OPINIONBY: BLACKWELL

OPINION: [*119] [**773] When two or more persons participate in a criminal offense, each is ordinarily responsible for the acts of the [*120] other done in furtherance of the commission of the offense and the escape therefrom.  Veney v. State, 251 Md. 159, 246 A.2d 608 (1968), cert. denied, 394 U.S. 948, 89 S.Ct. 1284, 22 L.Ed.2d 482 (1969); Fabian v. State, 235 Md. 306, 201 A.2d 511 (1964), cert. denied, 379 U.S. 869, 85 S.Ct. 135, 13 L.Ed.2d 72 (1964). We granted certiorari to determine [**774] whether the apprehension [***2] of one of the parties to an offense during the escape from the commission of the offense terminates that individual's liability as an accomplice. For the reasons hereinafter expressed, we conclude that Petitioner's involuntary withdrawal from the criminal transaction does not terminate his liability as an accomplice.

    I

   Around 11:15 a.m. on February 1, 1985, Petitioner John Henry Sheppard ("Sheppard") and two other men, one of whom was armed, robbed the two women attending the cash registers at Ye Olde Farm Spirit Shoppe in Anne Arundel County.  As the three men ran from the store to a getaway car operated by a fourth man, the armed offender fired at a deliveryman who was in the store during the robbery and who had pursued the three men as they fled the store. About two minutes after the robbery and within a mile of the store, the getaway car was sighted by a detective in an unmarked police vehicle.  The detective radioed for assistance and a minute later two marked cars as well as the detective were following the getaway car. After following the car for about a mile until it had reached a less populated area, the police activated their emergency equipment and the getaway car pulled [***3] over to the side of the road.  Over a public address system, one of the officers ordered the occupants of the car to put their hands in plain view.  When the occupants of the car raised their hands above their heads, the officer ordered the driver of the car to turn off the ignition and to throw the keys out of the window. Rather than surrender control of the vehicle, the driver accelerated the car and the police fired at the vehicle [*121] deflating the rear tires and exploding the rear window.  Disabled from the gunfire, the car collided with a parked pickup truck about a quarter of a mile away.  Sheppard was apprehended by the police while attempting to climb out of the rear window of the car.  The three other men ran across a field heading towards a wooded area.  Two of the police officers, Officers Ballam and Falls, pursued the three men and one of the three men fired several shots at the officers during the chase.  Moments later, Ballam and Falls apprehended two of the three men.

   In a jury trial in the Circuit Court for Anne Arundel County (Goudy, J.), Sheppard was convicted of two counts of armed robbery, use of a handgun in the commission of a crime of violence, and three [***4] counts of assault with intent to murder. n1£ Of the three assault with intent to murder convictions, one was based on the shot fired at the deliveryman and the other two were based on the shots fired at Officers Ballam and Falls.  Sheppard appealed the latter two assault with intent to murder convictions to the Court of Special Appeals arguing that he was not criminally responsible for the offenses because he was in police custody when the shots were fired by the unapprehended cofelon.  In an unreported, per curiam opinion, the Court of Special Appeals concluded that Sheppard's apprehension by the police did not terminate his liability as an accomplice and affirmed the convictions.  We now affirm the judgment of the intermediate appellate court.

n1 Sheppard was also convicted of ten other offenses which were merged at sentencing.

   II

   Sheppard challenges the convictions on two grounds.  Sheppard's initial contention is that he was not an accomplice to the offenses against the police officers because he did not aid [***5] and abet the commission of the crimes.

   As a general rule, when two or more persons participate in a criminal offense, each is responsible for the commission [*122] of the offense and for any other criminal acts done in furtherance of the commission of the offense or the escape therefrom.  Veney v. State, supra, 251 Md. at 174, 246 A.2d at 617; Fabian v. State, supra, 235 Md. at 317, 201 A.2d at 517. See generally 2 W. LaFave & A. Scott, Jr., Substantive Criminal Law §§ 6.6-6.8 (1986); W. Clark & W. Marshall, Law of Crimes §§ 8.00-8.15 (1958); 1 Wharton, Criminal Law [**775]§§ 29-38 (14th ed. 1978, 1987 Cum. Supp.).  For each offense committed, all participants but the actual perpetrator (or perpetrators) are "accomplices."

   An accomplice is a person who, as a result of his or her status as a party to an offense, is criminally responsible for a crime committed by another.  See L. Hocheimer, Crimes and Criminal Procedure § 21 at 24 (2d ed. 1902); 2 W. LaFave & A. Scott, Jr., supra, § 6.7 at 136; W. Clark & W. Marshall, supra, § 8.00 at 505; 1 Wharton, supra, § 38 at 191.  This responsibility, [***6] known as accomplice liability, takes two forms: (1) responsibility for the planned, or principal offense (or offenses), and (2) responsibility for other criminal acts incidental to the commission of the principal offense. W. Clark & W. Marshall, supra, § 8.08 at 531.  In order to establish complicity for the principal offense, the State must prove that the accused participated in the offense either as a principal in the second degree (aider and abettor) or as an accessory before the fact (inciter). n2£ Id.£ In order to establish complicity for other crimes committed during the course of the criminal episode, the State must prove that the accused participated in the [*123] principal offense either as a principal in the first degree (perpetrator), a principal in the second degree (aider and abettor) or as an accessory before the fact (inciter) and, in addition, the State must establish that the charged offense was done in furtherance of the commission of the principal offense or the escape therefrom. Id.; Veney v. State, supra, 251 Md. at 174, 246 A.2d at 617; Fabian v. State, 235 Md. at 317, 201 A.2d at 517.

n2 [***7] An accessory after the fact (criminal protector) is no longer treated as a party to the felony.  As we explained in Osborne v. State, 304 Md. 323, 330, 499 A.2d 170, 173 (1985) (quoting W. LaFave & A. Scott, Jr., Handbook on Criminal Law § 66 at 524 (1972)):

   "This development whereby the accessory after the fact is dealt with in a distinct way is a most appropriate one and does not conflict at all with the modern tendency to abolish the distinctions between principals in the first degree, principals in the second degree, and accessories before the fact.  The latter three types of offenders have all played a part in the commission of the crime and are quite appropriately held accountable for its commission.  The accessory after the fact, on the other hand, had no part in causing the crime; his offense is instead that of interfering with the processes of justice and is best dealt with on those terms."
 
 See also Watson v. State, 208 Md. 210, 220, 117 A.2d 549, 554 (1955).

[***8]

   In the case at bar, the principal offense was the armed robbery of the two women at the liquor store.  The aggravated assaults against the police officers, perpetrated during the escape from the commission of the robbery, were secondary or incidental offenses.  Thus, contrary to Sheppard's contention that his responsibility for the aggravated assaults is dependent upon proof that he aided and abetted the commission of those offenses, Sheppard's complicity rests on the fact that he aided and abetted the armed robbery. n3£ Accordingly, we find no merit to this contention.

n3 For the armed robbery charges, the jury was instructed on the law of aiding and abetting.  For the assault with intent to murder charges, the jury was instructed, in relevant part and with emphasis added, that:

   "There is no requirement that the accused actually aided and abetted in the commission of the assault with intent to murder itself.  It is sufficient that the accused being present -- he's got to be present -- did aid and abet in the criminal transaction of the armed robbery and if you further find that the assault with intent to murder was the natural and probable consequence of the armed robbery, the defendant may not escape legal liability for the acts that occur within that same continuous transaction."
 
The "natural and probable consequence" language has been disapproved by Professors LaFave & Scott and by the authors of the Model Penal Code.  W. LaFave & A. Scott, Jr., Substantive Criminal Law § 6.8(b) (1986); Model Penal Code § 2.06 (1985) and accompanying commentary.  See also Maryland Proposed Criminal Code § 20.00 (1972).  As stated in the Model Penal Code § 2.06 at 312 n. 42:

   "To say that the accomplice is liable if the offense committed is 'reasonably foreseeable' or the 'probable consequence' of another crime is to make him liable for negligence, even though more is required in order to convict the principal actor.  This is both incongruous and unjust; if anything the culpability level for the accomplice should be higher than that of the principal actor, because there is generally more ambiguity in the overt conduct engaged in by the accomplice, and thus a higher risk of convicting the innocent."
 
While we disagree that the natural and probable consequence rule predicates liability on a negligence mens rea, we do agree that tort standards of foreseeability have no place in criminal complicity law.  Thus, consistent with the rules of complicity in conspiracy law and under the felony murder doctrine, we prefer the language "in furtherance of the commission of the offense and the escape therefrom."£ See Campbell v. State, 293 Md. 438, 444 A.2d 1034 (1982) (felony murder); W. Clark & W. Marshall, Law of Crimes § 9.00 (1958) (conspiracy); R. Perkins & R. Boyce, Criminal Law Ch. 6 § 5(F) (3d ed. 1982) (same).

   [***9] [**776] Sheppard's second contention is that his apprehension by the police constitutes a withdrawal from the criminal transaction [*124] and therefore terminates his liability as an accomplice.

   In P. Robinson, Criminal Law Defenses § 81(a) at 346-47 (1984, 1987 Cum.Supp.) the author explains:

   "Under normal liability rules, an offense is complete and criminal liability attaches and is irrevocable as soon as the actor satisfies all the elements of an offense.  Thus, where the offender takes property of another with the intention to permanently deprive him of it, but later changes his mind and returns it, he is nonetheless guilty of theft.  But where the offense is an inchoate offense -- attempt, conspiracy, solicitation, or facilitation -- or where liability is based on a complicity theory, the law may give the offender the opportunity to escape liability, even after he has satisfied the elements of these offenses, by renouncing, abandoning, or withdrawing from the criminal enterprise."
 
On withdrawal from the criminal enterprise, Professors LaFave and Scott state:

   "One who has given aid or counsel to a criminal scheme sufficient to otherwise be liable for the offense as an [***10] accomplice may sometimes escape liability by withdrawing [*125] from the crime.  A mere change of heart, flight from the crime scene, or an uncommunicated decision not to carry out his part of the scheme will not suffice.  Rather, it is necessary that he (1) repudiate his prior aid, or (2) do all that is possible to countermand his prior aid or counsel, and (3) do so before the chain of events has become unstoppable."
 
W. LaFave & A. Scott, Jr., supra, § 6.8(d) at 162 (footnotes omitted).  With respect to the necessity of a voluntary withdrawal from the criminal enterprise, Professor Lanham, in his article Accomplices and Withdrawal, 97 L.Q. Rev. 575, 575-79 (1981), writes:

   "Plowden implies that repentance is a necessary condition for effective withdrawal and this condition is stated expressly by Coke and Hale.  This suggests that the withdrawal should be for a commendable motive or at least should be a free one rather than one forced upon the accomplice.

   * * *
 
The law should encourage persons who participate in criminal arrangements to change their mind [sic] and take steps to prevent the crime reaching consummation but the law does not need [***11] to hold out a similar incentive to those who are in effect forced to pull out of the criminal enterprise."
 
To the same effect, see W. Clark & W. Marshall, supra, § 8.11 at 537-38.

   We think, in the circumstances of this case, that Sheppard's arrest was an involuntary withdrawal from the criminal enterprise and therefore ineffective to terminate his liability as an accomplice. See State v. Amaro, 436 So.2d 1056 (Fla.Dist.Ct.App. 1983); Commonwealth v. Doris, 287 Pa. 547, 135 A. 313 (1926).

   JUDGMENT OF COURT OF SPECIAL APPEALS AFFIRMED.  PETITIONER TO PAY COSTS. 

Peter CHU et al. v. ANNE ARUNDEL COUNTY, Maryland 
No. 40, September Term, 1987
 
Court of Appeals of Maryland
 
311 Md. 673; 537 A.2d 250; 1988 Md. LEXIS 30

 February  16, 1988

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals, Circuit Court for  Anne Arundel  County, Judge James C. Cawood, Jr., Judge.

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED.  COSTS TO BE PAID BY THE PETITIONERS.

CORE TERMS:  exclusionary rule, probable cause, search warrant, Bouse Act, seizure, seized, grand jury, seized property, misdemeanor, audit, illegal search and seizure, legislative purpose, wiretapping, believing, restored, federal constitutional, prosecutor, repealed, search and seizure, admissible, Fourth Amendment, statutory construction, affidavit supporting, illegally seized, investigator, evolving, suppress, affiant, embrace, deter

COUNSEL: Argued by Daniel F. Goldstein (Elizabeth M. Kameen, Brown & Goldstein and Andrew Radding, Blades & Rosenfeld, on the brief), all of Baltimore, Maryland, for appellant.

   Argued by Gary E. Bair, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on the brief), both of Baltimore, Maryland, for appellee.

JUDGES: Murphy, C.J., and Eldridge, Cole, Rodowsky, McAuliffe, Adkins and Blackwell, JJ.

OPINIONBY: RODOWSKY

OPINION: [*674] [**250] Maryland Code (1957, 1982 Repl. Vol., 1987 Cum. Supp.), Art. 27, § 551 comprises the subtitle on "Search Warrants" and, according to the codifier's catch line, deals with "[i]ssuance; contents; time of search, etc.; disposition of property seized."£ Section 551(a) provides, inter alia, for a civil proceeding for the return of property taken under a search warrant if "there is no probable cause for believing the existence of the grounds on which the warrant was issued. . . ."£ The petitioners in this case, Peter and Nancy Chu (the Chus), brought a § 551 civil action [***2] in which they advanced the theory that the statute incorporates, and expands with, judicial interpretations and applications of the [*675] fourth amendment to the Constitution of the United States.  [**251] This expanding construction, the Chus submit, includes the federal exclusionary rule applicable to the states as promulgated in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The Circuit Court for Anne Arundel County ordered the return of records seized from the Chus.  In Anne Arundel County v. Chu, 69 Md.App. 523, 518 A.2d 733 (1987), the Court of Special Appeals reversed and we granted the Chus' petition for certiorari.  We shall hold that the intermediate appellate court correctly rejected the construction of § 551 advanced by the Chus.

   Peter and Nancy Chu are dentists who practice their profession together from an office building in Odenton where they display a sign, "Odenton Dental Care."£ On November 1, 1985, an investigator for the State's Attorney for Anne Arundel County applied for a warrant to search the Chus' office premises for designated types of records relevant to an investigation [***3] which involved possible fraud on insurers of the costs of dental care.  In his affidavit supporting the application the investigator first presented certain information received from the representative of a commercial insurer.  The affidavit then stated:

   Based upon the above information and the assumption that a Maryland dentist would make substantial dental insurance claims to Maryland Blue Cross/Blue Shield, your affiant requested Maryland Blue Cross/Blue Shield to conduct an audit of the Odenton Dental Care, which was and is operated by Drs. Nancy and Peter Chu in September of 1985.

   Thereafter the affiant set forth information received from Maryland Blue Cross/Blue Shield.  The warrant was issued and executed on the day of the request.

   Approximately two months later the Chus moved for return of the seized records pursuant to § 551.  No criminal proceedings which the parties consider relevant to this case have ever been brought against the Chus, or either of them.  Nor is there any contention that, if all of the information contained in the affidavit in support of the search warrant [*676] is considered, there is any want of probable cause to support the warrant.

   As presented [***4] to us the argument in support of return of the property involves a number of steps.  The first step requires a legal determination that the reference to probable cause contained in § 551 embraces the exclusionary rule applied to deter state agents from violating the fourth and fourteenth amendments.  Next, it is submitted that the "requested" audit of the Chus by Maryland Blue Cross/Blue Shield was performed by an agent of the State of Maryland and that any purported consent to that audit had no legal effect.  Since the audit is said to have infringed the Chus' fourth and fourteenth amendment rights, all information obtained through the "requested" audit must be excised from the affidavit when reviewing it for probable cause. The final step requires concluding that, in redacted form, the affidavit fails to present probable cause to support issuance of the search warrant. Because we do not accept the first step of the Chus' submission we do not reach the factual and legal issues of the remaining steps in the argument.

   This case is one of statutory construction. The Chus do not argue that in proceedings under a § 551 petition for the return of seized property any federal constitutional [***5] exclusionary rule operates directly on evidence offered to justify the seizure or retention.  Rather, their position is that where the § 551 petition is predicated on an alleged want of probable cause to support the search warrant the concept of probable cause contained in § 551(a) must be regarded "as requiring interpretation in the light of evolving Fourth Amendment decisional law."£ To present and evaluate this argument more fully, we must first review the history of exclusionary rules at the federal level and in Maryland.

   In Lawrence v. State, 103 Md. 17, 63 A. 96 (1906), the defendant argued for the exclusion of certain evidence obtained in the warrantless search of a satchel he had left at a public hotel.  103 Md. at 32, 63 A. at 101. This Court interpreted the objection to be predicated on the manner in [*677] [**252]which the evidence was obtained.  The evidence seized in Lawrence included certificates for shares of stock in a gold mining company and was relevant to the scienter element of the false pretenses charge.  Quoting from Commonwealth v. Tibbetts, 157 Mass. 519, 32 N.E. 910 (1893), [***6] this Court said that "'[e]vidence which is pertinent to the issue is admissible although it may have been procured in an irregular or even an illegal manner.'"£ 103 Md. at 36, 63 A. at 103.

   In 1914 the Supreme Court first clearly espoused a rule excluding property seized in an unlawful search and seizure. The rule applied only to federal law enforcement officials.  See Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652. In 1928 this Court was urged to apply the Weeks's exclusionary rule to Maryland law enforcement officers but declined to do so in a four to three decision.  See Meisinger v. State, 155 Md. 195, 142 A. 190.

   The next year the General Assembly by Ch. 194 of the Acts of 1929 enacted an exclusionary rule limited to misdemeanors. This statute was known as the Bouse Act. As amended from time to time in particulars not here relevant, this statutorily based Maryland exclusionary rule remained part of the Maryland Code in Art. 35, "Evidence," until the Bouse Act was repealed in 1973.

   The statute with which we are concerned, § 551 of Art. 27, had its genesis [***7]in Ch. 749 of the Acts of 1939.  Its "central purpose . . . was to set out the requirements for obtaining a search warrant."£ In re Special Investigation No. 228, 54 Md.App. 149, 160, 458 A.2d 820, 826 (1983). The 1939 enactment went on to provide circumstances, including the lack of probable cause, under which property that had been seized under a warrant should be restored to the person from whom it was taken.  Section 551 in relevant part today reads:

   (a) Whenever it be made to appear to any judge . . . by written application signed and sworn to by the applicant, accompanied by an affidavit[s] containing facts within the personal knowledge of the affiant[s], that there is probable [*678]cause, the basis of which shall be set forth in said affidavit[s], to believe that any misdemeanor or felony is being committed by any individual or in any building, apartment, premises, place or thing within the territorial jurisdiction of such judge, or that any property subject to seizure under the criminal laws of the State is situated or located on the person of any such individual or in or on any such building, apartment, premises, place or thing, then [***8] the judge may forthwith issue a search warrant directed to any duly constituted policeman, or police officer authorizing him to search . . . and to seize . . . .  If, at any time, on application to a judge . . . it appears . . . that there is no probable cause for believing the existence of the grounds on which the warrant was issued . . . said judge must cause it to be restored to the person from whom it was taken.  In the discretion of the judge, an oral motion made in open court may be received at any time making application for the return of seized property if the application for return is based on the grounds . . . that there is no probable cause for believing the existence of the grounds on which the warrant was issued . . . .  If the judge grants the oral motion, the order of the court shall be in writing and a copy of the order shall be sent to the State's Attorney.  If the judge rejects the proffer on an oral motion and requires the person from whom the property was taken to proceed for return of the seized property by petition and an order to show cause to the police authority seizing the property and it is subsequently ordered that the property be restored to the person from [***9] whom it was taken, court costs shall not be assessed against the petitioner.

   After Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949) had held that the fourteenth amendment did not require the states to adopt an exclusionary rule applicable to evidence derived from an illegal search and seizure, the Legislature amended § 551 by Ch. 74 of the Acts of 1958.  As discussed, infra, the introductory form of that legislation would have provided [**253] an exclusionary rule [*679] which was unlimited with respect to the nature of the offense involved.  The General Assembly struck that proposed exclusionary rule from the bill before enactment.

   The 1961 landmark decision in Mapp v. Ohio, supra, overruled Wolf and extended to the states the requirement that evidence obtained by an unconstitutional search and seizure must be excluded from criminal prosecutions. As a result of Mapp the Maryland Legislature repealed the Bouse Act by Ch. 2 of the Acts of the First Special Session of 1973, as part of the project to revise the Maryland Code. n1

n1 Chapter 2 enacted the Courts and Judicial Proceedings Article.  That article includes certain sections from former Art. 35, "Evidence," but the Bouse Act, which had been §§ 5 and 6 of Art. 35, was not retained.  The General Revisor's Note to Title 10, "Evidence," of the Courts and Judicial Proceedings Article states that the "Bouse Act" is "Repealed" and comments, "[S]imilar statute held unconstitutional; see Mapp v. Ohio, 367 U.S. 643 [81 S.Ct. 1684, 6 L.Ed.2d 1081] (1961)."£ 1973 Md.Laws, 1st Sp. Session, at 332.

   [***10] This chronological review brings into sharp focus the initial hurdles which the Chus must clear for their argument to prevail. n2£ The Chus have brought a civil action against Anne Arundel County to regain possession of their records.  The county's defense is that the seizure was made pursuant to a search warrant based on probable cause. Faced with the investigator's affidavit which contains ample information to constitute probable cause, the Chus find themselves in need of a legal scalpel to excise masses of information from the body of the affidavit.  But § 551 was enacted before the federal constitutional exclusionary rule to deter illegal searches and seizures became applicable to the states.  At the time of enactment the Maryland statutorily based exclusionary rule applied only to criminal trials of persons charged with misdemeanors. n3£ When the Chus [*680] moved for the return of property under § 551 the Bouse Act had long since been repealed but the United States Constitution had been interpreted to require an exclusionary rule for illegal searches and seizures applicable to the states.  Within these constraints the proposition urged by the Chus is that § 551 produces the [***11] desired result by expanding to accommodate evolving fourth amendment law, including Mapp and its progeny.  We disagree.

n2 We do not intimate by the foregoing review any opinion as to whether an exclusionary rule might operate under Maryland law in contexts other than that of § 551.

n3 The Bouse Act in relevant part then read:

   No evidence in the trial of misdemeanors shall be deemed admissible where the same shall have been procured by, through, or in consequence of any illegal search or seizure or of any search and seizure prohibited by the Declaration of Rights of this State . . . .  [Md.Code (1939), Art. 35, § 5.]

   The process of statutory construction cannot be stretched to accommodate the result sought here.  Section 551 contains no clear textual support for the Chus' position.  They seem to rest their incorporation of federal law into § 551 on the statute's provision that a lack of probable cause is one instance warranting the return of seized property. It is true that in § 551 cases this Court [***12] has looked to decisions applying the fourth amendment to determine whether information presented in support of a search warrant qualitatively measures up to probable cause. n4£ That use of fourth and fourteenth amendment cases, however, is not what is proposed here.  We are being asked to import into the concept of probable cause in § 551, as a matter of Maryland statutory law, the federally created exclusionary rule in order to redact information from an affidavit supporting a warrant prior to determining probable cause in an action for the return of seized property.

n4 This proposition is illustrated by the following statement cited by the Chus from Rizzo v. State, 201 Md. 206, 210, 93 A.2d 280, 282 (1952):

   We are not infrequently reminded by counsel of our statement in Wood v. State , 185 Md. 280, 285, 44 A.2d 859, 861 [1945], that "The Bouse Act and the Act of 1939 [§ 551] amount to adoption pro tanto of the Supreme Court decisions under the Fourth Amendment."£ The context shows that the extent of pro tanto was the meaning of "illegal search and seizure" as dependent upon want of "probable cause".

   [*681] [***13] [**254] The Chus present no historical evidence that a legislative purpose of § 551 was to absorb any later adopted federal exclusionary rule. Section 551 clearly did not embrace the then-existing rule of Weeks which this Court had rejected in Meisinger and which the General Assembly in 1929 had accepted only as to misdemeanors. Had the law been otherwise prior to Mapp, § 551, in and of itself, would have resulted in the suppression of illegally obtained evidence in felony cases.  It is solely the extension of the federal constitutional exclusionary rule to the states via Mapp, and not via § 551, which now permits in criminal cases the exclusion from a search warrant application of facts obtained by an illegal search and seizure. See, e.g., Everhart v. State, 274 Md. 459, 337 A.2d 100 (1975); Carter v. State, 274 Md. 411, 337 A.2d 415 (1975).

   The proposed amendment of § 551 in 1958 also demonstrates the total absence of any legislative purpose for § 551 to be the independent, freestanding, state law source of its own exclusionary rule. In introductory form the bill that became Ch. 74 of the Acts [***14] of 1958 would have provided in relevant part as follows:
 
[A]ny person aggrieved by any unlawful search and seizure may move the court for the county or city in which the property was seized for the return of the property and to suppress for use as evidence anything so obtained on the ground that (1) the property was illegally seized without a warrant, or (2) the warrant is insufficient on its face, or (3) the property seized is not that described in the warrant, or (4) there was not probable cause for believing the existence of the grounds on which the warrant was issued, or (5) the warrant was illegally executed, or (6) that the property was taken under a warrant issued more than fifteen (15) calendar days prior to the seizure. The judge then shall receive evidence on any issue of fact necessary to the decision of the motion.  If the motion is granted, the property shall be restored and it shall not be admissible in evidence at any hearing or trial.  The motion shall be made before trial or hearing unless opportunity [*682] therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion at the trial [***15] or hearing.
 
This proposed exclusionary rule was stricken from the bill before enactment.

   In a 1983 opinion for the Court of Special Appeals, In re Special Investigation No. 228, 54 Md.App. 149, 458 A.2d 820, Judge Charles E. Moylan, Jr. devoted fifty-two pages "to analyzing, parsing, and scrutinizing [§ 551] upside down, rightside up, and inside out . . . ."£ Anne Arundel County v. Chu, 69 Md.App. at 533 n. 4, 518 A.2d at 738 n. 4. Special Investigation No. 228 concluded that § 551 did not carry its own, independent exclusionary rule. The General Assembly has not modified § 551 in any way following that decision. This lack of modification indicates that the General Assembly did not consider that the Court of Special Appeals had misperceived the legislative purpose of § 551.

   Although the Chus do not argue the direct applicability of the federal constitutional exclusionary rule to the instant proceedings, the applicability vel non of the federal rule bears on the statutory construction question.  Here the records were seized under a search warrant by the State's Attorney for Anne Arundel County as part of [***16] an investigation which may or may not result in a criminal prosecution.  The Chus seek the return of those records but they did not seek, in this proceeding, to prevent the prosecutor from using the information derived from the records while the records have been in the prosecutor's possession.  In other words, the instant case is one step shy of a motion to suppress the use of the records in the investigation.

   In United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), the owner of records which had been seized under a federal search warrant sought to suppress the use of the records in a federal grand jury investigation.  A United States District Court ordered the evidence suppressed and returned to Calandra and further ordered that Calandra need not answer [**255]any grand jury questions based [*683] on the suppressed evidence. This judgment was affirmed on direct appeal but the United States Supreme Court reversed, holding that the federal exclusionary rule did not apply.  The Court reasoned as follows:

   Any incremental deterrent effect which might be achieved by extending the rule to grand jury proceedings is uncertain [***17] at best.  Whatever deterrence of police misconduct may result from the exclusion of illegally seized evidence from criminal trials, it is unrealistic to assume that application of the rule to grand jury proceedings would significantly further that goal.  Such an extension would deter only police investigation consciously directed toward the discovery of evidence solely for use in a grand jury investigation.  The incentive to disregard the requirement of the Fourth Amendment solely to obtain an indictment from a grand jury is substantially negated by the inadmissibility of the illegally seized evidence in a subsequent criminal prosecution of the search victim.  For the most part, a prosecutor would be unlikely to request an indictment where a conviction could not be obtained.  We therefore decline to embrace a view that would achieve a speculative and undoubtedly minimal advance in the deterrence of police misconduct at the expense of substantially impeding the role of the grand jury. [Id. at 351-52, 94 S.Ct. at 621-22, 38 L.Ed.2d at 573 (footnote omitted).]
 
Under Calandra, the federal exclusionary rule would not apply to suppress [***18]the use of the Chus' records in the Maryland prosecutor's investigation of possible crime.  A fortiori, the federal rule does not apply to this civil proceeding brought by the Chus simply to obtain return of the records.

   This means that the construction urged by the Chus requires not only that we incorporate into § 551 evolving fourth amendment law, including the federal exclusionary rule, but also that we expand, as a matter of Maryland statutory law, the federal exclusionary rule beyond the extent to which it constitutionally applies.  In that uncharted [*684] territory we would be guided in administering § 551 only by subjective discretion.  That result is far beyond applying the process of construction to effect the legislative purpose of § 551.  See Kaczorowski v. City of Baltimore, 309 Md. 505, 525 A.2d 628 (1987).

   The Chus select Harris v. State, 203 Md. 165, 99 A.2d 725 (1953), Adams, Nelson, and Timanus v. State, 200 Md. 133, 88 A.2d 556 (1952) and Kapler v. State, 194 Md. 580, 71 A.2d 860 (1950) as the decisions which best point in the direction [***19] of holding that § 551 incorporates the rule of Mapp. Kapler is a relatively typical bookmaking case of the Bouse Act era.  Evidence of the criminal gambling activities of which Kapler was convicted had been obtained by executing a search and seizure warrant.  Kapler argued that the evidence was illegally obtained because there was insufficient probable cause on the face of the application to support the warrant.  Had Kapler been successful in that contention, the second string to his bow was that the evidence should be suppressed under the Bouse Act from use at trial.  See Kapler v. State, 194 Md. 580, 71 A.2d 860 (1949), Appellant's Brief at 10.  Kapler does not indicate that, in a misdemeanor case, § 551 would use the Bouse Act exclusionary rule to excise from the search warrant application any facts obtained as the fruit of an illegal search and seizure.

   Adams et al. is an appeal from a conviction for abortion.  The appellants contended that the trial court had erroneously rejected their proffer to show that some of the facts in the affidavit supporting a search warrant had been obtained by telephone wiretapping. This Court found their [***20] argument to be without merit.  At that time fourth amendment law concerning wiretapping was dominated by Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928). This Court expressed doubt as to whether there was any illegality, and further pointed out that no evidence obtained by a wiretapping was offered by the State.  200 Md. at 139, 88 A.2d at 559. The Court then referred to the rule that an affidavit in support of a search warrant which [*685] is sufficient on its face cannot be [**256] contradicted.  Moreover, the Court considered that, even if the information obtained by wiretapping were inadmissible, there existed other evidence sufficient to support the warrant. Adams et al. is of no real assistance to the Chus' position.

   Harris, supra, is another appeal from a gambling conviction.  The police had seized lottery paraphernalia in Harris's possession under a search warrant and that evidence was introduced at trial.  Significant to the instant matter is the argument made by Harris. n5£ She contended that under the then-existing version of § 551 [Code (1951), [***21] Art. 27, § 328] "the words 'that there is probable cause' must be read and construed and implied to mean 'probable cause other than that shown to be based upon an illegal search.'"£ Harris v. State, 203 Md. 165, 99 A.2d 725 (1953), Appellant's Brief at 24.  Then, as an alternative argument Harris sought suppression under the Bouse Act of facts contained in the search warrant. Id. at 26.  Underlying both theories was the contention that a police officer had trespassed onto the curtilage of Harris's dwelling in order to make the observations which formed the basis for the search warrant. This Court held that there was no trespass in making the observations. By resting its holding on the absence of illegality, Harris is similar to Adams et al.

n5 Appellate counsel for Harris was the late William J. O'Donnell who became State's Attorney for Baltimore City, a judge of the former Supreme Bench of Baltimore City and a judge of this Court.  278 Md. XXI-XXXII.

    The construction [***22] of § 551 urged by Harris did not even make its way into the opinion.  Speaking through then Chief Judge Sobeloff, this Court said:

   At the conclusion of the testimony the Court overruled the appellant's motion to quash the warrant and her objections to the testimony as to the fruits of the search thereunder.

   The general rule as to the protection under the Bouse Act (Art. 35, Sec. 5, 1951 Code) against unreasonable [*686] searches and seizures is well known and is not in controversy here.  [203 Md. at 169, 99 A.2d at 727.]
 
In that pre-Mapp era it seems that the Court, when presented with an argument that evidence should be excluded, thought in terms of the Bouse Act, not § 551, as the authority for any excision.

   We hold that § 551 does not contain an exclusionary rule. As a consequence the Chus may not use § 551 in an attempt to suppress evidence before the bell has sounded for round one of any criminal prosecution against them based on, or derived from, their records.  In the present proceeding those records must be considered to have been seized under a warrant based on probable cause.

   JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED.  COSTS [***23] TO BE PAID BY THE PETITIONERS. 

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Roger MiltonGREGORY, Jr. 
Misc. Docket (Subtitle BV) No. 14, September Term, 1986
 
Court of Appeals of Maryland
 
311 Md. 522; 536 A.2d 646; 1988 Md. LEXIS 33

 February  8, 1988

   PRIOR HISTORY: [***1]  
Circuit Court for  Anne Arundel  County, Robert S. Heise, 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 BV 15c FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST ROGER MILTON GREGORY, JR.

CORE TERMS:  solicitation, in-person, legal services, targeted, courtroom, solicited, disciplinary rule, disciplinary, overreaching, advertising, reprimand, brochures, mailing, prophylactic rule, acceptance of employment, right to counsel, pecuniary gain, advise, conversation, egregious, prepaid, traffic, advice, admits, mail, advertisement, modified, corridors, First Amendment, Maryland Rule

COUNSEL: Melvin Hirshman, Bar Counsel and Glenn M. Grossman, Assistant Bar Counsel for the Attorney Grievance Commission of Maryland, for petitioner.

   Roger Milton Gregory, Jr., Washington, District of Columbia, Esquire for respondent.

JUDGES: Murphy, C.J., and Cole, Rodowsky, McAuliffe, Adkins, and Blackwell, JJ.

OPINIONBY: McAULIFFE

OPINION: [*524] [**647] The Attorney Grievance Commission alleges that Roger Milton Gregory, Jr., during 1984 and 1985, engaged in improper solicitation of defendants in criminal cases by in-person solicitation and by targeted mailings. n1£ Respondent admits that he made a practice of initiating personal contacts with criminal defendants outside courtrooms where those defendants had just been advised of their right to [*525] counsel, and of then introducing himself as an attorney, handing the defendants a letter soliciting their business, and suggesting that [***2] they call him.  He further admits to sending targeted mail solicitations to other persons in apparent need of counsel, whose identities he had learned by observing advice-of-rights proceedings in the courtroom. He contends, however, that his solicitations were absolutely protected by the Freedom of Speech Clause of the First Amendment to the United States Constitution.

n1 As used in this opinion, targeted mailing refers to written communications by a lawyer or his agent directed to specific persons known to need legal services of the kind provided by the lawyer.

   Respondent is sixty-one years of age, resides in Silver Spring, Maryland, and maintains an office for the practice of law in the District of Columbia. Following his graduation from the United States Naval Academy, he pursued a career which included military service as a naval aviator and civilian service as an intelligence analyst with the Office of Naval Intelligence.  He then attended law school, graduating from George Washington University Law School [***3]in 1969 with honors.  He was admitted to the bar of this State on July 1, 1969, and is also a member of the bar of the District of Columbia.

   Respondent testified that in an attempt to build his Maryland criminal practice, he attended proceedings held in the District Court of Maryland sitting in Montgomery [**648] County, where he wrote down the names of criminal defendants who were advised of their rights in accordance with Maryland Rule 4-215(a). n2£ Armed with this information, Respondent [*526] would follow one of two approaches.  Either he would obtain addresses of the defendants from other public records and write to each of them, or he would follow the defendants as they left the courtroom and confront them as they were leaving the building.  When following the targeted mail solicitation approach, Respondent would send the following form letter on his professional stationery:

   Want good service at low prices?  Read On!

   Also offering free initial consultation.

   I am a fully accredited attorney regularly handling drunk driving and other traffic matters as well as criminal matters in Maryland and the District of Columbia and have been doing so for 15 years.

   I was admitted to the Maryland [***4] and D.C. bars in 1969.

   I have never had a client complaint filed against me in a traffic or criminal matter.

   I believe that it is possible to deliver quality service at reasonable prices and I take pride and pleasure in doing so.

   I will handle your case (criminal or traffic) for a very reasonable flat fee. Please do me and yourself a favor by consulting with me or calling for a fee quotation prior to making final arrangements (i.e. paying a retainer) to any other attorney.

    Thank you for giving this your attention.

   Sincerely,

   /s/Roger M. Gregory, Jr.
 
Respondent's in-person approach was to follow a defendant from the courtroom, speak to him, and hand him a copy of the form letter.  According to a witness who observed this practice on two occasions, the conversation between Respondent [*527] and a defendant lasted from one to two minutes.  According to Respondent, his ordinary conversation consisted of the following:

   Here's a letter about my services.  If you're interested call me . . . . Something came up about -- and I reviewed the Ethics Committee findings that you can give out brochures and I found that on a couple of occasions I might have been a little bit beyond -- [***5] nothing should you say to them that even could be construed -- and the few occasions people pressed me for my fees and I'd give them an idea of what the fee might be.  Since then, when a person asks me that, I tell them Maryland is very strict on what can go on and I cannot discuss it and I'm not trying to be evasive but I can't discuss it.  If you're interested call me and I'll discuss everything with you, talking about fees and so forth.
 
Respondent testified that prior to 1983, when he was reprimanded by the Attorney Grievance Commission for in-person solicitation, his practice was to engage the defendants in more extensive conversation. As to those earlier occasions, n3 he said:
 
[**649] When I was talking to them in the courthouse, I was getting information on their case, maybe give them an opinion as to -- you know -- how to -- how it might come out, going over the -- making sure they understood the penalties, quoting fees, if they were interested, asking for a retainer.  None of those things are in this letter.  But they both are designed -- they were both designed for the same purpose, yeah.

n2 Rule 4-215(a) required the Court, at a defendant's first appearance without counsel, to:

   (1) Make certain that the defendant has received a copy of the charging document containing notice as to the right to counsel.

   (2) Inform the defendant of the right to counsel and of the importance of assistance of counsel.

   (3) Advise the defendant of the nature of the charges in the charging document, and the allowable penalties, including mandatory or minimum penalties, if any.

   (4) Conduct a waiver inquiry pursuant to section (b) of this Rule if the defendant indicates a desire to waive counsel.
 
   * * *

   (6) When in the District Court, if a postponement is granted to obtain counsel, advise the defendant that if the defendant appears for trial without counsel, the court could determine that the defendant waived counsel and proceed to trial with the defendant unrepresented by counsel.
 
From time to time the District Court would give notice to a number of unrepresented criminal defendants, requiring them to appear for the purpose of insuring compliance with the rule in advance of the trial date, and it was these hearings that Respondent would attend.

n3 [***6] The trial judge to whom the instant case was referred for hearing understood this portion of the testimony to relate to Respondent's practices in 1984-85.  Respondent insists he was referring to his pre-1983 practice, and bar counsel candidly admits that this may have been the case. Respondent's testimony was far from clear on this point, but when his answer is considered in the context of his entire testimony, we think it likely he was referring to earlier conduct, and we accept that as a fact.

   [*528] Respondent contends that he changed his practice as a result both of the 1983 reprimand, and of having been made aware of a 1981 Maryland State Bar Association Ethics Committee opinion which dealt in part with in-person solicitation. For purposes of this case, we accept Respondent's version of what ordinarily occurred when he spoke with defendants following their exit from the courtroom.

   The hearing judge found that by reason of the in-person solicitation and the targeted mailings Respondent violated DR 1-102(A)(2) (a lawyer shall not violate a disciplinary rule), DR 2-103(B) & (F) (a lawyer [***7] shall not recommend employment of himself to one who has not sought his advice, nor accept employment following such recommendation), and DR 2-104(A) (a lawyer shall not, except under specified conditions, accept employment resulting from unsolicited advice to a layman to obtain counsel).

   Upon our independent review of the facts not contested by Respondent, we find by clear and convincing evidence that Respondent has violated DR 2-103(B) & (F) by his impermissible in-person solicitation of, and subsequent acceptance of employment from, persons who have not sought his advice regarding employment of a lawyer.  We do not find it necessary or desirable to consider the question of whether Respondent's targeted mailings constituted an additional violation of the disciplinary rules, principally because we are satisfied that the determination of that question would not affect the sanction that should be imposed in this case. n4

 n4 As a practical matter, if not technically, under the circumstances of this case the more egregious form of solicitation tends to subsume, at least for the purpose of determining an appropriate sanction, the less egregious solicitation by mail, even if the latter should be found to constitute a violation of the disciplinary rules as they existed at that time.  Moreover, our determination of this issue would have little or no prospective importance, due to the significant change in the rules effected by the adoption of The Maryland Lawyers' Rules of Professional Conduct, effective January 1, 1987.  See Rule 7.3.

   [*529] [***8] Respondent's in-person solicitation of clients in the corridors of the District Court, and his admitted acceptance of employment by many of those solicited, contravened the plain language of DR 2-103(B) & (F). Our inquiry cannot end there, however, for it is clear that a general prohibition against solicitation must be tested against the individual facts of each case to determine whether the application of that prohibition would offend constitutional guarantees of free speech and the right of association.  Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985); In re R.M.J., 455 U.S. 191, 102 S.Ct. 929, 71 L.Ed.2d 64 (1982); Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978); In re Primus, 436 U.S. 412, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978); Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977); NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963).

   [***9] Respondent points out that his conduct involved a component of speech, and provided information to potential consumers.  Additionally, he says that his written and verbal communications were not misleading, and that his speech and demeanor involved neither fraud, undue influence, intimidation, overreaching, nor any other vexatious conduct.  He contends that a disciplinary rule involving conduct imbued with First Amendment protections must be interpreted so narrowly that only conduct which is actually misleading, fraudulent, [**650] intimidating, or the like, may be censured.  In this he is wrong, for in a proper case, where the possibility of such conduct is sufficiently high and the reasonable possibility of detection or deterrence through alternative means is sufficiently low, the State may impose a reasonable regulation, and sanction the disobedience of that regulation, even where it is clear that the particular violation did not result in the mischief the regulation was created to prevent.  The words of the Supreme Court in Ohralik are particularly apposite:
 
[A]ppellant errs in assuming that the constitutional validity of the judgment below depends on proof that his [*530] [***10] conduct constituted actual overreaching or inflicted some specific injury . . . .  His assumption flows from the premise that nothing less than actual proved harm to the solicited individual would be a sufficiently important state interest to justify disciplining the attorney who solicits employment in person for pecuniary gain.

   Appellant's argument misconceives the nature of the State's interest.  The Rules prohibiting solicitation are prophylactic measures whose objective is the prevention of harm before it occurs.  The Rules were applied in this case to discipline a lawyer for soliciting employment for pecuniary gain under circumstances likely to result in the adverse consequences the State seeks to avert.  In such a situation, which is inherently conducive to overreaching and other forms of misconduct, the State has a strong interest in adopting and enforcing rules of conduct designed to protect the public from harmful solicitation by lawyers whom it has licensed.

   Ohralik v. Ohio State Bar Assn., supra, 436 U.S. at 464, 98 S.Ct. at 1922-23. 
 
The Court went on to say that it was "not unreasonable for the State to presume that in-person [***11] solicitation by lawyers more often than not will be injurious to the person solicited," and that because in-person solicitation is not open to public scrutiny and is nearly impossible to police, "it . . . is not unreasonable, or violative of the Constitution, for a State to respond with what in effect is a prophylactic rule."£ 436 U.S. at 466-67, 98 S.Ct. at 1923-24.

   In re Primus and NAACP v. Button, both supra, teach us that we must also examine the motivation that prompted the solicitation, because an otherwise prohibited in-person solicitation may be protected when it is but part of a goal of transcendent importance, such as the expression of political statements.  In the case before us, no such noble purpose was advanced.  This was in-person solicitation for pecuniary gain. Respondent's conduct fell within the prohibition of a valid prophylactic rule, and is subject to no constitutionally mandated exception.

   [*531] Respondent next contends that even if he violated the disciplinary rule prohibiting solicitation, he should be excused because he acted in reliance upon a formal opinion of the Committee on Ethics of the Maryland [***12] State Bar Association.  The opinion to which he refers is No. 81-21, dated February 16, 1981.  That opinion was issued in response to an attorney's request for guidelines concerning the ethical distribution of written material advertising legal services, including prepaid legal services plans.  In addition to his request for guidance in the area of direct-mail advertising, the attorney asked whether it would be permissible for an attorney from his office to randomly hand out prepaid legal services brochures to employees at the exit gate of a business.  The Ethics Committee opined that the proposed random distribution would be permissible if the attorney confined himself to the mechanical process of handing out brochures, and refused to respond to any request for further information except by telling any persons who made inquiry that they could call or write for further information.

   Respondent testified that Opinion 81-21 was brought to his attention by a representative of the Attorney Grievance Commission during his 1983 grievance proceeding.  He said that in reliance upon the opinion and because of the reprimand that he received for more aggressive in-person solicitation, he modified [***13] his approach and thereafter believed he was acting ethically.  [**651] Opinion 81-21 has been superseded, n5 and we see no need to consider whether it was accurate when written in the light of the precise circumstances of the inquiry that was before the Ethics Committee.  We point out that an opinion of the Ethics Committee of the Bar Association is advisory, and is not binding on this Court. n6£ As a practical matter, however, [*532] where an attorney can demonstrate reasonable reliance upon an ethics opinion on point, that fact is likely to have a significant effect on the initial decision of the Attorney Grievance Commission concerning the filing of a complaint, as well as upon the determination or disposition of those charges that may be filed.  Respondent's argument, however, lacks persuasive force for two reasons. First, he was not relying upon an opinion that dealt with the circumstances of his solicitation. Without intimating that the conclusion reached in Opinion 81-21 was correct, we point out that the in-person contact contemplated there was the distribution of prepaid legal services brochures at random to persons having no known specific need for legal services at the time [***14] of contact.  Respondent, on the other hand, accosted persons known by him to have been charged with an incarcerable criminal offense, who were without counsel, and who had just been advised by a judge concerning the maximum possible penalties upon conviction and the important assistance an attorney could provide.  The vulnerability of persons in that situation should have been, and indeed was, obvious to the Respondent.  It is just that type of situation, fraught as it is with the potential for overreaching or other improper conduct, which is appropriate for a prophylactic rule prohibiting in-person solicitation of any kind.  Second, Respondent should have been guided by our opinion in Attorney Griev. Comm'n v. Weiss, 300 Md. 306, 477 A.2d 1190 (1984), in which we found an attorney to have violated DR 2-103(B) by in-person solicitation of criminal defendants in the corridors of the same District Court building in Montgomery County.

n5 Opinion 87-2, dated June, 1987, and interpreting Rules 7.2 and 7.3 of the Maryland Rules of Professional Conduct, states that Opinion 81-21 "is no longer accurate" as it relates to in-person solicitation.

n6 [***15] This general principle may be modified by rule or statute. See, e.g., In re Foster, 271 Md. 449, 472, 318 A.2d 523 (1974) (pointing out that the Maryland Rule creating a Judicial Ethics Committee (now Rule 1231, Canon 7 of the Maryland Code of Judicial Conduct) provides protection to a judge who complies with an opinion obtained from the Judicial Ethics Committee); State v. Nipps, 66 Ohio App.2d 17, 419 N.E.2d 1128, 1133 (1979) (statute grants protection to state official or employee acting in reliance upon opinion obtained from Ohio Ethics Commission).

   Finally, Respondent argues that he should not be found to have violated DR 2-104, because he did not advise [*533] anyone to obtain counsel.  Rather, he says, he solicited the defendants to engage him after the judge had advised them to retain counsel.  We agree.  Attorney Griev. Comm'n v. Weiss, supra, 300 Md. at 312, 477 A.2d 1190.

   We conclude that Respondent has violated DR 2-103(B) & (F) by his in-person solicitation and by his acceptance of [***16] employment resulting from such solicitation, n7 and we turn to the question of the appropriate sanction to be imposed.  What we said in Weiss bears repeating here:

   We note that with the growth of legal advertising there may be those who look on solicitation as nothing more than advertising in person.  We stress that this is not the case.  Solicitation involves individual contact that is quite different from the abstract and impersonal nature of television, radio, newspaper advertisements or other forms of advertisement and is clearly prohibited by the disciplinary rules governing the conduct of those admitted to the Bar of this State.

   Attorney Griev. Comm'n v. Weiss, supra, 300 Md. at 314, 477 A.2d 1190.
 
[**652] In Weiss, we issued a reprimand. We added, however, that "a persistent or more egregious course of conduct in violation of our disciplinary rules may lead to much more severe sanctions."£ Id.£ Respondent should have been deterred by his earlier reprimand, and by our message in Weiss.  A more severe sanction is now warranted, and accordingly, we direct that Roger Milton Gregory, Jr. be suspended from the practice of law in this [***17] State for a period of 90 days beginning 30 days after the filing of this opinion.  He shall stand suspended beyond that date unless and until all costs incurred in connection with this proceeding are paid in full.

n7 The hearing judge also found a violation of DR 1-102, but because that finding was based solely upon subsection (A)(1) providing that a lawyer shall not violate a disciplinary rule, we believe a separate finding of a violation of DR 1-102 would be duplicitous and is therefore unwarranted.

   [*534] 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 BV 15c FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST ROGER MILTON GREGORY, JR. 

STATE of Maryland and State of Maryland Deposit InsuranceFund Corporation v. Charles C. HOGG et al. 
No. 94, September Term, 1987
 
Court of Appeals of Maryland
 
311 Md. 446; 535 A.2d 923; 1988 Md. LEXIS 11

 January  14, 1988

   PRIOR HISTORY: [***1]  
Appeal from Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals, H. Chester Goudy, Jr., Judge.

DISPOSITION: ORDER OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY DENYING THE MOTION TO DISMISS IS AFFIRMED.  COSTS TO BE PAID BY THE STATE OF MARYLAND.

CORE TERMS:  recoupment, counterclaim, sovereign immunity, sovereign, assignee, immunity, savings, assignor, set-off, motion to dismiss, common law, occurrence, duty, collateral order, insurer, merchants, insured, refund, final judgment, reduction, summary judgment, unreviewable, delivery, absolute immunity, omissions, assigned, waiver of sovereign immunity, voluntary payment, instrumentality, counterclaimed

COUNSEL: Evelyn O. Cannon, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, Dennis M. Sweeney, Deputy Attorney General, Mark D. McCurdy and Carmen M. Shepard, Assistant Attorneys General, Baltimore, and Irwin Goldbloom, Everett C. Johnson, Jr., C. Cabell Chinnis, Jr., and Latham & Watkins, Washington, District of Columbia, all on the brief), for appellant.

   Andrew H. Marks (John I. Stewart, Jr., Keith Fischler and Crowell & Moring, Washington, District of Columbia), for appellees Leonard Bass, Michael J. Dietz, Jerome E. Dolivka.

   Henry R. Elsnic and Thomas J. Bodie and Power & Mosner, Towson, for appellee James D. Laudeman, Jr.

   Harold H. Burns and Maureen F. Mackey, Baltimore, for appellee Terry Neifeld. 

   Jerold Oshinsky, Nancy A. Markowitz and Anderson, Baker Kill & Olick, Washington, District of Columbia, for appellee George W.H. Pierson.

   Joshua R. Treem and Schulman & Treem, P.A., Baltimore, for [***2] appellee Ralph K. Holmes.

    Francis S. Brocato and Brocato & Keelty, Baltimore, for appellee Paul V. Trice.

   Thomas R. Kline, Kathleen H. McGuan and Manatt, Phelps, Rothenberg & Evans, Washington, District of Columbia, for appellees Judith Miles Budoff and Jerry D. Whitlock.

   Howard B. Possick and Arent, Fox, Kintner, Plotkin & Kahn, Washington, District of Columbia, for appellee John D. Faulkner, Jr.

   John H. Zink, III and Cook, Howard, Downes & Tracy, Towson, for appellee (Charles C. Hogg, III, all on the brief).

JUDGES: Murphy, C.J., Cole, Rodowsky, McAuliffe, Adkins and Blackwell, JJ., and Marvin H. Smith, Associate Judge of the Court of Appeals of Maryland (retired), Specially Assigned.

OPINIONBY: RODOWSKY

OPINION: [*450] [**925] This action is brought in the name of the State of Maryland Deposit Insurance Fund Corporation (MDIF), a unit of the Department of Licensing and Regulation (DLR) of the State of Maryland.  The defendants are certain individuals who had been officers and directors of the former Maryland Savings-Share Insurance Corporation (MSSIC).  MDIF is the surviving corporation of a special statutory merger with MSSIC.  MDIF seeks money damages to compensate for harm allegedly caused by the defendants' [***3] breaches of duty to MSSIC.  The defendants assert by way of answer and counterclaim that the harm complained of resulted wholly or partly from the negligence of state employees in the Division of Savings and Loan Associations (DSL), also a unit in DLR.  A motion to dismiss the counterclaim as barred by sovereign immunity was denied by the circuit court.  From that denial this appeal was noted.  We must first decide whether there is a final judgment. If the appeal is properly before us, we must further decide whether, in principle, a recoupment defense is precluded by sovereign immunity and, if not, whether the defendants' position here is a recoupment defense.

   [*451] This case arises out of the 1985 savings and loan crisis in Maryland. n1£ At that time MSSIC was an insurer of accounts in certain savings and loan associations in Maryland.  MSSIC was a nonstock, nonprofit corporation created by Ch. 131 of the Acts of 1962. n2£ It is the State's position, unchallenged by the defendants, that MSSIC was not an agent of the State. n3

n1 Historical background is presented in W. Preston, Report of the Special Counsel on the Savings and Loan Crisis (1986) and is sketched in Chevy Chase Sav. & Loan, Inc. v. State, 306 Md. 384, 509 A.2d 670 (1986).

n2 [***4] The statutes relating to MSSIC were most recently codified in Md. Code (1980), Title 10 of the Financial Institutions Article.

 n3 Compare United States v. Maryland Savings-Share Ins. Corp., 400 U.S. 4, 7 n. 2, 91 S.Ct. 16, 18 n. 2, 27 L.Ed.2d 4, 7 n. 2 (1970) (MSSIC is not "an instrumentality of the State and hence entitled to exemption from federal taxation under the doctrine of intergovernmental immunity") with 70 Op. Att'y Gen. -- (1985) [Opinion No. 85-023 (Oct. 15, 1985)] (reserving on whether MSSIC is best characterized as a public corporation, a quasi public entity, or a private corporation serving a public purpose).

   By mid-May of 1985 approximately $630 million had been withdrawn from MSSIC insured accounts in the preceding three months, including $116 million withdrawn by depositors on May 13 when two large associations were placed in conservatorship.  See Chevy Chase Sav. & Loan, Inc. v. State, 306 Md. 384, 392, 509 A.2d 670, 674 (1986). An extraordinary session of the Maryland General Assembly was [***5] convened on May 17 to respond to the crisis.  One response was the creation of MDIF in DLR by Ch. 6 of the Acts of the First Special Session of 1985, now codified as Md. Code (1980, 1986 Repl.Vol.), § 10-102 of the Financial Institutions Article (FI).  Chapter 6, an emergency bill approved May 18, 1985, merged MSSIC into MDIF by uncodified § 4 which reads in relevant part:
 
[U]pon the effective date of this Act: (i) [MSSIC] shall be and is hereby merged into [MDIF], with [MDIF] as the surviving corporation, without need of the execution or filing of any confirmatory or other articles or instruments; [*452]and (ii) all of the assets . . . all of the liabilities, including but not limited to taxes, incurred losses, and other insurance liabilities, and all of the rights, powers, duties, obligations and functions of [MSSIC] are hereby transferred to [MDIF], to the extent consistent with this act . . . .

   FI § 10-121(a), enacted by ch. 12 of the Acts of 1986, provided that "[n]otwithstanding any other provision of law, and except as otherwise expressly provided in this section, [MDIF] retains and may raise the defense of sovereign immunity in any action."£ Uncodified § 3 of ch. 12 [***6] in part states that "[t]he General Assembly did not [**926] intend waiver of immunity by any of the Acts of the First Special Session of 1985."

   According to a January 1986 report prepared by the Department of Fiscal Services eleven savings and loan associations, previously insured by MSSIC and then in receivership, conservatorship, or subject to withdrawal limits, had a combined assets/liability deficit of over $400 million.  Crediting against that deficit only the MSSIC insurance fund and $60 million from a recovery, but without taking any credit for assets in the eleven associations or for any recovery on various possible causes of action, the report projected the State's potential obligation for the deficit to be $172.4 million.  Department of Fiscal Services, Analysis of Funding State Liability for Savings and Loan Obligation (January 22, 1986).  The instant case is part of the State's effort to reduce its exposure.

   MDIF here claims against twenty-six former officers and directors of MSSIC who had been elected at various times from savings and loan industry positions.  The theory of the suit, which sounds in negligence and in breach of fiduciary duties, is that the defendants violated [***7] duties owed to MSSIC and that MSSIC's rights arising out of those violations were acquired by MDIF in the merger.  MDIF's first amended complaint, consisting of forty-seven pages, enlarged the number of parties defendant from an original group of ten persons.  It alleges that the defendants failed [*453] to utilize their power and positions to correct unsafe and unsound practices of member associations.  Subdivisions of that pleading present more particular allegations concerning First Progressive and Old Court, Merritt Commercial, First Maryland, and Community savings and loan associations.

   Many issues have been joined by the defendants' answers. n4£ There is a general denial, as permitted by Maryland Rule 2-323(d), which is analogous to the former general issue plea.  Fifteen defenses are specially raised, including contributory negligence, assumption of risk, estoppel, waiver, unclean hands, and in pari delicto.

n4 Individual defendants or groups of defendants have separate counsel.  The record extract does not contain all of the answers filed.  The defendants, however, have presented in the appendix to their brief as appellees the answer of one of the defendants as representative of all answers.  The plaintiff has not questioned that answer's representative character.

   [***8] Defendants sued in the initial complaint filed a counterclaim on October 7, 1986.  That counterclaim names DLR and the State of Maryland as counterdefendants, in addition to the named plaintiff, MDIF.  That counterclaim alleges that DLR, acting through DSL and the Board of Savings and Loan Commissioners, had a "duty to obtain all material information about MSSIC's member associations and to share with MSSIC all material information . . . ."£ It further alleges that DLR "[b]y virtue of its regular practice of transmitting information to MSSIC . . . about MSSIC's member associations" assumed the duty to exercise reasonable care to obtain and transmit to MSSIC all material information about MSSIC's members.  The counterclaim characterizes the alleged negligent breach of those asserted duties as primary and active, and requests indemnification.  Alternatively, the counterclaim requests contribution from the counterdefendants if the counterclaimants are adjudged liable for the harm to MSSIC alleged in the complaint.  Consequently, one of the theories embraced in the counterclaim is that negligence on the part of the State's agents [*454] was a concurrent proximate cause of the harm to [***9] MSSIC which is the subject of the MDIF complaint. n5

n5 The counterclaim also includes the now ubiquitous request for counsel fees.  If the claim for counsel fees was intended to rest on contractual indemnification by MSSIC, assumed by MDIF, the counterclaim fails so to allege. On the face of that pleading the only theoretical basis for an award of counsel fees would be that the filing of the complaint was in bad faith or without substantial justification so that fees should be awarded under Rule 1-341.  We are spared from determining, infra, whether a claim for counsel fees, so based, prevents application of defendants' recoupment theory because the request for fees has been withdrawn in this Court.

   The counterdefendants moved to dismiss the counterclaim of October 7, 1986, principally on the ground of a sovereign immunity [**927] bar. n6£ When evaluating this motion to dismiss the circuit court treated all other counterclaiming defendants, whether they had joined in the October 7 counterclaim or not, as bound by the [***10] determination of the motion to dismiss the October 7 counterclaim. The circuit court held that the State was the real party in interest with respect to the claim asserted by MDIF and refused to dismiss as to the State and MDIF but did order DLR dismissed. n7£ That court further held, in substance, that the counterclaim was purely defensive, in the nature of recoupment, and that recoupment was not barred by sovereign immunity.

n6 MDIF, as plaintiff, did not move to strike any of the special defenses set forth in the answers to the complaint, as originally filed or as amended.  It is clear that the facts which the defendants hope to prove in support of the affirmative defenses are substantially similar to those alleged in the counterclaim. Inasmuch as negligence of the State is alleged in support of contribution or indemnification, the question arises whether contributory negligence bars a sovereign which is a plaintiff, but that issue is not before us.  Compare Annot., Contributory negligence as defense to action by state, United States, municipality, or other governmental unit, 1 A.L.R.2d 827.

n7 [***11] The dismissal of DLR is not questioned on this appeal and we intimate no opinion concerning that aspect of the order or its underlying reasoning.

   An appeal in the names of MDIF and the State was noted from the order and a petition by those appellants for the writ of certiorari was filed.  We granted the petition prior [*455] to consideration of the appeal by the Court of Special Appeals.

   I

   Appellants submit that the challenged order is appealable under the collateral order doctrine.  We have said that the requirements of that doctrine are:
 
 "[T]he order must [(1)] conclusively determine the disputed question, [(2)] resolve an important issue[, (3) be] completely separate from the merits of the action, and [(4)] be effectively unreviewable on appeal from a final judgment."£ [Clark v. Elza, 286 Md. 208, 213, 406 A.2d 922, 925 (1979) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351, 357-58 (1978) (footnote omitted)).]

   Here the trial court clearly rejected any sovereign [***12] immunity bar to the counterclaim and thereby decided an important issue.  Further, MDIF and the State contend that their absolute immunity prevents the defendants from so much as undertaking to demonstrate the alleged negligence of DSL and DLR personnel for recoupment purposes.  The immunity, as asserted, would operate whether or not negligence or other breach of duty on the part of anyone, plaintiff or defendant, caused the financial collapse of MSSIC and is thus completely separate from the merits of the case.

   With respect to whether the denial of the motion to dismiss the counterclaim would be effectively unreviewable after final judgment, MDIF and the State correctly emphasize that the policy underlying the State's sovereign immunity not only protects the public treasury but also protects the State and its instrumentalities from standing trial.  This is illustrated by Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982), where the Court held appealable under the collateral order doctrine an order denying former President Nixon's motion for summary judgment because he asserted an absolute immunity, as President, [*456] [***13] from the plaintiff's claim. Then, in Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), the Court entertained under the collateral order doctrine an appeal from the denial of a defendant's motion for summary judgment predicated on the qualified immunity of public officials exercising discretionary functions. Mitchell explained that
 
[t]he entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.  Accordingly, the reasoning that underlies the immediate appealability of an order denying absolute immunity indicates to us that the denial of qualified immunity should be similarly appealable: in each case, the [**928] district court's decision is effectively unreviewable on appeal from a final judgment. [Id. at 526-27, 105 S.Ct. at 2816.]

   This Court recognized a similar rule in Public Serv. Comm'n v. Patuxent Valley Conservation League, 300 Md. 200, 477 A.2d 759 (1984), where an order permitting the individual commissioners [***14] of the Public Service Commission to be deposed in an administrative appeal from a Commission decision was immediately appealable because "the claim that Commission members should not be routinely subjected to extensive probing of their individual decisional thought processes would irretrievably be lost."£ Id. at 207, 477 A.2d at 763.

   From the standpoint of being "effectively unreviewable" the erroneous rejection of sovereign immunity in bar of a claim is similar to the erroneous denial of the protection against standing trial for the second time which is embraced in the privilege against former jeopardy.  In that instance, an order denying a double jeopardy defense is immediately appealable.  See Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). Likewise, an order improperly failing to recognize the bar of sovereign immunity to a claim would effectively escape review if the sovereign were forced to stand trial on that claim and await [*457] final judgment before obtaining appellate review.  Consequently, the collateral order doctrine permits immediate review here to determine whether [***15] the denial of the motion to dismiss the counterclaim erroneously deprived the State and its instrumentality, MDIF, of the protection of sovereign immunity.

   II

   The defendants argue that their counterclaim is a shield and not a sword. The counterclaim seeks no monetary relief in excess of that which may be awarded to MDIF.  In their brief and at oral argument the defendants have unequivocally renounced affirmative relief in excess of the plaintiff's claim.  Defendants submit that, by initiating an action for money damages, a sovereign who has not by statute consented to suit against it, consents to a reduction of its claim for any amount payable to the defendants by a private party in the position of the sovereign which arises out of the same transaction or occurrence sued upon. This principle, which we shall call "recoupment," does not offend Maryland's sovereign immunity.

   Initially we emphasize that the label of the pleading which the State sought to have dismissed is not controlling.  One must analyze the issues raised by the defendants' counterclaim to determine if it is effectively a suit against the sovereign rather than a matter of defense.  For example, where a plaintiff who [***16]was a builder sought specific performance of the contractual promise by the defendant, an owner, to mortgage realty in a specified amount reflecting the price of improvements, the owner's counterclaim which sought to reduce the amount of the mortgage by the cost of repairing construction defects raised a matter of defense which could properly have been raised by answer so that the owner need not have counterclaimed. See Higgins v. Barnes, 310 Md. 532, 530 A.2d 724 (1987). Similarly where the plaintiffs sought a declaratory judgment that certain county action was invalid and the county, by counterclaim, sought a declaration of validity, the purported [*458] counterclaim was no more than an answer denying the relief requested in the complaint.  See East v. Gilchrist, 293 Md. 453, 445 A.2d 343 (1982).

   Although it has not been frequently addressed, the availability of a recoupment defense to a claim by Maryland, absent a statutory waiver of sovereign immunity, was implicit in State v. Baltimore & O.R.R., 34 Md. 344 (1871), aff'd, 21 Wall. 456, 22 L.Ed. 678 (1875). There [***17] the State filed an indebitatus assumpsit action against the railroad for $500,000, representing one-fifth of the moneys received by the defendant for the transportation of passengers on its Washington branch from January 1, 1860, to January 1, 1870.  The railroad filed the general issue and a special plea of set-off to which a demurrer was [**929] sustained. n8£ Judgment on verdict for the defendant was reversed and a new trial awarded, but the rejection of the plea of set-off was affirmed.  The Court reasoned as follows:

   This immunity belongs to the State by reason of her prerogative as a sovereign, and on grounds of public policy.  Parties having claims or demands against her, must present them through another department of the Government -- the Legislature -- and cannot assert them by suit in the courts.  For the same reason a right of set-off against the State does not exist.  This is in the nature of a cross-suit, the object of which is to prevent circuity of action, and it does not exist where the subject matter of the set-off could not form the ground of an independent suit.  It is a remedy conferred by statutes, which do not apply to the State, as she is not expressly embraced [***18] by their provisions.

   It is very clear that the subject matter of defense alleged in the plea cannot constitute a ground for recoupment, because the alleged cross-claim does not arise in any manner out of the contract or transaction which [*459] constitutes the cause of action, but is an entirely separate and distinct claim, having no connection therewith.  [Id. at 374-76 (citations omitted).]
 
The clear implication of this reasoning is that, had the defense been one of recoupment, sovereign immunity would not have prevented the defendant from asserting it.

n8 Set-off was unknown to the common law and is a creature of statute.  See 1 J. Poe, Pleading and Practice in Courts of Common Law § 613 (H. Tiffany 5th ed. 1925).

   The interpretation is supported by commentators on Maryland common law pleading who have cited State v. Baltimore & O.R.R. for the proposition that set-off is not available against the sovereign and who similarly imply that recoupment would be available.  See [***19] 1 J. Poe, Pleading and Practice in Courts of Common Law §§ 613-16 (H. Tiffany 5th ed. 1925); H. Ginsberg & I. Ginsberg, Pleading at Law in Maryland, at 122-23 (2d ed. 1937); A. Fisher, Essentials of Maryland Pleading, at 63-64 (J. Gorter & M. Fisher 2d ed. 1922).

   Further, our interpretation is consistent with the argument made by the State in that case. n9£ Maryland's counsel submitted in part:

   A set-off is a cross-suit or action, and cannot be maintained against the State, for the same reasons which forbid an original suit.  Whether the action be original or cross, it is equally an attempt to coerce the sovereign to do justice, and the principles of the common law do not permit a sovereign State to be thus subjected to coercion by its own tribunals.  It is presumed to be always ready to do justice voluntarily.  [34 Md. at 351.]

n9 Representing the State were Philip Francis Thomas, Severn Teackle Wallace, I. Nevitt Steele, and the then Attorney General, Issac D. Jones.

   The State [***20] relies on D.E. Foote & Co. v. Stanley, 117 Md. 335, 82 A. 380 (1911) to demonstrate that sovereign immunity in Maryland precludes recoupment. The 1910 session of the General Assembly had enacted two bills imposing charges on fresh oysters when unloaded from vessels.  This Court declared that the bill later signed was unconstitutional.  See D.E. Foote v. Clagett, 116 Md. 228, 81 A. 511 [*460] (1911). Commission merchants then challenged the earlier enactment as an unconstitutional burden on interstate commerce.  By cross bill the State, which contended the charges were legitimate inspection fees, sued for fees due and owing from the plaintiffs.  In their answer to the cross bill the plaintiffs sought credit for the charges paid under the statute previously invalidated.  This Court held that the earlier of the two enactments was constitutional, a holding which the Supreme Court of the United States reversed.  D.E. Foote & Co. v. Stanley, 232 U.S. 494, 34 S.Ct. 377, 58 L.Ed. 698 (1914). Addressing the matter of credits, this Court said:

   The claim of the [commission merchants] [***21] to set off, or recoup, against the amount claimed by the State in this case, the excess payment made by them in the [**930] former case, can not be allowed, not being provided for by any statute.  To allow such a claim would infringe upon the immunity of the State from suit in its own Courts.  "It must be presented to another department of the government, the legislature."£ State v. B. & O.R.R., 34 Md. 374. [D.E. Foote & Co. v. Stanley, supra, 117 Md. at 347, 82 A. at 384.]

   Essentially the commission merchants sought a refund for their account of moneys which had been demanded by the State as an ostensibly valid, public charge, which the commission merchants paid under a mistake of law and for which there was no refund statute.  Under Maryland common law that kind of payment is considered to be voluntary and is not recoverable.  The history of the Maryland voluntary payment rule was fully reviewed for the Court by Judge Singley in Rapley v. Montgomery County, 261 Md. 98, 274 A.2d 124 (1971), and was recently exemplified by Washington Suburban Sanitary Comm'n v. Mitchell & Best, 303 Md. 544, 495 A.2d 30 (1985) [***22] where we denied refunds of unauthorized connection charges imposed by the WSSC.  Even though WSSC is a state agency, and enjoys sovereign immunity, see Katz v. Washington Suburban Sanitary Comm'n, 284 Md. 503, 397 A.2d 1027 (1979), we [*461] predicated our holding on the absence of any statute altering the Maryland voluntary payment rule as to the WSSC connection charges, and not on the sovereign immunity of WSSC.  Further, Mitchell & Best listed Maryland voluntary payment cases going back to 1846 (303 Md. at 572 n. 9, 495 A.2d at 44 n. 9), but none of those cases rested on sovereign immunity. Consequently, to the extent that D.E. Foote v. Stanley, supra, employed a sovereign immunity rationale to reject recoupment by the commission merchants for moneys voluntarily paid by them under the invalid law, it is disapproved.

   Recoupment against Maryland was allowed in Maryland Port Admin. v. SS Am. Legend, 453 F.Supp. 584 (D.Md. 1978). In that case the Maryland Port Administration (MPA), a State agency, sued in admiralty for property damage against, inter alia, the respective owners of two ships [***23] who, in turn, counterclaimed. MPA moved for summary judgment on the counterclaims asserting the bars both of sovereign immunity and of the eleventh amendment. Judge Harvey denied summary judgment to MPA on the following reasoning:

   The Court would note at the outset that by filing suit as a plaintiff, a state waives its immunity and Eleventh Amendment protection with respect to a counterclaim arising out of the same event which is the subject of the state's claim.  This type of waiver, however, is limited to a counterclaim asserted defensively in recoupment, for the purpose of defeating or diminishing a state's recovery, but not to a counterclaim asserted for the purpose of obtaining an affirmative judgment.  [Id. at 590 (citation omitted).]

   With respect to the national sovereign, it seems to be settled that the United States of America, when suing as a plaintiff in the federal courts, is subject to recoupment without regard to any statutory waiver of sovereign immunity. See United States v. United States Fidelity & Guar. Co., 309 U.S. 506, 511, 60 S.Ct. 653, 656, 84 L.Ed. 894, 898 (1940); Bull v. United States, 295 U.S. 247, 262, 55 S.Ct. [*462] 695, 700, 79 L.Ed. 1421, 1429 (1935) [***24](assessment of tax liability equated with the Government's initiating summary proceeding for collection); Frederick v. United States, 386 F.2d 481, 488 (5th Cir.1967); Federal Deposit Ins. Corp. v. Shinnick, 635 F.Supp. 983, 985 (D.Minn.1986); United States v. Yonkers Bd. of Ed., 594 F.Supp. 466, 469 (S.D.N.Y.1984); Federal Sav. & Loan Ins. Corp. v. Williams, 599 F.Supp. 1184, 1209 (D.Md.1984); In re Am. Export Lines, Inc., 568 F.Supp. 956, 961 (S.D.N.Y.1983); In re Franklin Nat'l Bank Sec. Lit., 445 F.Supp. 723, 737 (E.D.N.Y.1978); United States v. Frank, 207 F.Supp. 216, 221 (S.D.N.Y.1962).

   Bull v. United States, supra, illustrates the rationale of the federal cases. There a partner in a firm, the annual accounting period of which was the calendar year, died in February.  Under the partnership agreement the decedent's estate continued to [**931] share in profits through December.  The Commissioner of Internal Revenue collected estate tax based on those profits earned by the firm after the decedent's death [***25] which were distributed to the estate.  Later the Commissioner demanded income tax on that same distribution.  The estate paid the income tax and then sued in the Court of Claims for a refund of the amount which should have been credited against the income tax liability for the estate tax erroneously assessed and collected.  The Court of Claims held that limitations barred any refund but the Supreme Court reversed, saying:
 
"No direct suit can be maintained against the United States.  But when an action is brought by the United States, to recover money in the hands of a party who has a legal claim against them, it would be a very rigid principle, to deny to him the right of setting up such a claim in a court of justice, and turn him round to an application to Congress.  If the right of the party is fixed by the existing law, there can be no necessity for an application to Congress, except for the purpose of remedy.  And no such necessity can exist, when this right can properly be set up by way of defence, to a suit by the [*463] United States."£ If the claim for income tax deficiency had been the subject of a suit, any counter demand for recoupment of the overpayment of estate [***26] tax could have been asserted by way of defense and credit obtained notwithstanding the statute of limitations had barred an independent suit against the Government therefor.  This is because recoupment is in the nature of a defense arising out of some feature of the transaction upon which the plaintiff's action is grounded.  Such a defense is never barred by the statute of limitations so long as the main action itself is timely.  [Id. at 262, 55 S.Ct. at 700-701 (footnotes omitted) (quoting United States v. Ringgold, 8 Pet. 150, 163-64, 8 L.Ed. 899, 903-04 (1834)).]

   That sovereign immunity does not preclude recoupment in defense of a sovereign's claim has also been recognized by federal and state courts in cases involving states other than Maryland.  See, e.g., In re Monongahela Rye Liquors, Inc., 141 F.2d 864 (3d Cir.1944); United States v. Mottolo, 605 F.Supp. 898 (D.N.H.1985); Kansas Bd. of Regents v. Holt, 8 Kan.App.2d 436, 659 P.2d 836 (1983); Edwards v. Commonwealth Dep't of Public Welfare, 34 Pa.Commw. 622, 384 A.2d 293 (1978); [***27] State v. Crabtree, 32 Conn.Supp. 322, 353 A.2d 796 (1975); State v. Town of Grants, 69 N.M. 145, 364 P.2d 853 (1961); State v. Martin, 347 S.W.2d 809 (Tex.Civ. App.1961); Commonwealth v. Berks Co., 364 Pa. 447, 72 A.2d 129 (1950); State v. Bucholz, 169 Minn. 226, 210 N.W. 1006 (1926); State v. Arkansas Brick & Mfg. Co., 98 Ark. 125, 135 S.W. 843 (1911); McCandlish v. Commonwealth, 76 Va. 1002 (1882). And see generally 14 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3654, at 202 and n. 25 (2d ed. 1985); Note, Governmental Immunity from Counterclaims, 50 Colum.L.Rev. 505 (1950); Note, Counterclaims against a Sovereign, 36 Harv.L.Rev. 871 (1923).

   The State, however, submits that the opinions of federal courts and of courts from other states are not persuasive with respect to Maryland's sovereign immunity because in this State sovereign immunity was repealed by ch. 53 of the [*464] Acts of 1786 and then revived or reinstated [***28] through the repeal of the 1786 enactment by ch. 210 of the Acts of 1820.  This Court has cited that history as one reason why any abrogation of sovereign immunity must be by legislation and not by judicial decision.  See Calvert Assocs. v. Dep't of Employment & Social Servs., 277 Md. 372, 376, 357 A.2d 839, 841 (1976). We have also said that sovereign immunity is a defense to a claim asserted against the State or one of its agencies, unless the immunity has been waived by statute, expressly or by necessary inference, and funds are or can be available for satisfaction of a judgment against the State.  See Board of Trustees of Howard Community College v. John K. Ruff, Inc., 278 Md. 580, 586, 366 A.2d 360, 362-63 (1976). In the case at hand the State argues, extrapolating from these [**932]statements, that its motion should have been granted because no statute waives sovereign immunity as to recoupment. But the principle for which the foregoing federal and state cases stand is that recoupment lies in reduction of a sovereign's claim even if the sovereign has not waived the traditional immunity by statute.  No statute is required.  [***29] By presenting the claim the State subjects itself to diminution of recovery by way of recoupment.

   The State finds particular comfort in that part of FI § 10-121(a) which specifies that MDIF "may raise the defense of sovereign immunity in any action."£ From this the State gleans that recoupment defenses infringe MDIF's sovereign immunity and are not permitted.  We need not concern ourselves, however, with whether MDIF's statutorily declared sovereign immunity can, constitutionally or otherwise, be broader than that enjoyed by the State and whether FI § 10-121(a) admits of recoupment. This is because the recoupment claimed in the instant matter does not rest on acts or omissions of MDIF employees; rather, it rests on acts or omissions of other state employees in [*465]DSL. n10£ Whatever the breadth of the statutorily created or confirmed immunity applicable to MDIF might be, we hold only that § 10-121(a) does not apply to prevent these defendants from raising against the State acts or omissions of employees in an agency other than MDIF which occurred prior to the creation of MDIF.

n10 The State has also referred to an interlocutory trial court order of November 19, 1986 in Maryland Deposit Ins. Fund Corp. v. Billman, Case No. 11073 in the Circuit Court for Montgomery County.  There MDIF in its capacity as receiver for a defunct savings and loan association sued certain former officers and directors of that association who in turn counterclaimed, alleging waste of corporate assets committed by MDIF in its administration of the receivership. The circuit court rejected a recoupment argument and dismissed the counterclaim. We intimate no opinion on that holding which addressed conduct of MDIF.

   [***30] III

   The State further submits that the instant case does not present facts to which the recoupment concept is properly applied because the transaction and the parties involved in the complaint are different from those involved in the recoupment.

   A

   Because recoupment in the context under consideration is limited to the transaction or occurrence on which the sovereign sues, the sovereign necessarily determines the allowable scope of recoupment by the scope of its suit.  Under Maryland Rule 2-212, "[a]ll persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative any right to relief in respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences, and if any question of law or fact common to all defendants will arise in the action."£ MDIF's complaint utilized this rule.  In essence the complaint embraces a series of occurrences preceding MSSIC's insolvency and concludes that breach of duty by the defendants caused the insolvency.  The "counterclaim" [*466] also embraces many of the same series of occurrences preceding MSSIC's insolvency and concludes that it was proximately caused, [***31] at least in part, by the State's negligent acts and omissions. Relative to the complaint, the recoupment arises out of the same transaction.

   The rule which we apply is not unlike that utilized by the United States Supreme Court under former Federal Equity Rule 30 in Moore v. New York Cotton Exch., 270 U.S. 593, 46 S.Ct. 367, 70 L.Ed. 750 (1926). That rule provided that "[t]he answer must state . . . any counterclaim arising out of the transaction which is the subject-matter of the suit . . . ."£ The plaintiff complained that the defendants violated the antitrust laws in refusing to furnish the plaintiff the prices of transactions on a cotton exchange while the defendants sought an injunction to prevent the plaintiffs from purloining that data.  The Court said: 
 
"Transaction" is a word of flexible meaning.  It may comprehend a series of many occurrences, depending not so [**933] much upon the immediateness of their connection as upon their logical relationship.  [Id. at 610, 46 S.Ct. at 371.]
 
And see Rothensies v. Electric Storage Battery Co., 329 U.S. 296, 299, 67 S.Ct. 271, 272, 91 L.Ed. 296, 299 (1946) [***32] (recoupment "permit[s] a transaction which is made subject of suit by a plaintiff to be examined in all its aspects, and judgment to be rendered that does justice in view of the one transaction as a whole").

   B

   The State also presents a variety of arguments, the common denominator of which treats the respective parts of the State government as separate legal entities.  Thus, we find the State arguing that
 
-- the claim initially sued on is that of MSSIC which is innocent of any wrong;
 
-- MSSIC is neither DSL nor DLR;
 
-- MDIF, the complainant, is neither DSL nor DLR;
 
-- MDIF is not the State;
 
[*467] -- because the action is brought by MDIF, a counterclaim based on wrongs by the State cannot be a recoupment against MDIF; and
 
-- MDIF is not liable for the torts of its principal, the State.
 
Perhaps the clearest approach to the analysis of the foregoing variations on the separate entities theme is first to present our view of the legal effect of the relationships.

   The unusual aspect of this case is that the General Assembly by a special act created a corporation, MDIF, as a State agency and then merged MSSIC into it. Under the pressures of the 1985 financial crisis [***33] in the savings and loan industry this technique was an efficient legal mechanism for the State to accept MSSIC's insurance liabilities in an effort to restore public confidence and at the same time to acquire MSSIC's assets.  As a result of this merger the claim against the defendants was assigned to MDIF.

   As a corporation MDIF may for some purposes be treated as a separate legal entity from the State and we shall assume that it is to be treated separately here.  But the corporation is an agent of the State.  See Keifer & Keifer v. Reconstruction Fin. Corp., 306 U.S. 381, 59 S.Ct. 516, 83 L.Ed. 784 (1939); Sloane Shipyards Corp. v. United States Shipping Bd. Emergency Fleet Corp., 258 U.S. 549, 42 S.Ct. 386, 66 L.Ed. 762 (1922). Consequently, the former MSSIC claim is held by MDIF as agent for a fully disclosed principal, the State, for whose benefit the action is brought.  In this sense the circuit court correctly described the State as the real party in interest in this action brought in the name of MDIF.

   This analysis confronts us with two questions.  First, in an action by MDIF on the former [***34] MSSIC claim is MDIF, as assignee, subject to defenses which are maintainable against it but not against MSSIC?  Second, is MDIF, as an agent, subject to defenses which are based solely on the conduct of the State, its principal?  Under traditional principles the answer to both of these questions is yes.

   [*468] From the standpoint of the defendants, MDIF's ownership of the former MSSIC claim does not insulate the claim from defenses good against the assignee and, where, as here, the assignee is an agent for a disclosed principal, the assignment from an innocent party does not insulate the assignee-plaintiff-agent from defenses good against the disclosed principal. Professor Corbin succinctly states the analysis.

   In a suit by an assignee, the counterclaim, set-off, or recoupment of which the defendant wishes to make use may arise either (1) out of a transaction between the defendant and the assignee, (2) out of some contract by the assignee of which the defendant is beneficiary, or (3) out of some transaction between the defendant and the assignor. Questions arising in the first two classes are not peculiar to the law of assignment; counterclaims in such cases are available [***35] against the plaintiff on the same terms that they would be available if he were not an assignee at all.  [4 A. Corbin, Corbin on Contracts § 896, at 595-96 (1951) (footnote omitted).]

   [**934] Thus, where D was indebted to an individual, T, and T assigned the claim to a partnership, P, of which T was a member, D was entitled to set-off in an action by P on the claim acquired by T defenses which D had against P.  See Winchester v. Hackley, 2 Cranch 342, 2 L.Ed. 299 (1804). And see Pates v. St. Clair, 52 Va. 22 (1854); Restatement (Second) Contracts § 336(4) (1981) ("An assignee's right against the obligor is subject to any defense or claim arising from his conduct . . . ."); Restatement Contracts § 167(2) (1932); 3 Jaffe, Williston on Contracts § 432, at 191 (3d ed. 1960).

   With respect to the use of defenses against an agent Restatement (Second) Agency § 368 (1958) states that "[i]n an action brought by an agent in his own name on behalf of his principal, the other party to the contract has all the defenses which would be available to him if the action were brought by the principal," with certain exceptions not here relevant.  District Agency Co. v. Suburban [*469] Delivery Serv., Inc., 224 Md. 364, 167 A.2d 874 (1961) [***36]illustrates the principle.  Under a liability policy issued to the delivery company the insured was authorized to pay certain claims for loss or damage to goods and the insurer was to reimburse the insured for those payments. The insurance broker who had placed the coverage sued the delivery company for premiums, part of which the broker had paid to the insurer and part of which were due but unpaid.  The delivery company, which had pled only the general issue, sought to reduce the broker's claim by the debt to it from the insurer under the claims payment arrangement.  This Court, through Chief Judge Brune, analyzed the problem disjunctively.  One holding was that if the broker were suing as agent for the insurer the defense made by the delivery company satisfied common law pleading requirements for recoupment. The defendant was entitled to reduce the agent's claim by the principal's debt to the defendant. See also Intra-Mar Shipping (Cuba) S.A. v. John S. Emery & Co., 11 F.R.D. 284 (S.D.N.Y. 1951); Holden v. Rutland R.R., 73 Vt. 317, 50 A. 1096 (1901). It follows that MDIF, viewed as a separate legal entity, is subject to a defense [***37]good against its principal, even if its assignor were free of that defense.

   In support of its argument that conduct of the assignee which antedated the assignment may not be used as a defense to an action brought by the assignee on the assigned claim, the State relies on Federal Deposit Ins. Corp. v. Dempster, 637 F.Supp. 362 (E.D.Tenn.1986). The author of the Dempster opinion subsequently applied the same reasoning in Federal Deposit Ins. Corp. v. Berry, 659 F.Supp. 1475 (E.D.Tenn.1987). Both cases involved insolvent banks, the deposits in which had been insured by the FDIC.  As insurer, the FDIC acquired certain assets of the banks including potential causes of action against the banks' officers and directors.  When the FDIC sued the officers and directors, they asserted that the losses of the institution were caused by negligence on the part of bank examiners and others employed by the FDIC.  Giving a [*470] very narrow reading to § 336 of Restatement (Second) of Contracts Dempster concluded that the rule therein stated "applies only in instances where the assignee is a party to the underlying contract or where the conduct of the [***38] assignee occurs subsequent to the initial assignment but prior to a reassignment."£ 637 F.Supp. at 366. The court also referred to the general rule that "the assignee steps into the shoes of the assignor upon assignment of the interest and takes the assignment subject to the defenses assertable against the assignor."£ Id. at 365-66. The court then espoused the view that if actions by the assignee, FDIC, prior to the assignment could be used against it as defenses

   the above principle of assignment, would not be appropriate.  The assignee would be subject to actions not assertable against the assignor and therefore would have additional characteristics not applicable to the assignor and would not be, as it were, stepping into the shoes of the assignor or taking on the characteristics of the assignor. [Id. at 366.]

   [**935] We are unpersuaded by the reasoning of Dempster and of Berry, both supra.  Those opinions are contrary to the Restatement, Corbin and Williston.  Further, those cases seem to rest on the belief that the rule whereby an assignee takes subject to defenses good against the assignor states the universe of rules applicable [***39] to assignments, whereas that rule does not undertake to describe, one way or the other, the effect of antecedent defenses against the assignee.

   IV

   We have seen that, as a matter of the substantive law of sovereign immunity, the recoupment concept permits matters of defense to be raised against the sovereign and that the concept applies when an agent sues on the sovereign's behalf on an assigned claim from an innocent party.  There remains to be considered whether the recoupment concept embraces contribution or indemnity.

   [*471] Our concern on this appeal under the collateral order doctrine is with the State's contention that the "counterclaim" infringes sovereign immunity and not with the merits of the defendants' argument under the substantive law of contribution or indemnity. n11£ The defendants, apparently anticipating some evidence of negligence on the part of the State, have pleaded seemingly every conceivable legal effect thereof.  Under their answer, which includes a contributory negligence special plea, the defendants apparently will contend that the claim against them is totally barred.  The "counterclaim" for contribution undertakes to use the same proof to support a contention [***40]that there should be a pro rata reduction of the State's claim.  Of concern here is whether sovereign immunity prevents the defendants from attempting to argue for a pro rata reduction if there is negligence.

n11 For example, in its reply brief the State argues that its activities through DSL and DLR do not give rise to any duty which is enforceable by the defendants.  This issue is not before us on this appeal and it was not even briefed by the defendants.  The "no duty" argument in support of dismissal of the "counterclaim" is not predicated on sovereign immunity and its concomitant right to avoid standing trial.  That issue is not within the collateral order doctrine and is unappealable at this time.

   The State correctly points out that, had MSSIC sued the defendants, or had MSSIC been acquired by a private corporation which asserted the same claim, these defendants would not have been able to recover on a third-party claim for contribution against the State.  Because MSSIC or a private corporation could not have [***41] sued the State directly, the defendants would not have been entitled to contribution in that hypothetical action.  See, e.g., Baltimore Transit Co. v. Schreifer, 183 Md. 674, 39 A.2d 858 (1944). In sum the State contends that the substantive right to contribution is derivative and that the defendants seek to do indirectly, by recoupment, what could not be done directly.

   As a substantive matter sovereign immunity does not mean that conduct which is tortious if committed [*472] by a private individual is not tortious when committed by the sovereign. If the law were otherwise, a statutory waiver of sovereign immunity would be meaningless because removal of the immunity bar would leave no underlying cause of action to assert.  Consequently, although immunity would have barred liability for the torts alleged in the "counterclaim" when committed, the State acquired and now asserts the injured party's claim.  This permits the defensive use, by way of recoupment, of the underlying conduct which allegedly has always been tortious, even though never affirmatively actionable.

   As a procedural matter no third-party claim is required here.  By bringing the action [***42] for its account through its agent, the State has put itself in the position whereby the defendants may assert, as recoupment, that the legal effect of any concurrent State negligence is a pro rata reduction. Indemnity and contribution by way of recoupment against the claim of a sovereign have been allowed against a motion to dismiss in United States v. Mottolo, supra , 605 F.Supp. 898, Federal Sav. & [**936] Loan Ins. Corp. v. Williams, supra , 599 F.Supp. 1184, and in In re Am. Export Lines, Inc., supra, 568 F.Supp. 956. 

   ORDER OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY DENYING THE MOTION TO DISMISS IS AFFIRMED.  COSTS TO BE PAID BY THE STATE OF MARYLAND. 

Wiley Mark HILL v. STATE of Maryland 
No. 164, September Term, 1987
 
Court of Appeals of Maryland
 
311 Md. 442; 535 A.2d 919; 1988 Md. LEXIS 13

 January  13, 1988

   PRIOR HISTORY:  
[**1] Certiorari to the Court of Special Appeals (Circuit Court for  Anne   Arundel  County -- Judge Martin A. Wolff).

JUDGES: Murphy, C.J., and Eldridge, Cole, Rodowsky, McAuliffe, Adkins and Blackwell, JJ.

OPINION: [*443] ORDER

   The Court having considered and granted the petition for a writ of certiorari in the above entitled case, it is this 13th day of January, 1988

   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 remanded to that Court for consideration in light of Brown v. State, 311 Md. 426, 535 A.2d 485 (1988); costs to be paid by Anne Arundel County. 

Jack Ellwood WICKS v. STATE of Maryland 
No. 4, September Term, 1987
 
Court of Appeals of Maryland
 
311 Md. 376; 535 A.2d 459; 1988 Md. LEXIS 1

 January  7, 1988

   SUBSEQUENT HISTORY: [***1] As Amended January 18, 1988.  As Amended February 2, 1988.

PRIOR HISTORY:  
Appeal from Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals, Eugene M. Lerner, JUDGE.

DISPOSITION: JUDGMENT AFFIRMED.  COSTS TO BE PAID BY THE APPELLANT.

CORE TERMS:  petit larceny, infamous crime, impeachment, infamous, common law, felony, larceny, discretion to exclude, crimen, falsi, prior conviction, admissible, pence, misdemeanor, petit, admissibility, theft, remote, convicted, Wharton's Criminal Law, incompetent to testify, prejudicial effect, probative value, grand larceny, classified, treason, dollars, buy, Criminal Law, prostitution

COUNSEL: Gary S. Offutt, Assistant Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for appellant.

   Mary Ellen Barbera, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, Baltimore City, Warren B. Duckett, Jr., State's Attorney for Anne Arundel County and Philip T. Caroom, Assistant State's Attorney, Annapolis, on the brief), for appellee.

JUDGES: Murphy, C.J., and Eldridge, Cole, Rodowsky, Couch, * McAuliffe and Adkins, JJ.  McAuliffe, Judge, concurring.

* Couch, 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: COLE

OPINION: [*378] [**460] In this case we shall decide whether the trial judge had the discretion to exclude the defendant's prior petit larceny conviction for impeachment purposes.

   Jack Ellwood Wicks was indicted [***2] in the Circuit Court for Anne Arundel County for sexual child abuse, assault, assault [*379] and battery, and third degree sexual offense.  At trial, defense counsel moved in limine to exclude Wicks's 35-year-old petit larceny conviction for impeachment purposes. The trial judge denied the motion, concluding that larceny, even petit, is an infamous crime, and that a witness's conviction for an infamous crime is admissible without reference to its age.  On cross-examination, the State asked Wicks if he had ever been convicted of larceny and Wicks answered affirmatively. The jury found Wicks guilty of sexual child abuse, third degree sexual offense, and battery.  Wicks appealed to the Court of Special Appeals, but we granted certiorari prior to argument in the intermediate appellate court.

   On appeal, Wicks argues that the trial court erred when it concluded that it had no choice but to allow the State to impeach Wicks's testimony with his prior petit larceny conviction.  Wicks contends that the trial court had the discretion to exclude his prior conviction because petit larceny is not an infamous crime and, even if petit larceny is an infamous crime, the trial court had the [***3] discretion to exclude the evidence because of its remoteness. The State maintains that petit larceny is an infamous crime and that infamous crimes are admissible for impeachment purposes without reference to their age. We agree with the State and explain.

   In Maryland, a trial judge's discretion to determine the admissibility of crimes that have been offered for impeachment purposes is limited by Maryland Code (1974, 1984 Repl. Vol.), § 10-905 of the Courts and Judicial Proceedings Article.  Section 10-905 provides that "[e]vidence is admissible to prove the . . . fact of [a witness's] conviction of an infamous crime."£ This statute deprives the trial court of discretion to determine the admissibility of infamous crimes by making infamous crimes automatically admissible for impeachment purposes.  Prout v. State, 311 Md. 348, 535 A.2d 445 (1988). Thus, under the statute, the trial court's discretion to exclude prior convictions offered for impeachment purposes is limited to non-infamous crimes.

   [*380] We recently discussed impeachment by prior conviction in Prout. In that case we considered whether the trial judge erred in excluding the prosecuting [***4] witness's prostitution and solicitation convictions when they were offered to impeach her testimony.  We held that the trial judge had the discretion to determine the admissibility of the witness's prior convictions because prostitution and solicitation were not "infamous" crimes within the meaning of § 10-905.  In reaching this conclusion we traced the roots of the statute to 1864, where we found Maryland's first statute on impeachment by prior conviction to be substantively identical to its modern counterpart.  Prout, 535 A.2d at 450. In considering the purpose of the 1864 enactment, we discovered that its function was to ameliorate the harsh common law rule which disqualified those individuals convicted of infamous crimes from testifying in judicial proceedings.  The 1864 legislation presented a more lenient rule by allowing these witnesses to testify subject only to impeachment by their prior infamous convictions.  Id. 535 A.2d at 450. Thus, in Prout, we concluded that "infamous" as it is used in § 10-905 is intended to describe only a narrow class of crimes that rendered an individual incompetent to testify at [***5] common law. Id. 535 A.2d at 450. We also recognized that these crimes were treason, the common law felonies, and the crimen falsi. Id.£ 535 A.2d at 450-451; Garitee v. Bond, 102 Md. 379, 383, 62 A. 631, 633 (1905). Accordingly, the question we must now decide is whether petit larceny is treason, a felony, or crimen falsi, and thus an infamous crime that rendered a person incompetent to testify [**461] at common law. n1£ If it is, then the trial judge was correct in concluding that he had no discretion under § 10-905 to exclude Wicks's prior petit larceny conviction.

n1 It is evident that petit larceny was not a form of treason at common law and we shall discuss this point no further.

   Larceny was one of the first crimes recognized by the common law, 2 J. Turner, Russell on Crime 1000 (11th ed. 1985), and was divided into petit and grand by statute in [*381] 1275.  Statute of Westminster I, 3 Edw. 1, c. [***6]15 (1275).  That division, much like the one today, was based on the value of the goods stolen.  If the value of the goods was twelve pence or less, the theft was classified as petit larceny and the punishment was forfeiture of goods and whipping. n2£ If the value of the goods was greater than twelve pence, the offense was classified as grand larceny and was punishable by death.  3 W. Holdsworth, A History of the English Law 366 (1966); R. Perkins & R. Boyce, Criminal Law 335 (3d ed. 1982); S. Rapalje, A Treatise on the Law of Larceny § 13, at 13 (1892); 3 Wharton's Criminal Law § 356, at 309 (C. Torcia, 14th ed. 1980); 50 Am.Jur.2d Larceny § 44 (1970); 52A C.J.S. Larceny § 60(1) (1968). However, all larceny, whether petit or grand, was considered to be a felony. R. Perkins & R. Boyce, supra, at 335; Wharton's Criminal Law, supra, § 356, at 309; 50 Am.Jur.2d Larceny, supra, § 44, at 208. n3

n2 In the late 1700's, in Massachusetts, 12 pence would buy a pound of starch.  Eleven pence would buy a pound of coffee or ham, and ten pence would buy a bushel of apples.  M. Maulhall, Dictionary of Statistics 488 (4th ed. 1899 & republished 1969).

n3 [***7] This explains the fact that larceny is virtually always listed among those offenses that were felonies at common law without a distinction being made between petit and grand larceny. 3 Op.Atty.Gen. 86 (1918); Ginsberg & Ginsberg, Criminal Law and Procedure in Maryland 6-7 (1940); R. Perkins & R. Boyce, supra, at 14; 1 Wharton's Criminal Law, supra, § 17, at 81.

   In 1809, the legislature divided larceny into simple and petit at the amount of five dollars and assigned different punishments to each offense.  Chapter 138 of the Laws of 1809.  Nevertheless, each offense remained a felony. Thus, in 1864 when § 10-905's predecessor was enacted, petit larceny was a felony and thus an infamous crime that was admissible for impeachment purposes under the statute.  By Chapter 78 of the Laws of 1933, the legislature changed the amount dividing petit and grand larceny from five dollars to twenty-five dollars and made larceny under the value of twenty-five dollars a misdemeanor.

   [*382] The General Assembly's reclassification of petit larceny from a felony to a misdemeanor manifests [***8] its intention that a person convicted of petit larceny not be made to suffer the consequences that flow from a felony conviction.

   However, this legislation did not change its status under § 10-905 which determined an infamous crime to be a conviction which rendered an individual incompetent to testify at common law. Thus, although petit larceny is now a misdemeanor, it was clearly a felony at common law and "infamous" within the meaning of § 10-905.  The trial judge was therefore correct in concluding he had no discretion to exclude this prior conviction when offered for impeachment purposes.

   Nonetheless, even if we were to conclude (which we do not) that the change of petit larceny to a misdemeanor prevents its use for impeachment because it was no longer a felony, the result here would be the same.

   Infamous crimes at common law also included the crimen falsi. Prout, 535 A.2d at 451; Garitee v. Bond, 102 Md. 379, 383, 62 A. 631, 633 (1905). Therefore, if petit larceny is a crimen falsi it is admissible under § 10-905 without regard to whether it was, or is currently, a felony or a misdemeanor. Thus, the question [***9] to which we now turn is whether petit larceny is a crimen falsi.  We conclude that it is.

   Crimes historically classified as crimen falsi include crimes in the nature of perjury or subornation of perjury, false [**462] statement, criminal fraud, embezzlement, false pretense, or any other offense involving some element of deceitfulness, untruthfulness, or falsification bearing on the witness's propensity to testify truthfully.  Black's Law Dictionary 335 (5th ed. 1979) (citation omitted).  We find that theft, in any amount, is the embodiment of deceitfulness.  Thus, in applying the above definition to petit larceny, we cannot avoid the conclusion that petit larceny is a crimen falsi and, thus, an infamous crime within the meaning of § 10-905.  Our conclusion is buttressed by the fact [*383] that the General Assembly has labelled theft as an infamous crime, a conviction which renders an individual ineligible to vote in this State.  Maryland Code (1957, 1986 Repl. Vol.), Art. 33, § 3-4(c). n4

n4 Section 3-4(c) provides that "[n]o person shall be registered as a qualified voter if he has been convicted of theft or other infamous crime, unless he has been pardoned, or, in connection with his first such conviction only, he has completed any sentence imposed . . . ."£ (emphasis supplied).

 
   [***10] Wicks further argues that, even if petit larceny is an infamous crime within the meaning of § 10-905, the trial judge still had the discretion to exclude evidence of his prior conviction if he determined that it was too remote, or if he concluded that its probative value was outweighed by its prejudicial effect. However, this Court has previously held that "where [a] prior conviction [is] for an infamous crime, evidence of it is admissible without reference to the time of its commission, for such bearing and weight on credibility as the trier of fact may give it under the circumstances."£ Cousins v. State, 230 Md. 2, 4-5, 185 A.2d 488, 489 (1962) (footnote omitted).  Thus, the fact that an infamous crime is remote does not negate its admissibility under § 10-905; it is admissible for impeachment purposes irrespective of its age.  Moreover, it is only when a prior conviction is for a non-infamous offense that the trial judge has the discretion to balance its probative value against its prejudicial effect in determining its admissibility. Prout, 535 A.2d at 452. When a conviction is for an infamous crime it is admissible [***11] under § 10-905 without regard to its prejudicial effect. Ricketts v. State, 291 Md. 701, 708, 436 A.2d 906, 910 (1981). Accordingly, Wicks's argument that the trial court had the discretion to exclude his prior petit larceny conviction either because it was too remote or prejudicial must fail.

   Wicks further argues that our holding will lead to absurd results.  He claims that it is absurd that a person convicted of larceny of a candy bar at age 18 may be impeached with [*384] that conviction 50 years later.  This may be, but such a conviction had an even greater effect at common law, where an individual who was convicted of stealing an item worth twelve pence or less was disqualified from being a witness in a judicial proceeding for the remainder of his life.  In 1864, when the General Assembly enacted Maryland's impeachment statute, the General Assembly made a legislative determination that an infamous conviction, rather than disqualifying an individual from testifying, would be admissible to impeach his credibility.  If trial courts are to be vested with the discretion to exclude a witness's prior infamous conviction when it is too remote or prejudicial, [***12] that result must be achieved through legislative abrogation of the 1864 directive, or by exercise of our rule-making power, n5 not through adjudication.  Under the circumstances, the trial court had no discretion to exclude the prior conviction and thus its admission was entirely proper.

n5 See Md. Const. (1981 Repl.Vol.), Art. IV, § 18(a), and Md.Code (1974, 1984 Repl.Vol.), § 1-201(a) of the Courts and Judicial Proceedings Article.  The statute directs liberal construction of our rule-making power and explains that the power includes, among other things, "the admissibility of evidence in all cases, including criminal cases."£ The area of law addressed in this opinion would appear to be an appropriate one for consideration by the Rules Committee. See, e.g., Ricketts v. State, 291 Md. 701, 703-705, 436 A.2d 906, 907-909 (1981); Burrell v. State, 42 Md.App. 130, 399 A.2d 1354 (1979); 3 J. Weinstein and M. Berger, Weinstein's Evidence, Ch. 609 (1987).

    [***13] [**463] JUDGMENT AFFIRMED.  COSTS TO BE PAID BY THE APPELLANT.

CONCURBY: McAULIFFE

CONCUR: McAULIFFE, Judge, concurring.

   I concur in the result, but I would hold the misdemeanor of theft to be an infamous crime only because it is a crimen falsi.  In recognition of established precedent, and in the absence of a constitutionally grounded objection, I concur with the holding that the trial judge may not exclude evidence of a previous conviction of an infamous crime even though its potential for improper prejudice outweighs its probative value. 

Neill S. COOPER et al. v. Stanley E. HARTMAN et ux. 
No. 45, September Term, 1987
 
Court of Appeals of Maryland
 
311 Md. 259; 533 A.2d 1294; 1987 Md. LEXIS 304

 December  9, 1987

   SUBSEQUENT HISTORY: [***1]

   Motion for Reconsideration Denied January 12, 1988.

PRIOR HISTORY:  
Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County - Judge H. Chester Goudy, Jr.).

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED AND CASE REMANDED TO THAT COURT WITH DIRECTIONS TO VACATE THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AND REMAND THE CASE TO THE CIRCUIT COURT FOR A NEW TRIAL. RESPONDENTS TO PAY THE COSTS.

CORE TERMS:  infection, causation, chance of survival, patient, bone, medical malpractice, probability, antibiotic, substantial possibility, better result, surgery, malpractice, lost chance, osteomyelitis, doctor, new tort, valuation, compensable, survived, burden of proof, negligent act, heart attack, right leg, conjecture, diagnosed, swelling, symptoms, hip, motion to dismiss, standard of care

COUNSEL: Argued by George J. Goldsborough, Jr. (Goldsborough & Tolley, on the brief), both of Easton, Maryland, for appellants.

   Argued By Daniel M. Clements (Laurence A. Marder, Israelson, Salsbury, Clements & Bekman, on the brief), all of Baltimore, Maryland, for appellees.

   E. Fremont Magee, H. Mark Stichel, Dawanna M. Cobb and Piper & Marbury, on the brief, for amicus curiae Chesapeake Physicians, P.A.

JUDGES: Murphy, C.J., Cole, Rodowsky, McAuliffe, Adkins and Blackwell, JJ. and Charles E. Orth, Jr., Associate Judge of the Court of Appeals (Retired), Specially Assigned.

OPINIONBY: ADKINS

OPINION: [*260] [**1294] In Weimer v. Hetrick, 309 Md. 536, 525 A.2d 643 (1987), we held that the "loss of a substantial chance of survival" [*261] doctrine did[***2] not apply to a wrongful death action under Md.Code (1984 Repl.Vol., 1987 Cum.Supp.)£ Cts. & Jud.Proc. Art. § 3-904.  We explained that neither Thomas v. Corso, 265 Md. 84, 288 A.2d 379 (1972), nor Hicks v. United States, 368 F.2d 626 (4th Cir.1966), "created . . . a new tort . . . [or] an additional basis for determination of damages [**1295] in an existing tort" on the basis of that doctrine.  Weimer, 309 Md. at 553, 525 A.2d at 652. We left for "another day" the question of whether Judge Sobeloff's language in Hicks (368 F.2d at 632) "will prove to be an augury of a burgeoning new tort or introduce a new factor for consideration of damages in tort cases producing injury or death . . . ."£ Id.

   That day has not yet come.  The case now before us, tried long before our Weimer, went to the jury on instructions that included one based on the "loss of a chance" doctrine.  But because the evidence was insufficient to support that instruction, even assuming the doctrine exists in Maryland, we again decline to decide whether Maryland recognizes the doctrine.  We explain.

   On 18 February 1978 respondent Stanley Hartman fell and fractured his right hip. Petitioner[***3] Dr. Neill Cooper operated on the hip in an effort to repair the damage.  The surgery appeared to be successful; Hartman was discharged from the hospital on 16 March, still under the care of Dr. Cooper.

   A short time after his discharge, Hartman began showing symptoms of infection in his right hip. On 28 March 1978, during an outpatient consultation with Dr. Cooper, Hartman complained of persistent pain and swelling in his right leg. Dr. Cooper, apparently suspecting infection, prescribed an antibiotic.

   The antibiotic had little or no effect on Hartman's pain and swelling, and his condition continued to deteriorate.  On 26 April 1978 Hartman again consulted Dr. Cooper, this time complaining of throbbing pain in his right thigh and recurrent episodes of fever.  Despite these symptoms Dr. Cooper did not take any serious steps to determine the [*262] cause of the swelling until 26 May 1978 when he administered a blood test.  The test revealed a slightly elevated white blood count and an increased sedimentation rate, two indicators of infection. Despite these warning signals the doctor took no further action to diagnose or treat the infection until 27 June 1978 when he aspirated[***4] the wound and obtained bacterial cultures for testing.  Tests of the cultures, however, showed no sign of bacterial infection. Over the next few months, Hartman's symptoms continued but Dr. Cooper failed to abate the infection.

   Finally in November 1978, Hartman was admitted to Johns Hopkins Hospital where he was diagnosed as suffering from osteomyelitis (an infection of the bone) in his right leg. During the course of treatment, Hartman underwent five successive surgeries involving removal of bone from his right leg. The end result was a two-inch shortening of the leg.

   Hartman and his wife (the Hartmans) filed a medical malpractice claim against Dr. Cooper and other health care providers (hereinafter collectively referred to as Dr. Cooper).  Dr. Cooper was victorious in the arbitration proceeding, as he was in a subsequent trial in the Circuit Court for Anne Arundel County.  The judgment in his favor, however, was reversed.  Hartman v. Cooper, 59 Md.App. 154, 474 A.2d 959 (1984). At a new trial the Hartmans obtained a $210,000 judgment against Dr. Cooper.  The Court of Special Appeals affirmed in Cooper v. Hartman, No. 1615, September Term, 1985 (Md.App., filed 6 October[***5] 1986) (per curiam).  We granted certiorari.

   We did so because at the second trial the Hartmans asserted that Dr. Cooper's post-surgery negligence -- that is negligence in treating the infection -- had caused Hartman to lose a substantial chance of attaining a better recovery than in fact occurred.  On the basis of that theory and over [*263] Dr. Cooper's objections, n1 the Circuit Court for [**1296] Anne Arundel County (Goudy, J.) instructed that:
 
In a civil case such as this people are presumed to have acted reasonably and that's why the burden of proof is by a preponderance of the evidence on the party asserting the claim to prove they didn't.  That's a general statement of law in any negligence case.

   * * *
 
And with regard to causation Judge Goudy gave the following charge:
 
You are instructed that when a physician's negligent act, and I'm not suggesting it was negligent, or that it was or wasn't -- when a physician's negligent act or negligent failure to act has terminated or lessen[ed] a person's chance of recovery the physician will not be heard to raise conjectures as to the measures of the chances that he has taken away.  If there was[***6] any substantial possibility in this case of recovery or stopping or arresting the infection and the doctor negligently destroyed that chance, it is answerable.  Rarely is it possible to demonstrate to an absolute certainty what would have happened had the treatment not been negligent.

n1 In support of a motion to dismiss, the Hartmans argue that the issue regarding the correctness of the causation charge was not preserved for appeal because the record extract fails to show Dr. Cooper's exception to the instruction, as required by Md. Rule 828.  We find no merit to this contention for several reasons.  First, the Hartmans have failed to raise this non-preservation issue in a cross-petition for certiorari.  Thus, the issue is not before us and we need not address it.  See Rule 813 a and Frank v. Storer, 308 Md. 194, 207 n. 7, 517 A.2d 1098, 1105 n. 7 (1986). Second, although the Rule 828 b.1.(b) requirements are mandatory, the decision whether to impose sanctions is discretionary.  Wyndham v. Haines, 305 Md. 269, 277 n. 7, 503 A.2d 719, 724 n. 7 (1986). We would decline to impose the sanction of dismissal for this minor infraction if the issue were before us.  Moreover, the record shows that Dr. Cooper's attorney did object to the instruction and, therefore, properly preserved the issue for appeal.  Md.Rule 828 c.  The motion to dismiss is denied.

[***7]

   The latter instruction, in effect, required the jury to apply the doctrine of "loss of substantial chance of survival," or [*264] more properly, on the facts of this case, "loss of a substantial chance of recovery."£ The instruction was based upon Judge Sobeloff's language in Hicks v. United States, 368 F.2d 626, 632 (4th Cir.1966), which we quoted in Thomas v. Corso, 265 Md. 84, 101-102, 288 A.2d 379, 389-390 (1972). Apparently misreading Thomas, the trial court erroneously concluded that we had adopted the loss of substantial chance doctrine in Maryland. n2£ The Court of Special Appeals, citing Thomas, found "no error in the trial court's interpretation or application of the 'substantial possibility' standard . . . ."£ Cooper v. Hartman, No. 1615, September Term, 1985, slip op. at 3-4 (Md.App. filed 6 October 1986) (per curiam).  For the reasons we now give, both courts were in error.

n2 As stated earlier in our discussion, we did not adopt the doctrine of "loss of substantial chance of survival" in Thomas v. Corso, supra. See discussion at p. 261, supra.

[***8]

   The doctrine of "loss of substantial chance of survival," as it is often called, has received a great deal of attention recently from commentators. n3£ This rule has been applied primarily in medical malpractice cases where the patient, already plagued by a pre-existing illness, injury or condition, receives medical treatment that falls below the standard of care. Annotation, Medical Malpractice: "Loss of Chance" Causality, 54 A.L.R.4th 10, 17-18 (1987). In [*265] these cases under traditional rules, plaintiffs often encounter problems with proof of causation and are unable to demonstrate a better than even chance of recovery, absent the malpractice. King, "Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences," 90 Yale L.J. 1353, 1363-1364 (1981). And under traditional approaches any injury suffered by the patient "would not be compensable [**1297]because it did not appear more likely than not that the patient would have survived with proper care."£ Id.

n3 See Andel, "Medical Malpractice: The Right to Recover for the Loss of a Chance of Survival," 12 Pepperdine L.Rev. 973 (1985); Bradt & Gathmann, "Recovery for the Value of a Chance in Medical Negligence Cases: Bringing Minnesota's Standard of Causation Up to Date," 12 Wm. Mitchell L.Rev. 459 (1986); King, "Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences," 90 Yale L.J. 1353 (1981); Smith, "Increased Risk of Harm: A New Standard for Sufficiency of Evidence of Causation in Medical Malpractice Cases," 65 B.U.L.Rev. 275 (1985) (discussing the advantages of the causation approach); Comment, "Medical Malpractice, The Increased Risk Rule: Establishing 'Probable' Causation Through Mere Possibility," 27 Ariz.L.Rev. 257 (1985); Annotation, Medical Malpractice: "Loss of Chance" Causality, 54 A.L.R.4th 10 (1987). In addition an interesting treatment of the subject is found in Hotson v. East Berkshire Health Authority [1987] 2 All E.R. 909 (House of Lords).

[***9]

   As a direct consequence of the results occasioned by the traditional approach, some courts have adopted rules designed to alleviate what they view as inequity.  The various courts that have adopted these rules, however, have taken different approaches.  Some have simply relaxed the standards regarding causation and allowed full compensation for an injury or death where the plaintiff demonstrated less than a 50% chance of recovery. n4£ Others have left the traditional rules of causation intact but have viewed the loss of a chance as a way of approaching damages. n5£ See Weimer v. Hetrick, 309 Md. 536, 556, 525 A.2d 643, 653 (1987) (McAuliffe, J., concurring) ("a claim under that theory [loss of substantial chance of survival] does not involve the creation of a new tort, but rather involves a redefinition of damages involved in the claim").

n4 Waffen v. United States Dep't of Health & Human Services, 799 F.2d 911, 922-923 (4th Cir.1986); Thompson v. Sun City Community Hosp., Inc., 141 Ariz. 597, 606-609, 688 P.2d 605, 615-616 (1984); Sharp v. Kaiser Found. Health Plan of Colo., 710 P.2d 1153, 1155-1156 (Colo. App.1985); Roberson v. Counselman, 235 Kan. 1006, 1013-1021, 686 P.2d 149, 158-160 (1984); Evers v. Dollinger, 95 N.J. 399, 413-419, 471 A.2d 405, 412-415 (1984); Hamil v. Bashline, 481 Pa. 256, 269-274, 392 A.2d 1280, 1288-1289 (1978).

[***10] 

n5 DeBurkarte v. Louvar, 393 N.W.2d 131, 137 (Iowa 1986); McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467, 476-477 & n. 25 (Okla.1987); Herskovits v. Group Health Coop. of Puget Sound, 99 Wash.2d 609, 634, 664 P.2d 474, 487 (1983) (Pearson, J., concurring).

   Professor King in his recent law review article provides a succinct discussion of the damage approach:

   [*266] A better method of valuation would measure a compensable chance as the percentage probability by which the defendant's tortious conduct diminished the likelihood of achieving some more favorable outcome.  Under this approach, the trier of fact would continue to make the valuation, but would do so within specific guidelines and parameters set by the court.

   To illustrate, consider a patient who suffers a heart attack and dies as a result.  Assume that the defendant-physician negligently misdiagnosed the patient's condition, but that the patient would have had only a 40% chance of survival even with a timely diagnosis and proper care.  Regardless of whether it could be said that the defendant caused the decedent's[***11] death, he caused the loss of a chance, and that chance-interest should be completely redressed in its own right.  Under the proposed rule, the plaintiff's compensation for the loss of the victim's chance of surviving the heart attack would be 40% of the compensable value of the victim's life had he survived (including what his earning capacity would otherwise have been in the years following death).  The value placed on the patient's life would reflect such factors as his age, health, and earning potential, including the fact that he had suffered the heart attack and the assumption that he had survived it.  The 40% computation would be applied to the base figure.
 
King, supra, at 1382.  Thus, under Professor King's approach, an injured patient can only recover damages for the lost chance.

   Respondents argue that the "loss of substantial chance doctrine" exists in Maryland and should be applied here, either as a new cause of action (the causation approach) or, alternatively, as a method of determining damages for a traditional tort (the damage approach).  As we have already observed, we need not and do not decide whether Maryland recognizes the doctrine in any form. That[***12] is so because even if we assume, arguendo, the existence of the doctrine, [*267] the evidence in this case does not support its application under either approach.

   The sufficiency of evidence necessary to establish the element of causation under the causation approach is best illustrated with reference to Thompson v. Sun City Community Hosp., Inc., 141 Ariz. 597, 688 P.2d 605 (1984). In Thompson the court said that
 
[**1298] even if the evidence permits only a finding that the defendant's negligence increased the risk of harm or deprived plaintiff of some significant chance of survival or better recovery, it is left for the jury to decide whether there is a probability that defendant's negligence was a cause in fact of the injury.
 
Thompson, 141 Ariz. at 606, 688 P.2d at 614. The Thompson court acknowledged that it, in effect, "permit[ted] the case to go to the jury on the issue of causation with less definite evidence of probability than the ordinary tort case."£ Id. at 607, 688 P.2d at 615. But the court reiterated that the jury was to be "instructed that they must find for the defendant unless they find a probability that the[***13] defendant's negligence was a cause of plaintiff's injury."£ Id. at 607-608, 688 P.2d at 615-616 [emphasis in original]. n6

n6 See also, Sharp v. Kaiser Found. Health Plan of Colo., 710 P.2d 1153, 1155-1156 (Colo.App.1985); Roberson v. Counselman, 235 Kan. 1006, 1013-1021, 686 P.2d 149, 158-160 (1984); Evers v. Dollinger, 95 N.J. 399, 413-419, 471 A.2d 405, 412-415 (1984); Hamil v. Bashline, 481 Pa. 256, 269-274, 392 A.2d 1280, 1288-1289 (1978), applying the Thompson rule.

   At trial Hartman presented testimony of two expert witnesses, Dr. Caplan and Dr. Weiland.  Both testified that Dr. Cooper departed from the standard of care by failing to diagnose and treat the infection more promptly.  As to causation, the testimony was somewhat less conclusive.  Dr. Weiland testified as follows: 

   Q. Do you have an opinion, doctor, as to -- to a reasonable medical probability as to whether or not there is a likelihood of a better result, that it's more probable than not that Mr. Hartman would have[***14] had a better result for [*268] the union [of the bone] without the infection, or if it had been treated earlier?

   * * *

   A. I think that the chances are he would have had a much better result if the infection didn't occur in the first place, but if it did occur, to be treated, diagnosed and treated earlier.

   * * *

   Q. Do you have an opinion, doctor, as to whether or not, if it had been diagnosed in April of 1978, late April of 1978 by Dr. Cooper, for what ultimately it was determined to have been -- whether or not it is possible that he may have been treated purely with antibiotics without the necessity of surgery?

   * * *

   A. I think it's possible that he would have been treated with antibiotics and it's possible the infection would have been cured then.  [Emphasis added.]
 
Dr. Caplan testified as follows:
 
Well, acute osteomyelitis is -- is treated almost always with antibiotics, alone.  Once you have the infecting organism, you just treat [it] with prolonged, and it takes up to six weeks of high dose intravenous, usually, antibiotics and given that, you have an excellent chance of saving the bone with no subsequent surgery, and no loss of bone.

   * * [***15] *

   Q. And what's the importance of doing them over days rather than two months?

   A. Well, if, for example, his infection was somewhere else, it's possible he could have died while we were waiting from the infection. The fact that it was in his bone meant that the only problem would be that he would suffer loss of bone, which is bad, but, I mean, the longer you wait the less the chance that you can cure an infection and the earlier you treat an infection, the better the chance that you can completely cure it without [*269] a lot of adjutant therapy, surgery, and a lot of other modalities that are now being used. [Emphasis added.]

   This evidence falls short of what is required under the Thompson standard. Dr. Weiland's testimony was that "its possible the infection would have been cured" if Hartman had been properly treated.  Dr. Caplan, speaking generally about treatment of osteomyelitis, said that "you treat them [the infecting organisms] with . . . antibiotics and given that, you have an [**1299] excellent chance of saving the bone . . . ." n7£ The testimony failed to demonstrate that Hartman had a "substantial possibility" of a better result. And it[***16] was insufficient to permit any reasonable juror to find that Hartman had a probability of a good recovery.  Thus, the loss of chance causation approach cannot be applied to this case.

n7 Dr. Caplan's testimony should be given little weight since he spoke generally about treatment of osteomyelitis and did not assess Hartman's chances of a better result had he received proper treatment.

   As to the damage approach, the Hartmans have also failed to provide the requisite proof.  The damage approach differs from the causation approach in that recovery under the former depends upon the quantitative measure of the lost chance. "It is well settled that compensatory damages must be proven with a reasonable degree of certainty and cannot be based upon speculation or mere conjecture."£ Davidson v. Miller, 276 Md. 54, 61-62, 344 A.2d 422, 427 (1975). When we apply this language to loss of chance damages, it is apparent the proof ordinarily must be based on quantitative measures. n8£ But the evidence [*270]presented[***17] on behalf of the Hartmans failed to show with reasonable specificity what the extent of the lost chance was.  Therefore, they cannot invoke the damage approach.

n8 This proposition is further supported by the fact that most courts applying the loss of chance damage approach have done so in cases where the lost chance is expressed in terms of percentages.  See Mays v. United States, 608 F.Supp. 1476, 1481-1483 (D.Colo.1985) (applying Colorado law) (expert testimony established that plaintiff's chances of survival reduced from 40% to 15% because of the malpractice); DeBurkarte v. Louvar, 393 N.W.2d 131, 137-138 (Iowa 1986) (expert testified that prior to the negligent acts and omissions plaintiff had between 50% and 80% chance of survival, but at the time of trial, her chances were zero); McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467, 476 (Okla.1987) (holding "that statistical evidence is not necessary to create a causation issue for the jury, [but that] statistical data relating to the extent of the decedent's chance of survival is necessary in determining the amount of damages recoverable after liability is shown").

[***18]

   Since the instruction directed the jury to apply the doctrine, it was error because the evidence did not support it under either approach.  The Hartmans, nevertheless, argue that the error was not prejudicial because the evidence was sufficient to permit the jury to find in their favor under traditional tort law. Alternatively, they suggest that we remand on the issue of damages only.  But the error was prejudicial, and the case must be remanded as to all issues.

    The traditional rule governing burden of proof as to causation in medical malpractice cases was recently stated in Pierce v. Johns-Manville Sales Corp., 296 Md. 656, 464 A.2d 1020 (1983). There, Judge Davidson said:
 
In Maryland, recovery of damages based on future consequences of an injury may be had only if such consequences are reasonably probable or reasonably certain. Such damages cannot be recovered if future consequences are "mere possibilities."£ Probability exists when there is more evidence in favor of a proposition than against it (a greater than 50% chance that a future consequence will occur).  Mere possibility exists when the evidence is anything less.
 
Id. at 666, 464 A.2d[***19] at 1026 [citations omitted; emphasis added].

   Thus, under the traditional rule of Pierce (assuming the loss of chance doctrine does not apply) the Hartmans shouldered the burden of proving that Hartman had a better than 50% chance of full recovery absent the malpractice. The instruction, however, did not make this point of law [*271] clear to the jury.  The critical portion of Judge Goudy's instruction provided:
 
When a physician's negligent act or negligent failure to act has terminated or lessen[ed] a person's chance of recovery the physician will not be heard to raise conjectures as to the measures of the chances that he has taken away.  If there was any substantial possibility . . . of recovery . . . [he] is answerable.  [Emphasis added.]
 
As we have seen, the Pierce court defined "possibility" as a less than 50% chance.  [**1300] 296 Md. at 666, 464 A.2d at 1026. It further stated that proof as to future consequences must be in terms of probabilities (greater than 50% chance) and not possibilities (less than 50% chance).  The lower court's instruction in this case, however, directed the jury to find for the Hartmans if there was[***20] "any substantial possibility . . . of recovery."£ This was in contravention of Pierce.  In essence, the jury was instructed to find for the Hartmans even if it believed that absent the malpractice, Hartman had less than a 50% chance of complete recovery.

   The Hartmans argue that the instructions, if read in their entirety, Dean v. Redmiles, 280 Md. 137, 162-163, 374 A.2d 329, 343 (1977), did not direct a finding in contravention of Pierce.  In support of their argument, the Hartmans point out that the trial judge instructed the jury that it must adhere to the preponderance of the evidence standard.  The argument is unpersuasive.  Although the trial judge did instruct the jury generally on the burden of proof issue, the instruction on causation in effect permitted it to depart from the preponderance standard on the causation issue.

   The instruction was erroneous and harmfully so.  Since the error went to causation, it affected the jury's determination as to Dr. Cooper's liability. Therefore, we reverse and remand for a new trial on all issues.

   JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED AND CASE REMANDED TO THAT COURT WITH DIRECTIONS TO VACATE THE JUDGMENT OF [*272] [***21] THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AND REMAND THE CASE TO THE CIRCUIT COURT FOR A NEW TRIAL.  RESPONDENTS TO PAY THE COSTS. 

Richard Bryan WILDERMUTH v. STATE of Maryland.  JamesSylvester McKOY v. STATE of Maryland 
Nos. 2, 7, September Term, 1987
 
Court of Appeals of Maryland
 
310 Md. 496; 530 A.2d 275; 1987 Md. LEXIS 279

 September  10, 1987

   PRIOR HISTORY: [***1]  
Circuit Court for  Anne Arundel  County, pursuant to certiorari to the Court of Special Appeals, Bruce C. Williams, Judge.

DISPOSITION: JUDGMENT IN NO. 2 (ADV.), SEPT. TERM, 1987 (WILDERMUTH) REVERSED. CASE REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.  COSTS TO BE PAID BY ANNE ARUNDEL COUNTY.

   JUDGMENT IN NO. 7 (ADV.), SEPT. TERM, 1987 (MCKOY) AFFIRMED.  COSTS TO BE PAID BY APPELLANT.

CORE TERMS:  confrontation, courtroom, cross-examination, television, testifying, accuser, child victim, closed-circuit, deposition, confrontation clause, communicate, right of confrontation, child witness, unavailability, child abuse, serious emotional distress, closed circuit television, sixth amendment, sexual offense, face to face, face-to-face, reliability, intimidation, suffering, front, sexual abuse, constitutional right, intimidated, accusing, Family Law Article

COUNSEL: William M. Ferris (Lynn T. Krause, on the brief), Baltimore for appellant Wildermuth; and Nancy L. Cook, Assigned Public Defender, Washington, District of Columbia, for appellant McKoy.

   Ronald M. Levitan, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on the brief) Baltimore, for appellee.

JUDGES: Murphy, C.J., and Eldridge, Cole, Rodowsky, Couch, * McAuliffe and Adkins, JJ.

* Couch, 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: ADKINS

OPINION: [*500] [**277] In separate jury trials in the Circuit Court for Anne Arundel County, appellants Richard Bryan[***2] Wildermuth and James Sylvester McKoy were each convicted of and sentenced for, among other things, child abuse. In each case the alleged child victim was permitted to testify from outside the courtroom via closed-circuit television, pursuant to [*501] Annotated Code, Courts and Judicial Proceedings Article, § 9-102 (1984 Repl.Vol., 1986 Supp.).  Each appellant now launches a multifaceted attack on his convictions. n1£ The central thrust in each case is the contention that § 9-102 is unconstitutional because it violates the confrontation clause of the sixth amendment to the United States Constitution (applicable to the states through the fourteenth amendment) as well as art. 21 of the Maryland Declaration of Rights.  We reject those contentions.  We also reject appellants' other constitutional assaults on § 9-102, and affirm McKoy's convictions.  We reverse Wildermuth's convictions and remand his case for a new trial, however, because we agree that in his case the threshold showing essential to the invocation of § 9-102 has not been made.

n1 Both appellants appealed to the Court of Special Appeals.  Because of the public importance of several of the issues involved, we granted certiorari while the cases were still pending in the intermediate appellate court.

[***3]

   I. Section 9-102 and the Right to Confrontation

   Section 9-102 was enacted by Chapters 495 and 499, Acts of 1985. n2£ It provides:

   (a)(1) In a case of abuse of a child as defined in § 5-901 of the Family Law [**278] Article or Article 27, § 35A of the Code, a court may order that the testimony of a child victim be taken outside the courtroom and shown in the courtroom by means of closed circuit television if:

   (i) The testimony is taken during the proceeding; and

   (ii) The judge determines that testimony by the child victim in the courtroom will result in the child suffering serious emotional distress such that the child cannot reasonably communicate.

   (2) Only the prosecuting attorney, the attorney for the defendant, and the judge may question the child.

   (3) The operators of the closed circuit television shall make every effort to be unobtrusive.

   [*502] (b)(1) Only the following persons may be in the room with the child when the child testifies by closed circuit television:

    (i) The prosecuting attorney;

   (ii) The attorney for the defendant;

   (iii) The operators of the closed circuit television equipment; and

   (iv) Unless the defendant objects, any person whose[***4] presence, in the opinion of the court, contributes to the well-being of the child, including a person who has dealt with the child in a therapeutic setting concerning the abuse.

   (2) During the child's testimony by closed circuit television, the judge and the defendant shall be in the courtroom.

   (3) The judge and the defendant shall be allowed to communicate with the persons in the room where the child is testifying by any appropriate electronic method.

   (c) The provisions of this section do not apply if the defendant is an attorney pro se.

   (d) This section may not be interpreted to preclude, for purposes of identification of a defendant, the presence of both the victim and the defendant in the courtroom at the same time.

n2 Each of these chapters enacted identical provisions, one set emanating from a Senate Bill and the other from a House Bill.

   In Wildermuth's case the statute was invoked after Judge Bruce Williams heard testimony from two expert witnesses.  On the basis of that testimony (which we shall[***5] later review in detail), he found that Wildermuth's nine-year-old daughter, the alleged victim, "would be under serious emotional distress were she required to testify in open court in front of the jury and her father and assorted other court personnel and would not be reasonably able to communicate."£ Thus, having made the preliminary finding required by § 9-102(a)(1)(ii), he directed that the alleged victim's testimony "be taken through closed circuit T.V."

   Somewhat different circumstances preceded the use of § 9-102 in McKoy's case. His nine-year-old daughter, the [*503] alleged victim, was called to testify in open court.  She was sworn and responded to a number of questions designed to determine her competence as a witness.  During the course of the questioning, she became upset and seemed unable to answer further, although she indicated she "could answer [the questions] if we went into another room, with the camera. . . ."£ During a lengthy discussion of the constitutionality of § 9-102, Judge Robert Heller noted that the child "was having difficulty in being able to reasonably communicate" but raised some question as to what was meant by the phrase "serious emotional[***6] distress."£ The State was prepared to present expert testimony on the § 9-102(a)(1)(ii) threshold issue, but that became unnecessary when McKoy's trial counsel said he was not opposing the use of closed circuit television on the ground that the prerequisite conditions had not been established.  Judge Heller thereafter directed that the alleged victim's testimony be taken pursuant to § 9-102.

   In each case the alleged victim was taken to the judge's chambers.  The subsequent procedure was described by Judge Heller when he explained it to the jury in McKoy's case:

   . . . [T]his closed circuit television arrangement is an arrangement which is allowed under the Maryland law.  However[,] I instruct you that you are not to give the testimony of this witness any greater or lesser weight than you would . . . if she were testifying before you here in the courtroom.

   [**279] Her testimony is not recorded.  It is live testimony and will actually be taking place in the room which is adjacent to this room.  Now under the arrangement that is permitted under the Maryland law, Mr. Caroom representing the State, and Mr. Ronay representing Mr. McKoy, will be present with the witness in[***7] this closed chamber or in this other room . . . and Mr. Caroom, who has called her or will call her as a witness, will, of course, examine her and then she will be subject to cross-examination by Mr. Ronay on behalf of the Defendant.  And the process will [*504] be the same as if the witness were in the courtroom. If there are any objections, the objections will be noted.  The only difference will be that if there are objections, the Counsel -- the two attorneys will come from the room behind us here, behind me, and will come out through this door and approach me here at the bench so that I can make a decision and a ruling on any objections that are made. . . .

   Furthermore, because the Defense attorney will be in the room next door and not seated with his client, and because there may be occasions that his client might want to say something to him -- or vice versa, there will be telephone communications directly between Mr. Ronay and Mr. McKoy.  You see a telephone that's -- sitting on top of the counsel table and you will see that Mr. McKoy will have that available to him and will probably have [it] at his ear just to listen to his attorney in the event there is any reason[***8] to discuss anything between the two of them, just so they have the same accessibility to each other as they would if they were sitting here at the counsel table together.

   A. Scope of the Right to Confrontation

   Appellants assert that this procedure, clearly sanctioned by § 9-102, falls afoul of the sixth amendment to the United States Constitution and of art. 21 of the Maryland Declaration of Rights.  The latter in pertinent part declares:

   That in all criminal prosecutions, every man hath a right . . . to be confronted with the witnesses against him. . . .
 
The federal provision echoes that of Maryland:

   In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . .n[3]
 
[*505] Both Wildermuth and McKoy would persuade us that their rights of confrontation were denied because the § 9-102 procedure denied them physical confrontation with the victims-witnesses; while each of them could see the testifying witness on the television monitor, neither witness could see the accused or, for that matter, the judge and jury.  Analysis of these arguments requires us to consider the scope of the right[***9] of confrontation conferred by the above provisions.  We consider the sixth amendment and art. 21 together, since both secure the same right.  Tichnell v. State, 290 Md. 43, 55, 427 A.2d 991, 997 (1981); Crawford v. State, 282 Md. 210, 211, 383 A.2d 1097, 1098 (1978).

n3 The Maryland provision first appeared as art. 19 of our Declaration of Rights of 1776.  The sixth amendment was not adopted until 1791.  It is applicable to the states via the fourteenth amendment.  Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).

   "[T]he Confrontation Clause comes to us on faded parchment."£ California v. Green, 399 U.S. 149, 173-174, 90 S.Ct. 1930, 1943, 26 L.Ed.2d 489, 506 (1970) (Harlan, J., concurring).  This is because "a satisfactory history of the right of confrontation has yet to be written."£ Graham, The Right to Confrontation and the Hearsay Rule: Sir Walter Raleigh Loses Another One, 8 Crim.L.Bull. 99, 104 (1972) [footnote omitted].  In Gregory v. State, 40 Md.App. 297, [***10] 306-324, 391 A.2d 437, 443-454 (1978), Judge Wilner has traced much of the background.  There is a helpful account in Stores v. State, 625 P.2d 820, 823 n. 4 (Alaska 1980). And see 1 J. Stephen, History of the Criminal Law of England, 326-358 (1883), and 9 W. Holdsworth, A History of English Law, 214-219 (3d ed. 1944).

   [**280] The sources tell us that in the late sixteenth and early seventeenth centuries in England, proof in criminal cases was often by way of reading depositions, confessions of accomplices and so on, despite demands by the accused that the witnesses against him be required to confront him face to face. n4

n4 At Sir Walter Raleigh's treason trial in 1603, for instance, one of Raleigh's accusers was Lord Cobham, and Cobham's accusation was by ex parte written statement.  Raleigh (without success) argued:

   The proof of the Common Law is by witness and jury; let Cobham be here, let him speak it.  Call my accuser before my face and I have done.
 
2 Howell's State Trials 15 (Corbett's ed. 1816).  Sir Walter Raleigh was not the only 16th or 17th Century accused who made similar demands.  See, e.g., the trial of John Udall in 1590: "My lords, I answer it thus, denying it to be his Testimony; for if it be, why is he not present to verify it face to face, according to the law?"£ 1 Howell's State Trials 1282 (1816); the trial of John Lilburne in 1637; 3 Howell's State Trials 1322 (1816); Throckmorton's Trial of 1554, 1 Howell's State Trials 879 (1816); Lord Strafford's Trial of 1680, 7 Howell's State Trials 1293, 1341 (1816).

[***11]

   [*506] By the end of the seventeenth century, however, this practice of prosecution by written deposition, the same sources explain, had been replaced by one in which the accuser was produced in open court.  Thus, in 1768, Blackstone could look with his customary pride at the "confronting of adverse witnesses," 3 W. Blackstone, Commentaries on the Law of England, 373 (Facsimile at 1st ed. 1768), a practice he described as "this, the English way of giving testimony, ore tenes," in contrast to methods used by lesser mortals on the continent.  Id. at 374. n5

n5 The language quoted from Blackstone deals with the trial of civil actions, but he points out that the "doctrine of evidence upon pleas of the crown is in most respects the same as in civil actions."£ 4 Commentaries on the Law of England, 350 (1769).

   Thus, when the first Maryland Declaration of Rights was adopted in 1776, and when the sixth amendment was adopted some 15 years later, there was a valued and well-established practice in[***12] England that witnesses against the accused ordinarily would meet the accused face to face in open court.  But just how the framers of the Maryland Declaration of Rights or the United States Bill of Rights viewed that practice, or what precise interests they thought it would serve, we do not know.  In that regard, the historical record is silent.  See B. Schwartz, The Bill of Rights: A Documentary History (1971).  Nevertheless, the Supreme Court has identified a reason for the practice.  It was
 
[*507] to prevent depositions or ex parte affidavits, such as were sometimes used in civil cases, being used against the prisoner in lieu of personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.
 
Mattox v. United States, 156 U.S. 237, 242-243, 15 S.Ct. 337, 339, 39 L.Ed. 409, 411 (1895). We have expressed a similar view: "It[***13] is the primary object of the constitutional provision requiring confrontation to prevent depositions or ex parte affidavits from being used against a person accused of crime in lieu of personal examination and cross-examination of the witnesses."£ Crawford, 282 Md. at 214, 383 A.2d at 1099 [citations omitted].
 
   Authorities do not always agree on what lies at the core of the confrontation right.  Wigmore, on the one hand, takes the view that the indispensable purpose of confrontation is to protect the right of cross-examination. "So far, then, as the essential purpose of confrontation is concerned, it is satisfied if the opponent has had the benefit of full cross-examination."£ 5 Wigmore on Evidence, § 1399 (Chadbourn rev. 1974). n6

n6 This notion derives in a large part from Wigmore's concept that the development of the confrontation right itself was an outgrowth of the development of the hearsay rule.  5 Wigmore, § 1397.

   [**281] Despite his argument for the primacy of cross-examination, [***14]Wigmore concedes that there is a "secondary" concern, although he characterizes it as "dispensable. . . ."£ 5 Wigmore, § 1395 at 153-155. According to him, this secondary benefit of confrontation lies in the ability of the judge and jury to observe the witness's "deportment while testifying" and thus "to obtain the elusive and incommunicable evidence" produced by that observation -- evidence [*508] thought to aid in the evaluation of credibility.  5 Wigmore, § 1395 at 153 [emphasis in original].  See also 5 Wigmore § 1399.  But while Wigmore notes that this procedure may produce "a certain subjective moral effect . . . upon the witness," he discounts the truth-enhancing aspect of this sort of confrontation as a supposition of an "earlier and more emotional period. . . ."£ 5 Wigmore § 1395 at 153 n. 2.  In his view the advantage derived from observation of the witness is for the benefit of the tribunal, and
 
does not arise from the confrontation of the opponent and the witness; it is not the consequence of those two being brought face to face. It is the witness' presence before the tribunal that secured the secondary advantage. . . [***15].
 
5 Wigmore § 1395 at 154 [emphasis in original].

   A number of courts have adopted this reasoning, and have concluded or suggested that the confrontation clause does not demand an "eyeball-to-eyeball" encounter between accusing witness and accused.  See, State v. Coy, 397 N.W.2d 730, 733-734 (Iowa 1986), appeal filed April 15, 1987, prob. juris noted,    U.S.   , 107 S.Ct. 3260, 97 L.Ed.2d 760 (1987); Commonwealth v. Willis, 716 S.W.2d 224, 227-231 (Ky.1986); Appeal in Pinal County Juvenile Action, 147 Ariz. 302, 304-306, 709 P.2d 1361, 1363-1364 (App.1985); People v. Johnson, 146 Ill.App.3d 640, 646-52, 100 Ill.Dec. 330, 334-337, 497 N.E.2d 308, 312-315 (1986); State v. Daniels, 484 So.2d 941, 944 (La.Ct.App.1986); People v. Algarin , 129 Misc.2d 1016, 1021, 498 N.Y.S.2d 977, 981 (N.Y.Sup.Ct.1986) (requirement of "face to face" confrontation does not mandate physical confrontation; it requires no more than opportunity to cross-examine).

   Although the Supreme Court has as yet made no precise determination on this point, it has on numerous occasions expressed preference for "face to face" contact between the accuser and the accused. [***16] In Kirby v. United States, 174 U.S. 47, 55, 19 S.Ct. 574, 577, 43 L.Ed. 890, 894 (1899), for example, the Court reasoned that "a fact which can be primarily established only by witnesses cannot be proved [*509] against an accused . . . except by witnesses who confront him at the trial, upon whom he can look while being tried."£ See also Dowdell v. United States, 221 U.S. 325, 330, 31 S.Ct. 590, 592, 55 L.Ed. 753, 757 (1911); Delaware v. Fensterer, 474 U.S. 15, 18-19, 106 S.Ct. 292, 294, 88 L.Ed.2d 15, 18 (1985); and Lee v. Illinois, 476 U.S. 530,    , 106 S.Ct. 2056, 2062, 90 L.Ed.2d 514, 515 (1986). But see California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489, 497 (1970); and Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347, 353 (1974).

   Despite the debate surrounding the scope of the rights conferred by the confrontation clause, one proposition remains undisputed.  The essential purpose of the confrontation clause is truth-finding.  With this in mind a number of legal scholars have espoused a view contrary to that of Wigmore.  Stephen, for instance, noted the relationship between confrontation and truth-finding: [***17]the practice of face-to-face confrontation is "not only more humane, but more conducive to the discovery of truth than the earlier" practice of trial on ex parte deposition. J. Stephen, 1 History of Criminal Law of England 359 (1st ed. 1883).  See also McCormick on Evidence, § 245, at 727 (3d ed. 1984): "The solemnity of the occasion and possibility of public disgrace can scarcely fail to impress the witness, and falsehood no doubt becomes more difficult if the person against whom directed is present."£ Id.

   The search for truth, a major basis for the requirement of confrontation, ordinarily requires cross-examination at a criminal trial.  That proposition, as we have seen, is [**282] universally accepted.  The search for truth also ordinarily requires the accusing witness to testify in court in the presence of the fact-finder and the accused.  There is virtual unanimity as to the first portion of this second proposition and considerable agreement as to the second. n7

n7 See United States v. Benfield, 593 F.2d 815, 821 (8th Cir.1979); State v. Warford, 223 Neb. 368, 374, 389 N.W.2d 575, 580-582 (1986); Herbert v. Superior Court, 117 Cal.App.3d 661, 667, 172 Cal.Rptr. 850, 853 (1981); State v. Vigil, 103 N.M. 583, 586, 711 P.2d 28, 31 (1985) where other courts have found that the confrontation clause does demand an "eyeball to eyeball" encounter between accusing witness and accused.

[***18]

   [*510] At least arguably, all of these confrontation requirements were met in these cases.  Cross-examination occurred.  While the accusing witnesses were not actually in court, they were under oath, in the presence of counsel, and in the view of juries, judges, and defendants.  The judges presided over and controlled the proceedings.  State v. Warford, 223 Neb. at 377, 389 N.W.2d at 581-582. But the witnesses could not see the defendants.  Does confrontation ordinarily require that the accuser view the accused while the former is testifying? We believe so.  That is consistent with the concept of confrontation as a device to advance the search for truth.

   In United States v. Benfield, 593 F.2d 815 (8th Cir.1979), Cady, an adult kidnapping victim, was reluctant to testify at the trial of Benfield, her alleged kidnapper.  Cady's deposition was taken on videotape under circumstances somewhat like those in the present cases.  Witness Cady was in a room with counsel.  Defendant Benfield was in a separate room, but could observe Cady on a television monitor, halt questioning by sounding a buzzer, and confer with his lawyer.  But Cady could not see Benfield and "was apparently" [***19] kept unaware of Benfield's presence in the building.  Id., 593 F.2d at 817. At trial and over Benfield's sixth amendment objection, the videotape was shown to the jury.

   The Eighth Circuit held that this procedure abridged Benfield's sixth amendment rights.  It said:
 
Normally the right of confrontation includes a face-to-face meeting at trial at which time cross-examination takes place. . . .  Of course, confrontation requires cross-examination in addition to a face-to-face meeting. . . .  The right of cross-examination reinforces the importance of physical confrontation. Most believe that in some undefined but real way recollection, veracity, and communication [*511] are influenced by face-to-face challenge.  This feature is part of the sixth amendment right additional to the right of cold, logical cross-examination by one's counsel.  While a deposition necessarily eliminates a face-to-face meeting between witness and jury, we find no justification for further abridgment of the defendant's rights.
 
Id., 593 F.2d at 821 [footnotes omitted].

   Of like tenor is Herbert v. Superior Court, 117 Cal. App.3d 661, 172 Cal.Rptr. 850 (1981). In that case Herbert[***20] was charged with sexual offenses against a five-year-old child.  At trial, Herbert was seated so that he could hear but could not see the child when she testified.  Nor could the child see him.  The California intermediate appellate court concluded that "[b]y allowing the child to testify against defendant without having to look at him or be looked at by him, the trial judge not only denied defendant the right to confrontation but also foreclosed an effective method for determining veracity."£ Id., 117 Cal.App.3d at 668, 172 Cal.Rptr. at 853. The court explained:

   The historical concept of the right of confrontation has included the right to see one's accusers face-to-face, thereby giving the fact-finder the opportunity of weighing the demeanor of the accuse[r] when forced to make his or her accusation before the one person who knows if the witness is truthful.  A witness's reluctance to face the accused may be the product of fabrication rather than fear or embarrassment.
 
Id., 117 Cal.App.3d at 671, 172 Cal.Rptr. at 855. See also State v. Mannion, 19 Utah 505, 512, 57 P. 542, 544 (1899) (Defendant's confrontation right denied when child victim [**283] [***21] of rape testified from part of courtroom distant from defendant and with her back to him.  The defendant "had the right, not only to examine the witnesses, but to see into the face of each witness while testifying against him, . . . the right to see and be seen, hear and be heard. . . .")

   That an actual physical two-way confrontation, between accuser and accused, is normally an element of the right of confrontation is consistent with our previous reading of art. [*512] 21 of the Declaration of Rights.  In Johns v. State, 55 Md. 350 (1881), for instance, our predecessors permitted the use of certain documentary evidence at trial (a certificate of the Comptroller of the Treasury) but pointed out that
 
Where the prosecution is to be maintained by the testimony of living witnesses . . . they are required to be produced in court, confronted with the accused, and deliver their testimony under the sanction of an oath, and be subject to cross-examination. In other words, no witness shall give his testimony in secret, or out of the presence of the accused; and no party shall be put upon his trial upon mere hearsay evidence; but the witness shall be produced and be subject to[***22] all the tests that the law has devised for the full disclosure of the truth.
 
Id., 55 Md. 350, 360 (1881).

   And in Dutton v. State, 123 Md. 373, 91 A. 417 (1914), Chief Judge Boyd cited Johns in reversing a conviction of assault with intent to rape.  Dutton was excluded from the room in which the complaining witness gave her testimony. This, held the Court, violated art. 21 of the Declaration of Rights, because Dutton "had the constitutional right to be confronted by the witnesses. . . ."£ Id., 123 Md. at 389, 91 A. at 423. The Court mentions several purposes served by the right.  One relates to cross-examination: the defendant could make useful suggestions during examination of the witness.  Another clearly involves not only the personal presence of the accused, but the ability of the witness to observe him: "It might be that in the course of her examination in the presence of the accused the prosecuting witness would discover that she had made a mistake in the identity of the party committing the crime."£ Id.  See also State v. Collins, 265 Md. 70, 79, 288 A.2d 163, 168 (1972) (presence of defendant's attorney at deposition did not satisfy defendant's[***23] art. 21 "personal right . . . to be directly confronted by the witnesses against him. . . .")

   We conclude, then, that the constitutional right of confrontation ordinarily includes, among other things, the right of the accused to be seen by his accuser when the accuser is [*513] testifying against the accused.  This requirement supports the truth-seeking function of confrontation because it tends to impress upon the witness the seriousness and solemnity of the occasion, and as a consequence, the necessity for truthful testimony.  The need for truthfulness is further enhanced by the witness's awareness that the accused has personal knowledge of the facts bearing on his or her involvement in the offense charged. n8

n8 We recognize that under some circumstances the presence of the accused may intimidate the witness and thus induce untruthfulness.  See, e.g., Commonwealth v. Willis, 716 S.W.2d at 230 (There is a difference between confrontation and intimidation); State v. Daniels, 484 So.2d at 944 ("The Constitution mandates confrontation, not intimidation").  But "intimidation" also may induce truthfulness, and even the universally recognized confrontational right of cross-examination can be exceedingly intimidating.  Intimidation in a general sense, then, is not a reason for denying confrontation that requires the presence of the accused before the accuser. Whether a particular accuser is especially "intimidated" by the circumstances of a particular case, see Graham, Indicia of Reliability and Face to Face Confrontation: Emerging Issues in Child Sexual Abuse Prosecutions, 40 U. Miami L.Rev. 19, 74 (1985), and whether that sort of "intimidation" may excuse strict application of the confrontation clause, we shall discuss in section B, infra.

[***24]

   Nevertheless, procedures like those used in these cases -- procedures under which the accusing witness cannot see the accused while the witness is testifying -- may under certain circumstances be permissible under the sixth amendment and art. 21 confrontation [**284] clauses.  It remains to be seen whether those circumstances are present here. n9

n9 Section 9-102 does not, in express terms, prohibit a procedure which would permit the witness to see the defendant.  It requires only that the witness and the defendant be in separate rooms while the witness is testifying. Thus, it might permit the sort of testimony by two-way closed-circuit television that was found to meet constitutional muster in Kansas City v. McCoy, 525 S.W.2d. 336 (Mo.1975) (en banc); and People v. Algarin, 129 Misc.2d 1016, 498 N.Y.S.2d 977 (N.Y.Sup.Ct. 1986). On the other hand, the titles to Chs. 495 and 499, Acts of 1985, both state as a purpose of the section that "the child's testimony be taken outside . . . the physical presence of the defendant. . . ."£ This may indicate an intent to prevent any view of the defendant by the witness during testimony.  A contrary reading might well frustrate a goal of the statute, of which more below.  In any case, the procedures employed pursuant to the statute in the cases before us without doubt concealed the defendants from the witnesses.

[***25]

   [*514] B. Application of Section 9-102 Does Not Result in the Unconstitutional Denial of Defendants' Right of Confrontation

   As both Wildermuth and McKoy concede, the right to confrontation, fundamental as it is, is not absolute.  It "must occasionally give way to considerations of public policy and the necessities of the case."£ Mattox, 156 U.S. at 243, 15 S.Ct. at 340, 39 L.Ed. at 411. See also e.g., Ohio v. Roberts, 448 U.S. 56, 64, 100 S.Ct. 2531, 2538, 65 L.Ed.2d 597, 606 (1980); Moon v. State, 300 Md. 354, 368-369, 478 A.2d 695, 701 (1984); Collins, 265 Md. at 77-78, 288 A.2d at 167-168. n10

n10 Under some circumstances, the right may be forfeited or waived.  See, e.g., Beasley v. State, 271 Md. 521, 533, 318 A.2d 501, 507-508 (1974); United States v. Balano, 618 F.2d 624, 630 (10th Cir.1979), cert. denied, 449 U.S. 840, 101 S.Ct. 118, 66 L.Ed.2d 47 (1980); United States v. Carlson, 547 F.2d 1346, 1357-1358 (8th Cir.1976), cert. denied, 431 U.S. 914, 97 S.Ct. 2174, 53 L.Ed.2d 224 (1977) (threats to life of witnesses may justify some restriction on cross-examination).  And, disruptive behavior on the part of the defendant may justify removal from his own trial.  See Illinois v. Allen, 397 U.S. 337, 343-344, 90 S.Ct. 1057, 1061, 25 L.Ed.2d 353, 359 (1970); and Bowers v. State, 306 Md. 120, 128, 507 A.2d 1072, 1076 (1986).

   A defendant may also waive his right to confrontation by stipulating to the admission of evidence, Williams v. Oklahoma, 358 U.S. 576, 584, 79 S.Ct. 421, 426, 3 L.Ed.2d 516, 521-522 (1959), or by entering a plea of guilty, Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274, 279 (1969). None of these circumstances, however, is presented by the records before us.

[***26]

   In Ohio v. Roberts, supra, the prosecution sought to introduce, at trial, the transcribed testimony given by a witness at a preliminary hearing.  Recognizing that the confrontation clause "reflects a preference for face-to-face confrontation," Id., 448 U.S. at 63, 100 S.Ct. at 2537, 65 L.Ed.2d at 607, the Supreme Court declared:

   In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable.  Even then, his statement is admissible only if it bears adequate [*515]"indicia of reliability."£ Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.  In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.
 
Id., 448 U.S. at 66, 100 S.Ct. at 2539, 65 L.Ed.2d at 608. The Court found the transcript admissible because the witness was unavailable despite the prosecution's good faith efforts to locate her, and because the opportunity to cross-examine, and the exercise of that opportunity at the preliminary hearing, afforded the requisite indicia of[***27] reliability. Id., 448 U.S. at 73-77, 100 S.Ct. at 2542-2545, 65 L.Ed.2d at 612-615. From this holding we learn that if there is sufficient necessity for not permitting the accused to confront his accuser directly (unavailability), and if the situation is such that there is some reasonable substitute for the truth-seeking confrontation requirement of physical presence (reliability), then the right of confrontation may still be satisfied. n11

n11 United States v. Inadi, 475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986), teaches that in some circumstances "unavailability" is not a prerequisite to the use of hearsay.  The case holds that a co-conspirator's statement, made during the progress of the conspiracy, is admissible regardless of availability.  This is because special characteristics regarding that sort of statement constitute evidence which cannot be replicated by in-court testimony at trial.  Id., 475 U.S. at 394, 106 S.Ct. at 1126, 89 L.Ed.2d at 404-405. We do not read Inadi as removing the necessity requirement in cases like those before us.  But see Johnson v. State, 292 Ark. 632, 732 S.W.2d 817 (1987); and State v. Coy, 397 N.W.2d at 734.

[***28]

   [**285] In the cases before us, there is little doubt about the "reliability" prong of the Roberts test.  Section 9-102, as applied in these cases, provides for most of the aspects of confrontation that enhance the reliability of testimony: cross-examination, testimony under oath, ability of judge, jury, and accused to view the witness during the testimony.  While a few cases have questioned the ability of television to reproduce with sufficient accuracy what would be seen in an actual physical confrontation, see, e.g., Stores v. State, [*516] 625 P.2d at 828-829, and Hochheiser v. Superior Court, 161 Cal.App.3d 777, 794, 208 Cal.Rptr. 273, 284 (1984), most courts that have considered the question have concluded that this modern technology is sufficient for that purpose.  See, e.g., Commonwealth v. Willis, 716 S.W.2d at 230 ("A photographic or electronic presentation [of evidence] is not perfect as a substitute for live testimony, but it will suffice"); State v. Melendez, 135 Ariz. 390, 393, 661 P.2d 654, 657 (App.1983). State v. Sheppard, 197 N.J.Super. 411, 435, 484 A.2d 1330, 1344 (1984); People v. Algarin, 129 Misc.2d at 1022, 498 N.Y.S.2d[***29] at 981. The method of communication between defendants and counsel was sufficient to permit cross-examination and thus to enhance reliability. People v. Johnson, 146 Ill.App. at 649, 100 Ill.Dec. at 336, 497 N.E.2d at 314.

   The only reliability function not substantially provided by one-way closed-circuit television is that derived from the witness's view of the accused.  The question becomes whether the showing under the "necessity" prong of the test is sufficiently strong to overcome that lack.  We first approach the question in a general way, looking at statutory language and background.  In Section C, infra, we shall explore the specific application of the "necessity" factor to Wildermuth's case.

   The problem of child abuse, and particularly sexual child abuse, is one that appears to many to be of epidemic proportions.  See generally, Libai, The Protection of the Child Victim of a Sexual Offense in the Criminal Justice System, 15 Wayne L.Rev. 977 (1969). Among the troubling aspects of this epidemic are reluctances to report offenses, difficulties in investigating them, and obstacles to prosecuting them.  A major obstacle to prosecution is the fact that the alleged[***30] child victim is often the principal witness for the prosecution, and young children often find it extraordinarily difficult to testify about sexual abuse, especially when the alleged abuser may be a relative.  Moreover, to force a child to give this sort of testimony, in open court, in the presence of the accused, may further traumatize the child. [*517]Note, The Testimony of Child Victims in Sex Abuse Prosecutions: Two Legislative Innovations, 98 Harv.L.Rev. 806, 807 (1985); Note, A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases, 83 Colum.L.Rev. 1745, 1746 (1983).
 
   In Maryland, the Governor's Task Force on Child Abuse in its Interim Report (Nov. 1984) documented the existence of the problem in our State.  Interim Report at 1.  It brought the picture up to date in its Final Report (Dec. 1985). In the first six months of 1985, investigations of child abuse were 12 percent more numerous than during the same period of 1984.  In 1979 4,615 cases of child abuse were investigated; in 1984, 8,321.  Final Report at iii.  In its Interim Report at 2, the Commission proposed legislation that, with some changes, became § 9-102.  The proposal[***31] was "aimed at alleviating the trauma to a child victim in the courtroom atmosphere by allowing the child's testimony to be obtained outside of the courtroom."£ Id., at 2.  This would both protect the child and enhance the public interest by encouraging effective prosecution of the alleged abuser.

   Maryland was not alone in seeking a solution to one aspect of the child abuse problem through statutory (or court rule) authorization for closed-circuit television testimony or, in some cases, videotaped depositions. Professor Michael H. Graham [**286] reports that by March of 1985, 16 states had enacted statutes authorizing closed-circuit television testimony in child abuse cases and 25 states (some of them the same) had provided for videotape depositions in such cases.  See Graham, Child Sexual Abuse Prosecutions: The Current State of the Art, 40 U. Miami L.Rev. 1, 7-8 n. 10 (1985). These states have been responding to what they see as a serious problem by taking steps to protect the child victim of sexual abuse. The need for some remedy in this area is widely perceived and courts have looked to this perception in undertaking the necessary analysis. n12£ Warford, [***32] [*518] 223 Neb. at 374, 389 N.W.2d at 580; Sheppard, 197 N.J.Super. at 419-423, 484 A.2d at 1334-1337; Algarin, 129 Misc.2d 1023-1024, 498 N.Y.S.2d at 982.

n12 The use of closed-circuit television testimony and videotaped depositions are not, of course, the only remedies for this problem.  On a proper showing of compelling public interest, a courtroom may be closed.  If a child witness's psychological problem has to do with testifying before a large number of strangers (courtroom spectators), the courtroom could be closed, if the facts were sufficiently strong to warrant that drastic action.  See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982) (court closure to protect witness permissible, but decision must be on case-by-case basis, considering various factors).  See also Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980); Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979); Buzbee v. Journal Newspapers, Inc., 297 Md. 68, 465 A.2d 426 (1983); Baltimore Radio Show v. State, 193 Md. 300, 67 A.2d 497 (1949), cert. denied, 338 U.S. 912, 70 S.Ct. 252, 94 L.Ed. 562 (1950); Journal Newspapers, Inc. v. State, 54 Md.App. 98, 456 A.2d 963 (1983); Erman v. State, 49 Md.App. 605, 434 A.2d 1030 (1981); Patuxent Publishing Corporation v. State, 48 Md.App. 689, 429 A.2d 554 (1981).

[***33]

   One of the aims of the remedial measures, including § 9-102, is to safeguard the physical and psychological well-being of child victims by avoiding, or at least minimizing, the emotional trauma produced by testifying. The "protection of minor victims of sex crimes from further trauma and embarrassment" is a compelling government interest.  Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607, 102 S.Ct. 2613, 2620, 73 L.Ed.2d 248, 257-258 (1982). But in the confrontation context, something different from a general compelling interest must be shown.  The need (unavailability) must be specific to the particular witness whose testimony is sought:
 
[T]here can be no more justification for excusing all child victims from testifying than for imposing the duty on all of them.  Each case merits its own individual decision.
 
Libai, The Protection of the Child Victim of a Sexual Offense in the Criminal Justice System, 15 Wayne L.Rev. at 1009. Thus, in People v. Algarin, which involved 15 alleged victims, the trial court found only three sufficiently "vulnerable" to justify use of New York's closed-circuit [*519] television procedures.  Id., 129 Misc.2d[***34] at 1018-1019 n. 4, 498 N.Y.S.2d at 979-980 n. 4.

   The Maryland legislature recognized this requirement of specific determination of need or unavailability. Before the protective procedures of § 9-102 may be invoked, the judge must determine "that testimony by the child victim in the courtroom will result in the child suffering serious emotional distress such that the child cannot reasonably communicate."£ Section 9-102(a)(1)(ii).  The provision effectively defines "serious emotional distress" as a condition under which "the child cannot reasonably communicate."£ A finding to that effect is tantamount to a finding of unavailability in the Roberts sense, and meets the necessity prong of the Roberts test.  Commonwealth v. Willis, 716 S.W.2d at 230; People v. Johnson, 146 Ill.App.3d at 646, 100 Ill.Dec. at 334, 497 N.E.2d at 312 (child witness who is physically present is nevertheless "unavailable" for confrontation purposes if psychologically unable to testify).  And see Long v. State, 694 S.W.2d 185 (Tex.Ct.App.1985), aff'd en banc, No. 867-85 (Tex.Crim.App.) (July 1, 1987) ("Unquestionably in specific cases a compelling state interest will exist to a degree[***35] sufficient to create a necessity that requires a diminution of a defendant's right of confrontation. But this necessity must be the practical equivalent of a witness's [**287] unavailability").  See also 40 U. Miami L.Rev., supra, at 92.

   The Maryland statute, indeed, is similar to (but stricter than) the provisions sustained against confrontation clause attack in State v. Vigil, 103 N.M. 583, 711 P.2d 28 (App. 1985). Under the provisions involved there, (N.M.Stat.Ann. § 30-9-17 (1978, Repl.Pamp.1984) and N.M.Stat.Ann.Crim. Proc. Rule 29.1 (1978, Repl.Pamp. 1985)) the court could permit use of a videotape deposition upon a "showing that the child may be unable to testify without suffering unreasonable and unnecessary mental or emotional harm."£ Id., 103 N.M. at 585, 711 P.2d at 30. Compare with the New York law applied and upheld in Algarin (N.Y.Crim.Proc.Law, art. 65, § 65.00 et seq. (Consol.1985), allowing the [*520] court to declare a child witness "vulnerable" when the court "determines from its own observation that a child witness who has been called to testify at a criminal proceeding is suffering severe mental or emotional harm and is[***36] therefore physically or mentally unable to testify.")£ Id. § 65.10.(1).

    The degree of confrontation allowed by § 9-102, then, satisfies the constitutional requirements if there is compliance with subsection (a)(1)(ii) as a condition precedent to application of the statute.  The statute is valid as against the general confrontation clause attacks mounted by Wildermuth and McKoy.

   So far as McKoy is concerned, that ends the confrontation matter.  Although in his brief he argues that "the record does not support a finding that the state's interest in protecting the child against trauma could in fact be furthered by removing her from the courtroom," at trial he conceded that he was not opposing the use of closed circuit television on the ground that the prerequisite conditions had not been established.  Since he did not contest the existence of the predicate condition below, that issue is not before us. Md.Rule 885.  Wildermuth, however, did raise the issue.  We turn now to the question of whether the evidence before Judge Williams in Wildermuth's case was sufficient to support his subsection (a)(1)(ii) finding.

   C. The Finding of "Unavailability" in Wildermuth's Case

   We have[***37] pointed out that the type of confrontation permitted by § 9-102 can be constitutionally justified only if the prerequisites of Ohio v. Roberts, supra, are met.  One of those prerequisites is a showing of witness unavailability -- that is, a degree of necessity that supports use of a procedure (or the sort of evidence) that would otherwise not satisfy the confrontation requirements.  As we have explained, we are persuaded that if testimony in open court will indeed "result in the child [witness] suffering serious emotional distress" as that phrase is statutorily defined, there is sufficient unavailability. The question we now [*521] consider is whether Judge Williams properly found the existence of that condition.

   Wildermuth's case was called for trial on 24 July 1986.  As soon as the assistant state's attorney had done that, he moved to invoke § 9-102.  In support of this motion, he called two expert witnesses.  The first was Janice Thompson, who had been a "counselor psychologist" for "[a]bout three and a half years."

   Ms. Thompson had met with the nine-year-old child involved in the case on several prior occasions.  She described the child as "shy" but "communicative."£ [***38] When asked to state her opinion "as to what [the child's] emotional state and ability to communicate would be if she [the child] were called upon to testify about these things in court today in front of a jury of twelve adults that she never had met before, in the presence of her father, lawyer[s] and other . . . court personnel," Ms. Thompson replied: "I believe that she would be fairly intimidated by the large number of strangers."£ A bit later the following exchange occurred:

   [Ms. Thompson] I believe it's very difficult for a child to stand before both parents and to say anything against either parent. . . .  They can talk . . . to an objective other person much easier than when the parents are there.

   [**288] Q. (By Mr. Caroom [Assistant State's Attorney]): Okay.  You . . . your answer just now was in terms of any child.

   A. Yes.
 
   Q. Now specifically as to [the child witness] with her personality and emotional state that we've discussed, what would your opinion be as to [her]?

   A. The same.

   Q. And would she . . . have it better or worse than any -- any other average child would you say under these circumstances?
 
An objection to the last question was[***39] sustained and direct examination by the State ended.  On cross-examination Ms. Thompson opined that testimony in open court would be "a [*522] very frightening experience" for the child and that "it would be almost impossible for her to answer questions in front [of] such a large group of people whom she does not know."£ She thought, however, that the child would tell the truth.  Asked whether the child "could not . . . or would not respond" to questions in the courtroom, she "could not be sure of that."£ And she agreed that any nine-year-old child would have similar difficulties in responding to questions in court.

   The next witness was Robin Davenport, Director of the Victim/Witness Assistance Center in the Anne Arundel County State's Attorney's Office.  Ms. Davenport, who had worked as a social worker and held a Bachelor's degree in counseling, was a veteran of five and a half years service in the Victim/Witness Assistance Center.  She had had extensive experience in counseling children from "different emotional and psychological backgrounds."£ She had met four or five times with the potential child witness.

   Ms. Davenport thought the child
 
has, uhm, an extremely[***40] difficult time communicating, uhm, about -- about things that seem to be emotionally traumatic for her, particularly for her age. . . .  [F]or a nine-year old she is really having a very, very difficult time verbalizing the -- the things that -- that are relevant to this case.
 
In response to another question she added:

   My opinion is that [the child] probably would not be able to answer questions that -- that were emotion -- that -- that answers were emotionally traumatic to her.  I -- I don't believe she'd be able to do it faced with all these people, and specifically in front of her father.
 
On cross-examination, Ms. Davenport explained that the child "would be intimidated . . . as many children are in alleged sexual abuse cases. . . ."

   After hearing argument Judge Williams found that the child
 
[*523] is reticent and unable to verbalize in certain situations.  And I think both witnesses have indicated that she would be under serious emotional distress were she required to testify in open court in front of the jury and her father and assorted other court personnel and would not be able to communicate.
 
He granted the State's motion.

   We can[***41] appreciate the judge's sympathy with the potential child witness, but we cannot deduce from the testimony we have summarized anything that would support a finding that the testimony in open court "will result in the child suffering serious emotional distress such that the child cannot reasonably communicate."£ The statute sets a difficult standard, as it should, when dealing with matters involving the constitutional rights of a presumptively innocent defendant.

   Ms. Thompson's testimony related chiefly to young children in general, and at the most suggested that the child (or any child) would find it "hard to respond at all in the courtroom."£ But "hard to respond" does not come close to "serious emotional distress such that the child cannot reasonably communicate."£ Ms. Davenport's testimony was more specific, indicating some degree of intimidation and a greater likelihood of inability to respond.  But she, too, spoke to some extent in terms of all children as a group.  As we have already explained, what is essential to meet the demands of the Roberts's "unavailability" [**289] or "necessity" requirement (as well as the § 9-102(a)(1)(ii) predicate) is a specific demonstration[***42] that the particular child witness concerned crosses the high statutory threshold.  Warford, 223 Neb. at 376-377, 389 N.W.2d at 581 ("There should be a particularized showing on the record that the child would be further traumatized or was intimidated by testifying in the courtroom as in front of the defendant").  Long v. State, supra, and see Hochheiser, 161 Cal.App.3d at 793, 208 Cal.Rptr. at 283. That did not happen here.  Moreover, Judge Williams never questioned or even observed the child witness before he made his ruling.  While personal observation [*524] by the judge may not be a sine qua non under § 9-102, it should be the rule rather than the exception. See Hughes v. Arkansas, 292 Ark. 619, 732 S.W.2d 829 (1987).

   On the one hand, a judge's subjective and self-justifying recollections of a child's demeanor, absent support in the record, will not be enough to justify a finding that limits the right of confrontations. Herbert, 117 Cal.App.2d at 670, 172 Cal.Rptr. at 855. On the other hand, expert testimony may not be essential to establish the necessary predicate.  Washington v. State, 452 So.2d 82, 83 (Fla.Dist.Ct.App. 1984). For example, the[***43] testimony of a parent may be sufficient, when combined with the child's own testimony and judicial observation of the child.  State v. Cooper, 291 S.C. 351, 353 S.E.2d 451, 456 (1987). The statute involved in Algarin required the court to use "its own observations" and the court did.  Id., 129 Misc.2d at 1018-1019, 498 N.Y.S.2d at 979. See also Vigil, 103 N.M. at 585-586, 711 P.2d at 30-31.

   We shall not attempt to list all the possible ways in which evidence may meet the standard or all the ways in which it may fall short.  We repeat, however, that ordinarily the judge should observe and question the child. n13£ Additionally, testimony about the likely impact on the particular child must be specific and must show much more than mere nervousness or excitement or some reluctance to testify.  Long, supra. While the testimony need not be given in the precise words of the statute, it must be clear that the statutory requirements are met in substance.  Raithel v. State, 280 Md. 291, 303, 372 A.2d 1069, 1072 (1977). Testimony about the likely impact on the child testifying must be definite, related to the statutory standard, and specific to the potential child witness[***44] him or herself.  As the court said [*525] in Algarin, there must be "a particularized examination of all the circumstances concerning the impact of public testimony in the presence of the defendant upon the emotional health of the child."£ Id., 129 Misc.2d at 1024, 498 N.Y.S.2d at 983.

 n13 In McKoy's case the judge observed the child while she was questioned. At an early stage of the questioning, the child apparently began to cry and stopped responding to questions.  This may have caused defense counsel to conclude that the § 9-102(a)(1)(ii) standard had been met, and thus produced his concession to that effect.  See pp. 503 and 520, supra.

   The evidence in Wildermuth's case was not enough.  We must reverse Wildermuth's conviction and remand for further proceedings.  In the interest of judicial economy, however, we shall address the remaining issues Wildermuth raises, since they may arise at a new trial.  We shall then take up the other issues posed by McKoy.

   II. Wildermuth's Remaining [***45]  Issues

   A. Section 9-102 and the Right to Counsel

   Wildermuth points out that § 9-102(c) makes the section inapplicable "if the defendant is an attorney pro se."£ That is, if the defendant represents himself, § 9-102 cannot be used to implement the closed-circuit television procedure; the pro se defendant will be able to confront the witness in the fullest sense of the word.  According to Wildermuth, this forces the defendant to choose between his constitutional right to counsel and his constitutional right to counsel and his constitutional right to confrontation. The choice, he says, "penalizes the exercise of [his right to counsel]" and is therefore unconstitutional.  We find this contention to be without merit.

   [**290] Appellant Wildermuth correctly asserts that the compulsory election between two constitutional rights, in effect, amounts to the denial of a constitutional right. This principle was enunciated in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968):
 
. . . Garrett was obliged either to give up what he believed, with advice of counsel, to be a valid Fourth Amendment claim, or, in legal effect, to waive his [***46] Fifth Amendment privilege against self-incrimination.  In these circumstances, we find it intolerable that one constitutional right should have to be surrendered in order to assert another.
 
[*526] Id., 390 U.S. at 394, 88 S.Ct. at 976, 19 L.Ed.2d at 1259. See Long, supra. The fallacy of Wildermuth's argument, as advanced in this case, is that § 9-102 does not require anyone to give up one constitutional right in order to assert another.  As we have demonstrated, if the statute is properly applied, there is no unconstitutional denial of the right to confrontation. Thus, a counseled defendant is not deprived of this right, although his exercise of it will be in a manner different from that of the pro se defendant.  In one case, the defendant will not be in view of the witness; in the other, the defendant will.  But there is no choice between constitutional rights.  Thus, we decline to reverse Wildermuth's conviction on this basis.
 
   B. Can § 9-102 Be Invoked on a Charge of Third Degree Sexual Offense?

   Wildermuth was tried for and convicted of child abuse (art. 27, § 35A) and third degree sexual offense (art. 27, § 464B).  He argues that the § 9-102 [***47]procedure is available only with respect to the former offense. Therefore, he asserts his conviction of third degree sexual offense must be reversed.  We disagree.

   Section 9-102(a)(1) tells us that "[i]n a case of abuse of a child as defined in § 5-901 of the Family Law Article or article 27, § 35A of the Code, a court may order that the testimony of a child victim be taken outside the courtroom and shown in the courtroom by means of closed circuit television if . . ." certain conditions are met.  As this language suggests, the two referenced sections contain definitions.  The definitions are virtually identical.  The relevant ones are those of "child" (art. 27, § 35A (b)2, Fam. Law § 5-901(c)); "abuse" (art. 27, § 35A (b)7, Fam. Law § 5-901(b)); and "sexual abuse" (art. 27, § 35A (b)8, Fam. Law § 5-901(j)).  The last is particularly pertinent, and we quote it from the Family Law Article:

   (1) "Sexual abuse" means any act that involves sexual molestation or exploitation of a child by a parent or other [*527] person who has permanent or temporary care or custody or responsibility for supervision of a child.

   (2) "Sexual abuse" includes:
(1) incest, rape, or sexual[***48] offense in any degree;

   (ii) sodomy; and

   (iii) unnatural or perverted sexual practice.

   Section 9-102(a)(1) explains in plain language that the closed-circuit television procedure may be available whenever a person is charged with an offense that includes acts within the definitions of "abuse of a child" as contained in the two sections referred to.  There is nothing in the language of § 9-102(a) that limits its application to a charge of violation of art. 27, § 35A.  Had that been the legislative intent, it would have been expressed quite differently and there would have been no need to mention Family Law Article § 5-901.

   The language of a statute should be read in the context of the goal the legislature was seeking to achieve.  Kaczorowski v. City of Baltimore, 309 Md. 505, 514, 525 A.2d 628, 633 (1987). In Part I of this opinion, we have discussed the legislative goal of § 9-102 -- to protect child victims of sex abuse from trauma caused by requiring them to testify in open court.  That purpose is inconsistent with the grudging reading of the statute proposed by Wildermuth. It is consistent with our reading of the provision, for there is nothing in the legislative[***49] history to suggest that the legislature [**291] would have wished to protect children who were victims of art. 27 § 35A offenses, but not to protect those who were the victims of other sorts of child abuse. See the discussion at pp. 516-517, supra.  Section 35A, like Family Law Article § 5-901, includes "sexual offense in any degree" in its definition of "sexual abuse."£ A third degree sexual offense is a "sexual offense in any degree" and thus is defined by both the reference sections.  Id.£ Wildermuth's statutory construction argument is without merit.

   This completes our review of Wildermuth's case.  We now proceed to McKoy's remaining contentions.

   [*528] III. McKoy's Remaining Issues

   A. Right to be Present

   In addition to his right of confrontation argument, McKoy asserts that use of the § 9-102 procedure denied him the right to be present at all critical stages of his trial.  In Maryland, "a criminal defendant's right to be present at every stage of his trial is a common law right, is to some extent protected by the Fourteenth Amendment to the United States Constitution, and is guaranteed by Maryland Rule 724. . . ." n14£ Williams v. State[***50] , 292 Md. 201, 211, 438 A.2d 1301, 1306 (1981). To some degree the right of confrontation and the right to be present may overlap, but the latter extends beyond the former in certain respects.  For example, examination of jurors on voir dire does not involve a confrontation between accused and accusers. Nevertheless, it is a critical stage of the trial, and absent waiver, the defendant is entitled to be present at it.  Williams, supra, 292 Md. at 211, 438 A.2d at 1306; and Brown v. State, 272 Md. 450, 456, 325 A.2d 557, 560 (1974). See also United States v. Gagnon, 470 U.S. 522, 527, 105 S.Ct. 1482, 1485, 84 L.Ed.2d 486, 491 (1985).

n14 Now Rule 4-231.

   In McKoy's case there is no question of waiver of the right to be present, nor is there any doubt that the child witness's testimony was a critical stage of his trial.  The only issue is whether use of closed-circuit television, as described previously, deprived McKoy of the right.  We hold that it did not.

   With respect to the fourteenth amendment, [***51] the right to be present that we now consider applies only when the defendant's presence has a reasonably substantial relationship to the fullness of the opportunity to defend; that is, the defendant's presence must in some way contribute to the fairness of the hearing.  Kentucky v. Stincer, 482 U.S.   ,    , 107 S.Ct. 2658, 2667, 96 L.Ed.2d 631, 647 (1987). Gagnon, 470 U.S. at 526, 105 S.Ct. at 1484, 84 L.Ed.2d at [*529] 490. As Justice Cardoza once explained: "So far as the Fourteenth Amendment is concerned, the presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only."£ Snyder v. Massachusetts, 291 U.S. 97, 107-108, 54 S.Ct. 330, 333, 78 L.Ed. 674, 679 (1934). See also Hughes v. State, 288 Md. 216, 224, 421 A.2d 69, 74 (1980).

   McKoy notes cases, such as Bunch v. State, 281 Md. 680, 381 A.2d 1142 (1978), in which the accused's right to be present was held to have been denied even when he was in the courtroom where certain proceedings took place.  From this premise he argues that his right to be present was denied because the witness testified in a separate[***52] room, in which he was not permitted.  But Bunch and similar cases involved bench conferences, from which defendants were excluded.  They could not hear what was taking place at the bench conferences and had no effective way of participating in them.  That is not the situation here.  McKoy could see the witness as she testified, could hear the questions asked of her and her responses, and could communicate with his lawyer in order to convey information or suggest questions to ask.  The statutory procedure did not thwart a fair and just hearing in terms of due process.  Thus, there was no violation of McKoy's due process right to be present.

   As to the Maryland common law right to be present, the legislature can change the common law.  See Jones v. State, 303 Md. 323, 337 n. 10, [**292] 493 A.2d 1062, 1069 n. 10 (1985); Pope v. State, 284 Md. 309, 341, 396 A.2d 1054, 1073 (1979). If § 9-102 narrows the common law right to be present, this was an alteration the General Assembly was entitled to make.

   B. Presumption of Innocence and Due Process

   McKoy next claims that § 9-102 deprives him of his presumption of innocence and hence of due process.  The thrust of the[***53] argument, which is unsupported by citation of [*530] authority, is that the use of an extraordinary procedure, such as testimony by closed-circuit television, suggests to the jury that the defendant is guilty.  As McKoy puts it, "[i]t is the affirmative taking of precautions for apparent protective reasons that suggests a previous determination of the defendant's culpability."£ This prejudice was exacerbated, according to McKoy, because the reasons for invoking § 9-102 were made known to the jury.

   As to the second part of this submission, it is factually incorrect.  At argument before us, McKoy's appellate counsel (who was not trial counsel) so conceded.  Thus, there is no indication that the jury heard any discussion about application of the statute, or any mention of the fact that the child witness was allegedly intimidated by the defendant's presence.

   Nor do we think that the use of the closed-circuit television necessarily suggests anything about a defendant's culpability.  The jury was instructed not to give the televised testimony any greater or lesser weight than if it had been given in the courtroom. It might well have assumed that televising a child's testimony[***54] was simply a procedure used to reduce the trauma any child might suffer through public testimony.  We are not persuaded that this procedure tended to brand McKoy as guilty.  The Supreme Court of Iowa reached the same conclusion (with respect to use of an analogous screening procedure) in State v. Coy, 397 N.W.2d at 735. Accordingly, we reject this contention.

   C. An Evidentiary Issue

   During trial the prosecution questioned Daphne Bolden, the woman with whom McKoy was living and the mother of the alleged child victim. Ms. Bolden was asked

   Q. So, Daphne, do you remember telling [your sister] Melanie about this case? If [the child] . . . kept her mouth shut this long why couldn't she keep it shut.

    A. No, I never said that. . . .
 
Defense counsel objected, moving to strike, and for a mistrial.  After lengthy argument the motions were denied.  [*531] The question was asked again and Ms. Bolden replied "No, I don't remember saying that to her."

   McKoy says Ms. Bolden's "comment" somehow showed her belief that she accepted the child's story and that she believed he was guilty.  But, he continues, her beliefs were irrelevant, and thus inadmissible.  The State[***55] says the question was an attempt to establish Ms. Bolden's bias because it tended to show that she didn't want McKoy to be charged.

   Which one is legally correct we need not say.  The short of it is that Ms. Bolden effectively denied making the statement.  The State produced no evidence that she had made it.  After the exchanges we have recounted, the matter was dropped.  We cannot see how this trivial exchange could in any way have prejudiced McKoy.  If there was error, it was harmless beyond a reasonable doubt.  Dorsey v. State, 276 Md. 638, 648-661, 350 A.2d 665, 671-679 (1976).

   JUDGMENT IN NO. 2 (ADV.), SEPT. TERM, 1987 (WILDERMUTH) REVERSED.  CASE REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.  COSTS TO BE PAID BY ANNE ARUNDEL COUNTY.

   JUDGMENT IN NO. 7 (ADV.), SEPT.  TERM, 1987 (MCKOY) AFFIRMED.  COSTS TO BE PAID BY APPELLANT. 

Winfield M. KELLY, Jr. and Greater Baltimore Committee, Inc.et al. v. MARYLANDERS FOR SPORTS SANITY, INC. et al. 
No. 75, September Term, 1987
 
Court of Appeals of Maryland
 
310 Md. 437; 530 A.2d 245; 1987 Md. LEXIS 276

 September  8, 1987

   PRIOR HISTORY: [***1]  
Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals, Raymond G. Thieme, Jr., Judge.

DISPOSITION: JUDGMENT GRANTING WRIT OF MANDAMUS REVERSED; CASE REMANDED TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR ENTRY OF SUMMARY JUDGMENT FOR THE APPELLANTS, SECRETARY OF STATE AND GREATER BALTIMORE COMMITTEE; COSTS TO BE PAID BY APPELLEES; MANDATE TO ISSUE FORTHWITH.

CORE TERMS:  appropriation, referendum, stadium, budget, site, sports, state government, Referendum Amendment, package, dollar, financing, lease, acquisition, subject to referendum, Budget Amendment, expenditure, referable, lottery, primary function, appropriated, football, state treasury, debt service, fiscal year, public funds, disbursement, franchise, baseball, public purpose, excepted

COUNSEL: J. Joseph Curran, Jr., Attorney General, Judson P. Garrett, Jr., Deputy Attorney General, Baltimore and Robert A. Zarnoch, Assistant Attorney General (Linda H. Lamone, Assistant Attorney General and Catherine E. Bocskor, Special Assistant Attorney General, Annapolis, on the brief), for appellant Secretary of State; George A. Nilson (Sheila Mosmiller Vidmar, John A. Singer and Piper & Marbury, on the brief), Baltimore, Maryland, for Greater Baltimore Committee, Inc. et al.

   Ronald L. Early (Harry W. Lerch, and Lerch, Early, Roseman & Frankel, Chartered, on the brief), Bethesda, for appellee.

JUDGES: Murphy, C.J., and Eldridge, Cole, Rodowsky, McAuliffe, Adkins and Blackwell, JJ.  Adkins, Judge, dissenting.

OPINIONBY: MURPHY

OPINION: [*439] [**245] Article XVI of the Constitution of Maryland, [***2]entitled "The Referendum," in § 1(a), reserves to the people the power "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. . . ."£ Section 2 of Art. XVI limits [**246] the right of referendum, in pertinent part, as follows:
 
"No law making any appropriation for maintaining the State Government, or for maintaining or aiding any public institution, not exceeding the next previous appropriation for the same purpose, shall be subject to rejection or repeal under this Section."

   The primary issue in this case is whether enactments of the General Assembly in 1987 involving the Maryland Stadium Authority constitute laws "making any appropriation for maintaining the State Government."

   I.

   The Maryland Stadium Authority was created by ch. 283 of the Acts of 1986, codified as Maryland Code (1986 Repl.Vol.), §§ 13-701 to -722 of the Financial Institutions Article.  By this legislation, the Authority was designated as a public corporation and instrumentality of the State.  For budgetary purposes, it was included as a unit of the Department of Economic and Community Development. § 13-702. [***3] The five members of the Authority, appointed by the Governor with the advice and consent of the Senate, § 13-703, were empowered to determine the location of, and construct and maintain "facilities to the extent necessary to accomplish [its] purposes."£ § 13-708(6).  Under § 13-701, a "facility" includes, in addition to the site, "stadiums for the primary purpose of holding professional football games, major league professional baseball games, or both, in the Baltimore metropolitan area."

   The Authority was vested with broad power to regulate the use and operation of its facilities and to charge fees [*440] therefor.  § 13-708(9) and (10). Subject to the approval of the Board of Public Works, the Authority was authorized to borrow money from any source for any corporate purpose and to mortgage or otherwise encumber its property. § 13-708(11).  Subject to the same approval, the Authority was permitted to issue bonds in connection with its acquisition and construction of facilities, the debt service on the bonds to be payable solely from the Authority's revenues. § 13-708(12); § 13-712.  The Authority was empowered, by gift or purchase, to acquire any property needed [***4]"to construct or operate any facility."£ § 13-711(a).  Prior to selecting a facility site, it was required to hold a hearing for the purpose of obtaining public comment. § 13-709.  It was also required, before acquiring a facility site, or before entering into a construction contract involving a facility, to submit a detailed written report to the General Assembly and Board of Public Works justifying its proposed action, including the method of funding and the economic necessity for the facility. § 13-710.  Notification to the Legislative Policy Committee thirty days prior to acquiring a facility site was also required by this section.  In addition, the Authority was directed to obtain prior approval both of the Board of Public Works and the General Assembly "for the acquisition of the site for the stadium" and to obtain the approval of the Board of Public Works before contracting for the acquisition of the facility site. § 13-710.

   Section 13-715 created a Maryland Stadium Authority Financing Fund "as a nonlapsing revolving fund" to be used by the Authority "for carrying out the provisions of this subtitle."£ The Authority was required by this section to place receipts in the[***5] Financing Fund from the sale of its bonds and from other revenues generated from other sources.

   Consistent with its statutory purpose, the Authority engaged consultants to consider various sites for its contemplated sports facilities.  After studying the consultants' report, the Authority recommended an 85-acre tract in Baltimore City, known as Camden Yards, as the most [*441] appropriate site. It concluded that the Camden Yards site could be acquired for 72.3 million dollars; that a baseball stadium could be erected on the site for 61.8 million dollars, and a football stadium for 67 million dollars -- a total cost of 201.1 million dollars in January 1987 dollars.

   On December 5, 1986, the Authority gave the requisite statutory notice of its intention to recommend the Camden Yards site [**247] for the location and construction of the sports facilities.  Three bills were thereafter introduced in the 1987 session of the General Assembly as administration measures.  The first, S.B. 228, which upon its enactment became ch. 122 of the Acts of 1987, was entitled "Maryland Stadium Authority -- Approval of Facility Site at Camden Yards."£ This bill amended § 13-709 of the Financial[***6] Institutions Article by authorizing the Authority to construct or enter into a contract for a facility on the Camden Yards site.

   The second bill, S.B. 230, which upon its enactment became ch. 123 of the Acts of 1987, was entitled "Maryland Stadium Authority -- Powers and Duties."£ This bill also amended a number of sections relating to the Maryland Stadium Authority in the Financial Institutions Article.  Specifically, the Authority was designated as an independent unit in the Executive Branch of State Government. § 13-702(c).  It was authorized to acquire property in the Camden Yards site by ordinary or quick-take condemnation.  The bill also amended § 13-715(c) by adding a new subparagraph (5) which specified that, in addition to other receipts of the Authority required to be deposited in its Financing Fund, "additional revenue, gift, donation, or other source [of funds] authorized by law" must also be so deposited in connection with the financing of the site acquisition and construction of the sports facilities.  The Authority was required by § 13-719(5) to submit "annually a budget reflecting the operating and capital program of the Authority to the Department of Budget and[***7] Fiscal Planning for inclusion for informational purposes in the State Budget Book."£ [*442] The effectiveness of the bill was made contingent upon the enactment of ch. 122.

   The third bill, S.B. 847, which upon its enactment became ch. 124 of the Acts of 1987, was entitled "Maryland Stadium Authority -- Financing."£ It amended a number of sections in the Financial Institutions Article, in the State Finance and Procurement Article, and in the State Government Article of the Code.  By its preamble, this bill recited the intention of the General Assembly that, to the maximum extent economically justifiable, the Authority "finance the construction of the facility with private, rather than public, investment"; and that the Authority solicit and evaluate proposals from private investors for financing such structures, thereby "to minimize the use of State lottery and other revenues and the risk to the State's revenue base and credit ratings."

   The bill provided in amended § 13-712(a)(1)(II) of the Financial Institutions Article that, absent additional approvals, the Authority's power to issue bonds for the purpose of financing site acquisition and construction of the sports facility[***8] was limited to: (1) 85 million dollars for site acquisition at Camden Yards; (2) 70 million dollars for construction of a baseball stadium; (3) 80 million dollars for construction of a football stadium, and (4) 195 million dollars for construction of a multi-use stadium. New § 13-712.1(1) of the Financial Institutions Article requires that prior to sale of its bonds to finance any segment of the facility, the Authority must make a certification and report to the Legislative Policy Committee and Board of Public Works that it "endeavored to maximize private investment in the facility proposed to be financed and to maximize the State's ability to assure that the professional baseball and football franchises will remain permanently in Maryland."£ Section 13-712.1(2) requires the Authority to provide to the fiscal committees of the General Assembly, prior to seeking approval for each bond issue, "a comprehensive financing plan for the relevant segment of the facility and the effect of this financing plan on financing options for other segments [*443] of the facility, including anticipated revenues from private investment where applicable."£ This section, in subparagraph (3), also[***9] requires the approval of the Board of Public Works of the proposed bond issue and financing plan.  Subparagraph (4) of this section conditions the issuance of the bonds upon securing: (1) in connection with site acquisition and construction of a baseball stadium, a long-term lease for a major league professional team and (2) in connection with site acquisition and construction [**248] of a football stadium, a franchise for a National Football League team and a long-term lease.

   The bill provided in amended § 13-711(b)(2) and (3) that subject to the prior approval of the Board of Public Works, "the State may lease or sublease any facility from or to the Authority, whether or not constructed or useable"; and that lease payments to the Authority appropriated by the Legislature "shall be transferred to the Maryland Stadium Authority Financing Fund."£ Section 13-714.1 of the Financial Institutions Article requires Baltimore City to pay one million dollars annually into the Authority's Financing Fund "for the purposes of debt service and other forms of obligation by the Authority."

   The bill also added new § 7-312 to the State Finance and Procurement Article for the purpose of creating[***10] a "Maryland Stadium Facilities Fund" -- a "special, nonlapsing fund," to be "separately" held by the State Treasurer.  It consisted of "moneys that may be appropriated, transferred, credited, or paid to it from any source."£ The section directs that the unspent balance of this Fund not revert to the General Fund of the State at the end of the fiscal year. Under § 7-312(E), receipts in the Facilities Fund are authorized to be used with certain approvals (1) to pay rent to the Maryland Stadium Authority and (2) to make grants or loans up to one million dollars to the Authority in any fiscal year and (3) to finance capital construction in lieu of issuing bonds.

   Also included in the bill was new § 7-312(F) of the State Finance and Procurement Article; it requires, at the end of [*444] the fiscal year, a transfer to the Dedicated Purpose Account of the State Reserve Fund of balances in the Facilities Fund in excess of 24 million dollars, plus the Debt Service Reserve Fund held for payment of debt service on the Authority's bonds. Revenues so transferred to the State Reserve Fund "are dedicated for use by the Maryland Stadium Authority and may be transferred from the State Reserve [***11]Fund by an appropriation in the Budget Bill or, with the approval of the Legislative Policy Committee by budget amendment." n1

n1 The State Reserve Fund, § 7-309 of the State Finance Article, is comprised of the Dedicated Purpose Account and the Revenue Stabilization Account.  The Dedicated Purpose Account is a continuing, nonlapsing fund for the purpose of retaining appropriations for major, multi-year expenditures where the magnitude and timing of cash needs are uncertain; and to meet expenditure requirements which may be impacted by federal law or fiscal policies, or other similar contigency situations. § 7-310 of the State Finance Article.

   Section 7-310(d) provides that appropriations to the Dedicated Purpose Account designated for a specific purpose, after notice to the Legislative Policy Committee, may be transferred by budget amendment to the expenditure account of the appropriate unit of State government.

   Finally, the bill added new provisions to the State Government Article requiring (1) that the[***12] State Lottery Agency conduct each fiscal year at least two, but not more than four, sports lotteries for the Authority's benefit, § 9-120.1, and (2) that the Comptroller pay into the Stadium Facilities Fund the net proceeds of these sports lotteries. § 9-120(b)(1)(I).

   As shown by the Senate and House Journals, the three Maryland Stadium Authority bills were favorably reported, with amendments, by the fiscal committees of the General Assembly.  An extensive report entitled "The Stadium Issue," prepared by the Legislature's Department of Fiscal Services, was available during consideration of the bills by the fiscal committees and ultimately by the entire membership of the General Assembly.  Much of its content was included in the "Floor Report" of the Senate Budget and Taxation Committee relating to the financing of the sports [*445] facilities proposed by S.B. 847 (ch. 124).  This report gave an overview of the bill's salient provisions, highlighting the fact that the bill permitted the Authority to issue 206 million dollars in mainly tax-exempt, 30-year lease backed revenue bonds. The report noted that the bill created three new revenue sources -- the sports lotteries, estimated[***13] to produce 16.4 million dollars annually; n2 the one million dollar grant [**249] from Baltimore City; and operating revenues of the Authority estimated at 5.3 million dollars yearly -- a total amount greater than the annual estimated debt service on the bonds of approximately 17 million dollars. The committee report indicated that these new revenue sources would permit the Legislature in the Budget Bill to appropriate annually, in the form of lease payments, the funds necessary to cover the debt service on the bonds.  As otherwise stated in the report, site acquisition and construction costs for the sports facilities would be funded by 30-year Authority revenue bonds, with debt service financed by annual lease payments to the Authority from funds appropriated each year by the Legislature, and with the sports lotteries constituting the main source of revenues for the lease payment appropriations. See "The Stadium Issue," at 15. n3

n2 To yield 16.4 million dollars in net proceeds, the sports lotteries must gross 40 million dollars a year in revenues.

n3 The purported advantages of this so-called lease backed financing were outlined at 14 of "The Stadium Issue," as follows:
 
"1. The financing enjoys the credit strength of the State without a direct State pledge of general obligation.  Generally, the rating on such bonds will be one full grade below the State's general obligation and this would be equivalent to a AA or AA- rating.
 
2. Since annual apprpriations for lease payments cover the debt service exactly, revenue sources are not required to provide the coverage ratio sought by a rating agency for strictly a revenue bond issue.
 
3. Since such financing is not considered legal debt, there is no 15 year maximum maturity time period."

[***14]

   The economic benefit to the State of the new facilities was outlined in the committee report as follows: for the new baseball stadium, 132 million dollars annually in 1990 [*446] dollars; and 59.8 million dollars for the football stadium if an NFL franchise was obtained.  The economic impact upon the City was estimated at 9.6 million dollars in new local taxes during the construction phases and 1.6 million annually generated by the sports facilities.

   The three bills were enacted by the General Assembly and signed into law by the Governor on April 30, 1987 as chs. 122, 123, and 124 of the Acts of 1987; they took effect on June 1, 1987.

   Because of the anticipated enactment of the bills, a General Fund appropriation included in the proposed annual Budget Bill for the Authority in the total amount of $521,632 was stricken by the Legislature.  See the Budget Bill, ch. 121 of the Acts of 1987, Item 37.01.24.14, at 153 and 225.  The Report of the Chairmen of the House Appropriations Committee and Senate Budget and Taxation Committee, 1987 session, at 204, explains the reason for this action: "Delete general funds for agency in anticipation of special funds becoming available[***15] as part of a stadium financing plan.  Gap financing should be provided through the General Emergency Fund if necessary." n4

n4 The General Emergency Fund is annually appropriated in the Budget Bill to the Board of Public Works.  See ch. 121 of the Acts of 1987, Item 23.05.01.02, appropriating the amount of 2 million dollars:
 
"(1) for supplementing appropriations made in the budget for Fiscal Year 1988 when the regular appropriations are insufficient for the operating expenses of the government beyond those that are contemplated at the time of the appropriation of the budget for this fiscal year or (2) for any other contingencies that might arise within the State or other governmental agencies during the fiscal year or any other purposes provided by law, when adequate provision for such contingencies or purposes has not been made in this budget."

   II.

   Opponents of the Stadium Authority enactments undertook to petition chs. 122 and 124 to referendum under Art. XVI of the Maryland Constitution.  Acting [***16]through Marylanders for Sports Sanity (MASS), referendum petitions were presented to the Secretary of State on May 27 and 28, [*447] 1987.  The Secretary refused to accept them in view of an opinion of the Attorney General of Maryland that neither Act was referable. See 72 Op. Att'y Gen. (1987).

   MASS thereafter promptly filed suit in the Circuit Court for Anne Arundel County, seeking a writ of mandamus to compel the Secretary to accept the petitions and forward them to the State Administrative Board of Election Laws, as required by law.  After the court granted a motion to [**250] intervene by the Greater Baltimore Committee (GBC), both the Secretary and GBC filed motions for summary judgment.  They took the position that ch. 124 was a law making an "appropriation for maintaining the State Government" within the contemplation of the Referendum Amendment of the Maryland Constitution and thus was not referable. This was so, they contended, because ch. 124 mandates the raising of revenues to provide the financing for the continued operation of the Stadium Authority and for its site acquisition and construction of sports facilities at Camden Yards.  Thus, they argued, ch. [***17] 124 was itself an "appropriation" within the meaning of the Referendum Amendment because it earmarked and dedicated monies for a particular purpose, even though ch. 124 did not directly authorize the disbursement of any budgeted funds.  Moreover, they maintained that ch. 124 was enacted for the purpose of maintaining State government because the Authority could not otherwise perform its statutory duties of promoting the recreation of the public, a traditional and long-standing governmental function.  And they also urged that the stadium "package" of bills, chs. 122, 123, and 124, must be read as a single legislative enactment.  Because ch. 122 -- the so-called Site Act for the new proposed facility in Camden Yards -- was legally inseparable from the financing mechanisms contained in ch. 124, the Secretary and GBC contended that the two bills must be considered as one for purposes of interpretation, construction, and legal effectiveness.  They contended that because the two Acts were interdependent and treated a single subject, and because ch. 124 was a law making an "appropriation for maintaining the [*448] State Government," neither ch. 122 nor ch. 124 was capable of referendum. [***18]

   The contrary position taken by MASS in opposition to the summary judgment motions was adopted, for the most part, by the circuit court.  In an opinion by Judge Raymond G. Thieme, Jr., it was first noted that there was no appropriation for the Authority contained in the Budget Bill.  He observed that while ch. 124 created a comprehensive financing scheme to raise funds to acquire and construct sports facilities at the Camden Yards site, it did not itself disburse any funds.  To come within the exception to the Referendum Amendment, the court said that the law must authorize a disbursement in a specific amount for the purpose of maintaining State government.  After reviewing the provisions of Art. III, § 52 of the Maryland Constitution (the Budget Amendment), Judge Thieme concluded that the General Assembly could appropriate money out of the State Treasury only by the Budget Bill or by a Supplementary Appropriation Bill.  Because ch. 124 concededly was not a supplementary appropriation bill, as it made no provision for a tax to raise the revenue, the court found that this enactment did not constitute an "appropriation" within the meaning of the Referendum Amendment. Judge Thieme said, [***19] after reviewing our cases, that "an appropriation includes both a revenue producing measure and a revenue disbursing measure . . . [and that] the elements may be embodied in one act or in separate acts, one of which being a Budget Bill, and construed as one Act."£ The authority to issue and sell revenue bonds was not, he said, an "appropriation" and, in any event, was discretionary in ch. 124, not mandatory, and was subject to a number of preconditions.  Moreover, Judge Thieme held that there was no provision in ch. 124 mandating that a sum certain be generated by the revenue bonds and disbursed to the Authority for the acquisition and construction of the facilities.  As a consequence, he said that "[t]here is no withdrawal from the State Treasury of a certain sum of money for the purpose [*449] of constructing the stadia through the revenue bond provisions."

   Further in the opinion, Judge Thieme noted that the proposed lease payments for the Authority's facilities, the amount of which was not specified in ch. 124, were to be made by the State only on a permissive and contingent basis from future budget bills.  He said that because the proceeds of the sports lottery, the Baltimore[***20] City contribution, and stadium revenues and grants had not been collected, any appropriation of [**251] State funds in ch. 124 was "illusory."£ He characterized ch. 124 as, at most, "a revenue raising measure of indefinite sums," and not an appropriation act.  Nor is it, he held, "in pari materia with the Budget Bill (Fiscal Year 1988), as the Budget Bill contains no appropriation of funds for the Authority or for the acquisition and construction of sports stadia."

   Judge Thieme furthermore concluded that Art. XVI "should be liberally construed in favor of the people" and that "limitations on the power of the referendum should be narrowly construed to ensure that the power is not subverted."£ In any event, the court repeated, ch. 124 was not a law for the purpose of maintaining State government within the Referendum Amendment. While finding that construction of stadiums for recreational purposes could constitute a primary function of State government, Judge Thieme further found that because ch. 124, by its preamble, required that private investment be maximized, and because lease backed financing was used rather than general obligation bonds pledging the full faith and credit[***21] of the State to payment of the Authority's bonds, the General Assembly intended that the stadium construction be undertaken primarily by private investment.  And, finally, he held that ch. 122 did not constitute an appropriation for maintaining the State government, since it neither raised revenue nor appropriated funds, but simply authorized the Authority to acquire the Camden Yards site for the sports facilities.

   Having determined that chs. 122 and 124 could be petitioned to referendum, the court held that MASS had a clear [*450] legal right to have the petitions accepted by the Secretary of State and forwarded to the State Administrative Board of Election Laws.  The court, therefore, granted MASS' request for a writ of mandamus and denied the Secretary's and GBC's motions for summary judgment.  This appeal followed. n5

 n5 We granted certiori prior to consideration of the appeal by the intermediate appellate court to consider, as expeditiously as possible, the significant issue of public importance involved in the case.

[***22]

   III.

   The precise issues in this case are (1) whether ch. 124 is a law making an "appropriation" within the meaning of the Referendum Amendment; (2) if it is such a law, whether the "appropriation" made by ch. 124 is for "maintaining the State Government" within the contemplation of Art. XVI and thus exempt from the referendum, and (3) whether ch. 122, which concededly makes no appropriation, is nevertheless part of an interdependent and legally inseparable package of legislation with chs. 123 and 124 and thus is nonreferable under Article XVI.

   (A)

   The Referendum Amendment to the Maryland Constitution was proposed by ch. 673 of the Acts of 1914 and was ratified on November 2, 1915.  It was "the brainchild of Populist and Progressive Movements which dominated national politics in the late nineteenth and early twentieth centuries" and was enacted in response "to the public outcry over corruption in state government and alleged abuses of legislative power."£ Ritchmount Partnership v. Board, 283 Md. 48, 60, n. 9 and 10, 388 A.2d 523 (1978). n6£ Shortly after the Amendment's enactment, we said that its [*451] meaning and limitations must be determined "in the light of its origin, [***23] the purpose it was intended to serve, as well as the evils it was intended or supposed to remedy."£ Beall v. State, 131 Md. 669, 676, 103 A.2d 99 (1917). In this connection, we there noted that since the establishment of Maryland's first Constitution in 1776, our people "had lived under a well recognized form of representative self-government . . . [which was] for [**252] many years looked upon as one of the great principles of popular government, and as necessary and indispensable for the preservation of civil order and popular liberty."£ Id. at 677, 103 A.2d 99. We observed, however, that after the close of the Civil War, and in particular between the years 1880 and 1900, "great abuses began to creep into legislation and into the administration of the National and State governments."£ Id.£ These abuses were said "to have grown out of the control by corrupt methods of legislation and administration by great corporations and a group of individuals in each State who had taken into their hands the machinery of each of the great political parties."£ Id.£ As a result, "it was charged that the government, in all its departments, was prostituted to corrupt and selfish[***24] purposes."£ Id.£ The Referendum Amendment was thus "designed as a modification of, or as a supplement to the principle of representation . . . [to] prevent the reoccurrence of many of [these] abuses."£ Id. at 678, 103 A.2d 99. n7£ Therefore, upon the timely filing of a valid referendum [*452] petition, the referred statute (other than an emergency measure) "shall not become a law or take effect until thirty days after its approval" by majority vote at the next ensuing statewide general election.

 n6 In its initial form, ch. 673 proposed both the initiative and the referendum. The initiative provisions encountered stiff opposition in the General Assembly and were deleted from the Act.  See Baltimore Sun, March 20, 1914, at 2, col. 5; April 5, 1914, at 4, col. 7; See C. Everstine, The General Assembly of Maryland, 1850-1920, 566 (1984).

n7 The inclusion of referendum and initiative provisions in state constitutions began in South Dakota in 1898.  These provisions were viewed as a means to curb legislative power, increase the direct involvement of citizens in government, and check the power exerted by special interest groups.  See generally Lapalombara & Hagan, Direct Legislation: An Appraisal and A Suggestion , 45 Am.Pol.Sci.Rev. 400 (1951); Lowe, Public Safety Legislation and the Referendum Power: A Reexamination, 37 Hastings L.J. 591, 591-93, 600-01 (1986); Comment, The Current Use of the Initiative and Referendum in Ohio and Other States, 53 U. Cinn.L.Rev. 541, 544-45 (1984); E. Oberholtzer, The Referendum in America 426 (3d ed. 1971).  Twenty-six states now have some provision for direct legislation.  Twenty-one allow both initiative and referendum; three referendum only, and two initiative only.  Eighteen of these states limit the subject matter of such direct legislation.  D. Magleby, Direct Legislation 36 (1984).

[***25]

   At the time of the Referendum proposal in 1914 and its adoption in 1915, bills for the expenditure of public monies for the State's governmental purposes were initiated solely by the Legislature.  Then, as now, Art. III, § 32 of the Maryland Constitution prohibited the withdrawal of any money "from the Treasury of the State . . . except in accordance with an appropriation by Law." n8£ And § 34 of Article III of the Constitution then provided (as now) that no "debt" could be contracted by the General Assembly for purposes of financing governmental projects "unless such debt shall be authorized by a law providing for the collection of an annual tax or taxes sufficient to pay the interest on such debt as it falls due, and also to discharge the principal thereof within fifteen years from the time of contracting the same. . . ."

n8 Section 32 also required every appropriation measure to
 
"distinctly specify the sum appropriated, and the object, to which it shall be applied; provided, that nothing herein contained, shall prevent the General Assembly from placing a contingent fund at the disposal of the Executive, who shall report to the General Assembly, at each Session, the amount expended, and the purposes to which it was applied."

[***26]

    The Budget Amendment to the Maryland Constitution, Art. III, § 52, which introduced a comprehensive executive budget system in this State, and required that "[e]very appropriation bill shall be either a Budget Bill, or a Supplementary Appropriation Bill," was not in effect at the time of the Referendum's adoption.  Consequently, we look to the history of legislatively authorized expenditures, prior to the adoption of the Budget Amendment, to ascertain the intended reach of the limitation in Art. XVI excepting from its provisions a law making an "appropriation for maintaining the State Government."

   [*453] Maryland had no orderly system of planned public expenditures in the years before the Budget Amendment. See C. Everstine, The General Assembly of Maryland, 1850-1920, at 571 (1984).  During that period, appropriations for various purposes were made piecemeal by a series of bills enacted by the General Assembly, each project receiving independent consideration without relation to other claims upon the public purse.  McKeldin v. Steedman, [**253] 203 Md. 89, 96, 98 A.2d 561 (1953). As a result of these uncoordinated multiple appropriations, many for State-aided[***27] charitable institutions, deficits in the State Treasury were not unusual; the problem was exacerbated by the Legislature's practice of making "continuing appropriations," i.e., those for specific purposes which would go on indefinitely without further legislation.  See Md. Act. for Foster Child. v. State, 279 Md. 133, 367 A.2d 491 (1977); Panitz v. Comptroller, 247 Md. 501, 232 A.2d 891 (1967); Baltimore v. O'Conor, 147 Md. 639, 128 A. 759 (1925). As the power to expend public monies was vested solely in the Legislature, it was free to ignore the Governor's recommendations in making public expenditures. Numerous spending bills were enacted by the Legislature, with individual members representing districts, seeking funds for particular purposes on behalf of their constituencies.  No effective provision then existed in the State's system of financing the government for the presentation to the Legislature of a complete picture of the financial condition and needs of the government.  And, it was said, the stream of appropriation bills was withheld until the last few days of the legislative session when deliberate scrutiny of their provisions was not possible; indeed, they[***28] were frequently decided upon in the privacy of committee rooms, and were the product of "log-rolling" between members of the legislature, senatorial or delegate courtesy as to the passage of such bills being prevalent among the legislators.  These accounts of the [*454] dismal fiscal practices of the General Assembly prior to the Budget Amendment are well documented. n9

n9 See, e.g., H. Miles, The Maryland Executive Budget System, at 8-10 (1942); E. Harrington, The First State Executive Budget, 8 Proceedings of the Academy of Political Science, at 18-19, 25 (1920); Municipal Research (Vol. 73), at 30 (1916); F. Goodnow, Chairman of the Goodnow Commission, Address to the Twenty-second Annual Meeting of the Maryland State Bar Association (1917); Address to the General Assembly of Maryland (Governor Crothers), Senate Journal of Proceedings, at 40-41 (Jan. 3, 1912); Goodnow Commission Report, Senate Journal of Proceedings, at 129-34 (Jan. 28, 1916); H. Flack, The Maryland Budget Amendment (1917).

[***29]
 
   The Referendum Amendment, with its exemption of laws making appropriations for maintaining the State government, thus bears examination in light of this historical background.  Whether the General Assembly, in proposing the exceptions to the people's right to Referendum, was undertaking to insulate its interest in spending public monies, or had some higher purpose in mind cannot be gleaned from the literature on the subject.  In substance, however, it seems clear that the Referendum Amendment excluded from its coverage all those bills, with or without revenue-raising provisions, which authorized the expenditure of public money to maintain the State government, and other such bills which appropriated sums "for maintaining or aiding any public institution" not exceeding "the next previous appropriation for the same purpose." n10

n10 Among such bills were those creating a constitutional debt under § 34 of Art. III of the Constitution through the issuance of State bonds to raise revenues for various capital projects of the State or State-aided public institutions.  See, e.g., ch. 200, Acts of 1902; ch. 228, Acts of 1904; ch. 749, Acts of 1912; ch. 791, Acts of 1914.

[***30]

   The Budget Amendment, ratified in 1916, corrected many of the fiscal deficiencies which existed at that time by providing for a comprehensive executive budget system for the State.  This system required that the Governor present a complete and balanced plan of proposed appropriations and estimated revenues for the fiscal year to the Legislature in the form of a Budget Bill. The provisions of the Budget Amendment and its history have been reviewed in great detail in a number of our cases and require no [*455] repetition here. See, e.g., Md. Act. for Foster Child. v. State, supra; McKeldin v. Steedman, supra; Dorsey v. Petrott, 178 Md. 230, 13 A.2d 630 (1940); Baltimore v. O'Conor, supra. Especially to be noted, however, is that the Budget Amendment specified in § 52(1) and (2) that the General Assembly "shall not appropriate any money out of the Treasury" except by either "a Budget Bill or a Supplementary Appropriation Bill."£ The latter, as defined in paragraph (8) of § 52, was a legislatively [**254] initiated appropriation measure "embodied in a separate bill limited to some single work, object or purpose therein stated" and required to "provide the revenue[***31] necessary to pay the appropriation thereby made by a tax, direct, or indirect, to be levied and collected as shall be directed in said bill."

   Without question, within the meaning of the Referendum Amendment, an "appropriation for maintaining the State Government" may be included within a Budget Bill or supplementary appropriation bill.  See Bayne v. Secretary of State, 283 Md. 560, 392 A.2d 67 (1978); Winebrenner v. Salmon, 155 Md. 563, 142 A. 723 (1928). Since ch. 124 is neither a Budget Bill nor a supplementary appropriation bill under the Budget Amendment, we consider whether it is nevertheless a bill within that class of money bills or spending measures contemplated by the exceptions to the referendum right under Art. XVI.

   In a 1927 opinion, then Attorney General Robinson considered whether a statute which increased the gas tax and dedicated the proceeds for highway construction and maintenance was a law making an appropriation "for maintaining the State Government" and thus was not referable under Art. XVI. 12 Op. Att'y Gen. 228. In determining for referendum purposes "what constitutes a law making an appropriation," the Attorney General took cognizance of the "radical [***32]change" effected by the Budget Amendment to the Maryland Constitution.  Id. at 233. He noted that under the Budget Amendment, unlike the situation prior to its adoption, all disbursements of State revenues are made by [*456] either a budget bill or by supplementary appropriation bills.  Id. at 234.

   After discussing the intricacies of the Budget Amendment, the Attorney General stated that "[w]ithin the meaning of Art. XVI at the time of its adoption, [the statute sought to be referred] is unquestionably an appropriation measure," as it imposed a tax from which the revenue required for road construction was to be derived.  Id. at 234. But, he said, "the word 'appropriation' is not used in the same sense in the budget amendment and in Article XVI."£ Id. at 235. As to the exception in the Referendum Amendment, the word "appropriation . . . signifies the act of setting apart or assigning to a particular use or person in exclusion of all other, that is to say, the application to a special use or purpose"; whereas in the Budget Amendment the word "appropriation" denotes "disbursement . . . of appropriated monies from the State Treasury."£ Id. at 235. Attorney[***33] General Robinson said:

   "The Budget amendment prescribes the method whereby appropriated funds may be withdrawn from the State Treasury. Article XVI refers to all laws assigning public monies to a particular use or purpose, regardless of whether such law is adequate or legally sufficient to authorize the payment or disbursement of the appropriated monies."£ Id.
 
Thus, whether the statute sought to be referred "is regarded as separate and distinct from the budget bill or is considered in connection therewith, it must be held to be a law making an appropriation, within the meaning of Article XVI."£ Id.

   Finding that the appropriation was one for maintaining the State government, the opinion indicated that the framers of Art. XVI "had in mind that if laws making appropriations for maintaining the State government were subject to referendum, it would be possible, through the exercise of this power by the people, to cause the State serious financial embarrassment in the performance of its various essential functions."£ Id. at 235-36. The opinion concluded that [*457]"the broad language of the exception was intended to include all laws providing revenue for and/or[***34] appropriating monies to any organized department of the State . . . [for] the exercise of State functions."£ Id. at 236.

   Notwithstanding the Attorney General's opinion as to the nonreferability of the statute, the matter was ultimately challenged in Winebrenner v. Salmon, 155 Md. 563, 142 A. 723 (1928). We there said that the statute, although technically not valid as a supplementary appropriation bill because it was enacted prior to the Budget [**255] Bill, nevertheless constituted an "appropriation" under Art. XVI for maintaining the State government, which could not be referred to Referendum. In so holding, we noted that even though the statute might not for that reason be "sufficient in itself to authorize the withdrawal [of money] from the treasury of the State . . . it was at least a direction to the Governor to make the disbursement in the budget to be prepared by him."£ Id. at 567, 142 A. 723. We concluded that the statute and the Budget Bill were in pari materia and must be construed together as though they constituted one act.  Id. at 567, 142 A. 723.

   Dorsey v. Petrott, 178 Md. 230, 13 A.2d 630 (1940) involved the referability of a statute[***35] dealing with the conservation of fisheries in tidewater, Maryland, said by the Court to be an imperative function of government.  The issue was whether the statute constituted a law making an appropriation within the meaning of the Referendum Amendment "when construed in connection with other related provisions of the Constitution."£ 178 Md. at 235, 13 A.2d 630. We there said that "a law making an appropriation," in legislative and constitutional history, "has had a definite significance."£ Id. at 236, 13 A.2d 630. Reviewing the Maryland Constitution of 1776, we observed that only the House of Delegates was empowered "to originate money bills."£ Id.£ As to the meaning of a "money bill," the Court said it "embraces bills providing for the raising of public revenue and for the making of grants or appropriations of public money in the Treasury."£ Id.£ As to subsequent Maryland [*458] Constitutions, which involved "money bills" originating in either chamber of the General Assembly, we referred to McPherson v. Leonard, 29 Md. 377 (1968). In that case, we stated that the constitutional requirement of Art. III, § 32 that no money be drawn from the Treasury except by[***36] an appropriation by law was satisfied by a statute that directed that the warrant of the Comptroller be paid from "any money thereafter in the treasury not otherwise appropriated."£ Id. 178 Md. at 238, 13 A.2d 630. This, we said, was "certainly an appropriation, and a fund is dedicated to its payment."£ Id. at 238-39, 13 A.2d 630.

   Next discussed in the opinion were appropriations "by constitutional mandate" (citing the School Fund under § 3 of Art. VIII of the Maryland Constitution and the payment of debt service on State debts contracted under § 34 of Art. III of the Constitution).  As to these, we found it
 
"evident that the Referendum Amendment did not mean to include within the purview of its operation a statute to raise revenues for these specific purposes by a levy of taxes or by the imposition of other fiscal measures.  The act for these purposes and the moneys so procured are, therefore, an act and a fund for the maintenance of the State Government; and, so, the act is excepted from the Referendum Amendment."£ Id. at 240, 13 A.2d 640.
 
Continuing, the Court said that no basis existed "for the construction that a law imposing or providing for a tax[***37] levy or other means of raising revenue for the maintenance of the state government is a law referable to the electorate . . . [within] the terms of the Referendum Amendment."£ Id.£ The Court next said that "[t]he determinative characteristics of an appropriation for maintaining the State Government at the time of the adoption of the Referendum Amendment in 1915 were not fundamentally affected by the Budget Amendment."£ Id. at 241, 13 A.2d 640.

   Following an extended recitation of the provisions of the Budget Amendment, we recognized that "the budget bill itself does not provide the means for the raising of the revenue requisite for the payment of the appropriations [*459]made . . . [but] is to be implemented by the passage of such money bills or revenue measures as shall produce and supply the moneys necessary for the Treasury to meet the appropriations made by the budget bills."£ Id. at 243, 13 A.2d 640. It follows, we said, "that revenue measures to raise the public funds to pay the appropriations of the Budget Bill are excepted from the operation of the Referendum Amendment, although the revenue thus procured is disbursed by the Treasury [**256] through the[***38] provisions of the budget without any express authorization in the money bill for its disbursement."£ Id. at 244, 13 A.2d 640. The Court then concluded that "an appropriation of public funds is made by a constitutional mandate or a lawful legislative act whose primary object is to authorize the withdrawal from the state treasury of a certain sum of money for a specified public object or purpose to which such sum is to be applied."£ Id. at 245, 13 A.2d 640. We found, however, that the statute involved in the case was only a general law and not an appropriation measure.  We cautioned that such a law could not "be converted into an appropriation bill merely because there may be an incidental provision for an appropriation of public funds."£ Id. at 251, 13 A.2d 640.

   Dorsey v. Petrott in large part echoes the conclusions reached thirteen years earlier by Attorney General Robinson in his 1927 opinion.  Thus, whether the provisions of ch. 124 are effective to make an "appropriation" to the Authority in the context of the Budget Amendment's provisions is not here in issue.  For, as Dorsey makes clear, when considering the meaning of an "appropriation" for purposes of the[***39] Referendum Amendment, nothing in that Amendment was "fundamentally affected" by the later enactment of the Budget Amendment. 178 Md. at 241, 13 A.2d 640. To the same effect, see Bayne v. Secretary of State, 283 Md. 560, 392 A.2d 67 (1978).

   As earlier indicated, ch. 124 authorizes a State instrumentality, the Maryland Stadium Authority, to borrow funds through the issuance of its bonds, the proceeds to be deposited in its Financing Fund, a special revolving fund [*460]account not within the State Treasury. n11£ The Authority is authorized by ch. 124 to forthwith expend these dedicated funds for site acquisition and Stadium construction.  Chapter 124 also directs the deposit of other funds in the Authority's Financing Fund, including monies received to meet the debt service requirements on the Authority's bonds from (1) annual appropriations directed to be included in the Budget Bill in the form of lease payments to the Authority from the State; (2) funds directed to be paid by the City of Baltimore in the amount of one million dollars annually, and (3) the Authority's operating revenues.  The creation of a Stadium Facilities Fund within the State Treasury is also mandated[***40] by ch. 124, this being the depository for the net proceeds realized from the sports lotteries (these monies being the revenue source enabling the State to make its annual appropriation to the Authority's Financing Fund for debt service purposes).  If and when the amount of money in the Stadium Facilities Fund exceeds 24 million dollars, plus the debt service reserve fund, ch. 124 directs that the excess shall be transferred to a dedicated reserve fund and held for the Authority's credit in furtherance of its corporate purposes.

n11 Under § 6-213 of the State Finance Article (formerly § 198 of Art. 41 of the Maryland Code), a State instrumentality like the Authority may be exempted by statute from depositing its receipts in the State Treasury. As to the Authority's Financing Fund, it is so exempted by ch. 124.  The constitutional powers vested in the Comptroller and in the State Treasurer are not contravened by such a statute.  As to the Comptroller, see § 2 of Art. VI; as to the State Treasurer, see § 3 of Art. VI.

[***41]

   Chapter 124 is, therefore, a finely tuned law containing an intricate financing mechanism to permit the State to receive and expend public monies required to obtain a site and to construct the contemplated sports facilities in the public interest.  Specifically, it authorizes the borrowing of funds through the issuance of bonds, the disbursement of those funds through the Authority's Financing Fund, and the payment of the Authority's bonded indebtedness [*461]through monies directed to be paid by the State to the Authority through annual appropriations in the Budget Bill, by the City of Baltimore, and through the Authority's own revenues included in its Financing Fund.  Simply because no funds were appropriated to the Authority through the Budget Bill which was enacted in the same year as ch. 124 does not convert ch. 124 into other than a law making an "appropriation" within the broader meaning of that term as contemplated by [**257] the Referendum Amendment. In other words, ch. 124 is a type of revenue raising and spending measure intended to be embraced within the exclusionary provisions contained in the Referendum Amendment.

   In so concluding, we have considered whether, [***42] as held by Judge Thieme, the people's right to referendum under Art. XVI should be broadly construed and, conversely, the exception to that right narrowly construed.  The contrary argument is made by the Secretary and GBC, upon authorities presented, that it is the exception, rather than the right, which in light of its purpose should be broadly interpreted.  Neither of these arguments is, of course, controlling of the ultimate construction of the meaning of the Referendum Amendment's excepted provisions.  Our interpretation, as herein expressed, is in accord with the obvious purpose of the exception to insulate revenue raising and spending measures from suspension under Art. XVI's provisions. n12

n12 In view of our holding, we need not address the elaborate arguments presented by the Secretary and GBC that the State's invocation of the statutorily authorized budget amendment process in § 7.201 et seq. of the State Finance Article, as fortified by various sections contained within the Budget Bill itself -- both assertedly authorized by the Budget Amendment in § 52(13) -- effectuated an "appropriation" of funds to the Authority by authorized budget transfer in the present fiscal year.

[***43]

   (B)

   The Secretary and GBC argue that the appropriation of funds under ch. 124, within the contemplation of the Referendum Amendment, was for the purpose of "maintaining [*462] the State Government" and consequently the trial court erred in reaching a contrary conclusion.

   It is well settled in Maryland that government, state or local, acts pursuant to a valid public purpose when it provides parks or sports facilities, including stadiums, for public recreational activities.  See Reyes v. Prince George's County, 281 Md. 279, 381 A.2d 12 (1977) (sports arena); Pressman v. D'Alesandro, 193 Md. 672, 69 A.2d 453 (1949) (Baltimore Stadium); Green v. Garrett, 192 Md. 52, 63 A.2d 326 (1949) (a valid public purpose exists in permitting use of Baltimore Stadium for professional baseball). n13£ Other jurisdictions are well in accord. n14£ Indeed, the State's authorization for the financial support of stadium facilities for professional sports in furtherance of public recreational activities is of long standing. n15£ In addition to Maryland's financial support for the Baltimore's Memorial Stadium and public ownership of the Cleveland and New Jersey Meadowlands stadiums, the Pittsburg[***44] Stadium Authority owns [*463] Three Rivers Stadium; the Metropolitan Council Sports Facilities Commission owns the Metrodome; the Louisiana Stadium & Exposition District owns the Louisiana Superdome; the Tampa Sports Authority owns Tampa Stadium; the City of Irving owns Texas Stadium; the Pontiac Stadium Authority owns Pontiac Silverdome; the Jackson County (Mo.) Sports Complex Authority owns both Royals Stadium and Arrowhead Stadium; the [**258] City of Philadelphia owns Veterans Stadium; King County (Wash.) owns the Kingdome; the City of Atlanta and the Fulton County Recreation Authority own The Omni; and the City of Philadelphia owns the Spectrum.  Maryland Special Advisory Commission on Professional Sports and the Economy, Professional Sports Arena Plan, Final Report, 143-48 (September 1985).

n13 Cases finding the provision of parks for public recreational activities to constitute a valid governmental purpose include Baltimore v. State, 173 Md. 267, 195 A. 571 (1937); Baltimore v. State, 168 Md. 619, 179 A. 169 (1935).

n14 See, e.g., Todd v. McCloy, 196 Ark. 832, 120 S.W.2d 160 (1938); City of Oakland v. Oakland Raiders, 32 Cal.3d 60, 183 Cal.Rptr. 673, 646 P.2d 835 (1982); City of Anaheim v. Michel, 259 Cal.App.2d 835, 66 Cal.Rptr. 543 (Cal.App.1968); Ginsberg v. City and County of Denver, 164 Col. 572, 436 P.2d 685 (1968); Alan v. County of Wayne, 388 Mich. 210, 200 N.W.2d 628 (1972); New Jersey Sports & Exposition Auth. v. McCrane, 119 N.J.Super. 457, 292 A.2d 580 (1971), aff'd 61 N.J. 1, 292 A.2d 545 (1972); Bazell v. City of Cincinnati, 13 Ohio St.2d 63, 233 N.E.2d 864 (1968); Meyer v. City of Cleveland, 35 Ohio.App. 20, 171 N.E. 606 (1930); Martin v. City of Philadelphia, 420 Pa. 14, 215 A.2d 894 (1966); Cathcart v. City of Columbia, 170 S.C. 362, 170 S.E. 435 (1933). See also Opinion of the Justices, 356 Mass. 775, 250 N.E.2d 547 (1969).

[***45] 

n15 The State has authorized the expenditure of over 40 million dollars in public funds for construction on the Baltimore Stadium. See ch. 97, Acts of 1947; ch. 17, Acts of 1947, Special Session; ch. 425, Acts of 1971; ch. 816, Acts of 1975; ch. 691, Acts of 1976; ch. 934, Acts of 1978; ch. 542, Acts of 1979; chs. 707 and 120, Acts of 1980; ch. 457, Acts of 1981; ch. 662, Acts of 1982.

   Even though the expenditure of public funds for the construction of a stadium for professional football and baseball constitutes a valid public purpose, the real question is whether the State's involvement through ch. 124 in this enterprise is within the meaning of Art. XVI's exception of an appropriation "for maintaining the State Government."£ Our cases lead us to the conclusion that ch. 124 does constitute a law making an appropriation for this purpose.

   As already observed, Winebrenner v. Salmon, 155 Md. 563, 142 A. 723 (1928), involved a statute in which the proceeds of an increased tax on gasoline were dedicated to the creation of a special fund to be applied to road construction and maintenance. [***46] In determining whether this appropriation was for maintaining the State Government, Winebrenner recognized that the purpose of the exception in Art. XVI "was to provide against the possibility of the government being embarrassed in the performance of its various functions."£ 155 Md. at 568, 142 A. 723. Appropriations for maintaining the State Government, it said, "included more than merely those which provide overhead expenses, such as salaries and expenses incidental to keeping the government afloat as a going concern."£ Id.£ The Court said that the government "includes all its agencies" and [*464] that maintaining the government "means providing money to enable it to perform the duties which it is required by law to perform."£ Id.£ Noting the importance of the State agency there involved (the State Roads Commission) in the construction and maintenance of highways, we characterized the agency's function as "a primary function of government" and said that the appropriation there made was for maintaining the State government.  In so concluding, we said that a law would not be within the referendum exception "merely because it carried an appropriation to an agency of[***47] the government, if it created an entire new function not theretofore recognized as coming within the sphere of governmental activity."£ Id. at 568, 142 A. 723 (emphasis in original).  We found, however, that the appropriation was not for a new function as the agency had been involved in road construction and maintenance work for many years prior to the statute's enactment.

   Bickel v. Nice, 173 Md. 1, 192 A. 777 (1937) involved a supplementary appropriation bill for the purpose of building a new state office Building. Citing Winebrenner, the Court said that housing for state officers and employees "would seem to be as much a primary function of government as building lateral roads, and equally entitled to be classed as maintaining the government."£ 173 Md. at 10, 192 A. 777. It noted that "the actuating purpose of the excepting clause [in the Referendum Amendment] was to prevent interruptions of government" and that the test thereby intended was "not the need of the appropriation or the project to carry out that purpose, but the design."£ Id.£ Thus, it said if the appropriation was "designed for maintaining the government and the project stated is of a kind that[***48] may be within that classification of maintaining the State Government, it is excepted."£ Id.£ It thus emphasized that the degree of need for the project was not the test; rather, the test was whether the project "was an activity within the class of those for maintaining the government, without reference to the existing need or lack of it."£ Id. at 11, 192 A. 777. "Final power and responsibility for the [*465]decision on the need and usefulness of the building must rest with the General Assembly," the courts having no power to consider the wisdom of the enactment.  Id. at 11, 192 A. 777.

   More recently, in Bayne v. Secretary of State, 283 Md. 560, 392 A.2d 67 (1978), we had to determine whether restrictions on an appropriation in the Budget Bill for funding abortions for indigent women were [**259] for maintaining the State government.  Id. at 570, 392 A.2d 67. We first recognized that "the preservation of the health of the inhabitants is one of the chief purposes of government," that relief of indigent persons is a governmental function, and that "the provision of medical services for indigent persons is a primary function of government."£ Id. at 570-71, [***49] 392 A.2d 67. We held that the appropriation was one for maintaining the State government under Winebrenner and Bickel.  We characterized the government agency there involved (the Department of Health and Mental Hygiene) as "one of the more important agencies of the State."£ Id. at 572, 392 A.2d 67. We also recognized that the State had provided health services for indigent persons for more than thirty years and that the appropriation was not, therefore, for a new function.  Id. at 572-73, 392 A.2d 67. Finally, we refused to question the Legislature's wisdom in designing the medical assistance program and determining the method of paying for it.  Id. at 573, 392 A.2d 67. See also Budget and Referendum Amendments, 39 Md.L.Rev. 558 (1980).

   While believing that construction of stadiums for recreational purposes could in some instances constitute a primary function of State government, Judge Thieme found no such purpose in the provisions of ch. 124.  This was so, he reasoned, because of the General Assembly's declared preference for constructing the sports facilities through private investment, coupled with the fact that the State did not itself incur a constitutional[***50] debt under § 34 of Art. III of [*466] the Constitution. n16£ In addition to these reasons for declaring ch. 124 not to be a law making an appropriation for the maintenance of State government, the appellees urge that the State's broad involvement with athletic facilities and recreational activities does not elevate legislation thereto relating to the status of a primary function of State government.  That sports facilities, including stadiums, may serve a public purpose is not of itself, they claim, sufficient to make the law one for the maintenance of the State government under the rationale of Art. XVI.

n16 According to the Attorney General, the first issuance of the Authority's bonds will be in January of 1988; they will signify that the credit of the State is not pledged to their repayment.  At least one sports lottery has already been conducted and the proceeds presumably deposited in the State Treasury to the credit of the Stadium Facilities Fund.

   In determining whether a particular appropriation[***51] is for maintaining the State government within the meaning of the Referendum Amendment, our cases have variously described the appropriation as being for a "primary," "imperative," or "important" function of State government.  While the facts in those cases readily permitted such a particularized characterization of the function performed by the State agency involved, we did not thereby intend to elevate any of those adjectival terms to the status of a governing test.  As we have already seen, Bickel v. Nice, supra, 173 Md. at 10-11, 192 A. 777 sets forth the controlling considerations for ascertaining whether the appropriation is one for maintaining the State government.  Our concern then, as now, was with the design of the appropriation, not its need or usefulness, so that if the authorized expenditure is "of a kind that may be within that classification [maintaining the State government]," it is not subject to referendum under Art. XVI. Id.£ As otherwise stated in Bickel, the proper test is whether the governmental activity being funded comes "within the class of those for maintaining the government, without reference to the existing need or lack of it."£ Id.[***52] at 11, 192 A. 777.

   [*467] As a State instrumentality, the Authority is statutorily charged with the responsibility for considering the construction and operation of sports facilities for professional baseball and football. That this mission is in furtherance of public recreational purposes, and is a legitimate governmental objective of long duration, is not contested.  The legislative determination to construct these facilities is manifestly not a function of government newly created with the enactment [**260] of ch. 124, n17 nor is it an undertaking for that purpose which is beyond the classification of an activity designed for the maintenance of State government.

n17 We have no reason in this case to consider the continuing viability of the "new function" of government test.

   Indeed, the very magnitude of the project approved by the Legislature in enacting ch. 124 plainly indicates its fundamental governmental purpose; it was one of the most ambitious revenue producing and spending measures enacted [***53]at the 1987 legislative session.  The imaginative manner in which the Legislature chose to underwrite the enterprise was its business; the constitutionality of the method is not challenged.

   It is true that the General Assembly expressed a preference to maximize private investment in the project, and to minimize the use of state lottery revenues.  But this preference was not intended, as we read ch. 124, to partially or totally inhibit or forestall public involvement where that course of action becomes essential.  In this regard, it is implicit in ch. 124, with its intricate public financing mechanism, that the Legislature recognized the certainty of the need for public participation since the project was of a type, and of such financial proportions, as unlikely to attract much in the way of private entrepreneurship.  Notwithstanding the provision for private investment, and that the State's credit was not pledged to the discharge of the contemplated bonded indebtedness, we think the appropriation here involved fully satisfies the Bickel test.  Article XVI requires only that the appropriation be one for maintaining [*468] the State government, and we will not second-guess [***54]the legislative determination that it was so designed to achieve that end.  Whether the stadium project is of more or less fundamental importance than other governmental expenditures is not for the courts to decide.

   IV.

   We next consider whether ch. 122 -- the law designating Camden Yards as the stadium site -- while itself making no appropriation for maintaining the State government, is nevertheless not subject to referendum vote under Art. XVI.

   The Secretary and GBC, analogizing to statutory interpretation, contend that the three stadium bills -- chs. 122, 123, and 124 -- would be considered as one bill -- not severable -- for purposes of interpretation, construction and effectiveness.  Relying upon Sutherland, Statutory Construction, § 44.02 at 482 (4th ed. 1986), they say that the "package" of stadium bills comprises a legislative program, involving related and interacting provisions which, although embodied in three associated bills, are nevertheless legally inseparable.  For purposes of the exceptions in the Referendum Amendment, it is maintained that no reason exists to treat legally inseparable parts of a unified legislative package differently than the several parts[***55] of a single bill.  It is further argued that since no part of ch. 124 is referable (as we have held), then no part of a single unified legislative program, although contained in separate bills, is subject to referendum. It is claimed that if legally inseparable bills were considered separately for purposes of applying the "appropriation" exclusion in the Referendum Amendment, the effect would be the direct suspension of an otherwise nonreferable bill (ch. 124) by reason of the direct referral of another bill in the package (ch. 122).

   Taking the contrary position, the appellees argue that chs. 122 and 124, although of related subject matter, are legally distinct and separate bills. They say that in the [*469] event that ch. 124 is found exempt from referendum, Maryland voters should not be deprived of the right to vote on ch. 122, which is only a general law authorizing the location of the stadiums. In furtherance of their argument, appellees point to the affidavits in the record of Senators Cade and Lapides, each to the effect that the General Assembly intended that ch. 122 be considered separately from ch. 124.  Proof of this intention, appellees claim, is [**261] found[***56] in the fact that the 1987 stadium bills were developed and presented as three distinct measures, unlike predecessor legislation on the same subject, which had been introduced at earlier sessions through a single bill.  According to appellees, this reveals a manifest intention by the Legislature to "use more than one bill in order to treat each facet of the stadium legislation as a distinct entity which could survive the defeat of the others."

   Appellees focus on the fact that the Legislature made passage of ch. 123 expressly contingent upon the enactment of ch. 122, while no such "tie-bar" was provided between chs. 122 and 124.  Appellees say that to apply a "uniform package theory," by which no part of a set of related bills could be submitted to referendum, is to render meaningless the provisions of the Referendum Amendment which allow the public to vote on "part of any act."£ Appellees urge that the defeat of ch. 122 at the polls would not scuttle the entire stadium project, albeit additional legislation to select a new site may be required.

   That the three stadium bills were introduced and considered by the Legislature as a single "package" of bills is well supported by the[***57] record.  Senate bills 228, 230 and 847 (later chs. 122, 123, and 124, respectively) were referred to the Finance and Budget and Taxation committees of the Senate for joint consideration and favorably reported with amendments on March 27.  Senate Journal, 2019-2021, 2024.  On March 30, following debate, the Senate bills were adopted and were passed on second reader.  Id. at 2043-49; 2066-75.  On April 1, after a cloture vote on a motion to limit debate on all three measures, the bills passed the [*470] Senate and were sent to the House of Delegates.  Id. at 2236-37.  On April 2 the Ways and Means Committee of the House, to which the Senate bills were referred, reported the bills favorably and they passed on second reader.  House Journal 2381-82.  They passed third reader in the House on April 3, id. at 2450, and were returned passed to the Senate on April 6.  Senate Journal at 2484.

   The Director of the Department of Fiscal Services of the General Assembly, William S. Ratchford, II, in an affidavit included in the record, states that the three bills were treated in each house as a unit or package. He said:
 
"The committees held briefings on the bills and the[***58] consultant's reports relating to the stadium issue.  At public hearings, witnesses were permitted to discuss any or all parts of any or all the bills.  In the Senate, the staffs of the two committees continually exchanged information and proposed amendments so each committee would be fully cognizant as to all facets of the stadium legislation, irrespective as to which committee was the "lead" committee on the Senate bills.  When committee action in the Senate was undertaken, a special joint meeting of the two committees was held and the two committees voted on amendments to the bills and favorably reported the bills as amended at a single continuous sitting.  In the Ways and Means Committee, the stadium issue was discussed and considered as a single subject and those bills that passed the Senate were considered as a package at the voting session.  When the committee reports on the bills went to the floors of the respective houses, the bills were considered together although, by virtue of both the requirements of the Constitution and the rules of the houses, each was voted upon separately and in the order of its designated bill number; and when a filibuster was undertaken on the floor[***59] of the Senate, the filibuster was [*471] treated by the President, as presiding officer, and by the members as relating to all three bills." n18

n18 The inclusion of the Cade, Lapides, and Ratchford affidavits in the record was not challenged.  As evidence of legislative intent, the Cade and Lapides affidavits run afoul of well-recognized principles.  See Sutherland, supra, at 48.16 and 48.17.  The Ratchford affidavit does not purport to pass upon the Legislature's intention in enacting the stadium bills; rather, it recounts the affiant's view of the historical facts associated with the progress of the bills through the General Assembly.

   As earlier observed, the detailed Report of the General Assembly's Department of [**262] Fiscal Services entitled "The Stadium Issue," prepared in March of 1987, outlined the background history underlying the proposals presented by the stadium bills.  The Report stated that the Authority's purpose to acquire, construct, and operate facilities for professional[***60] baseball and football had two objectives: (1) to insure that the Baltimore Orioles baseball franchise remained in Baltimore under a long-term lease, and (2) to give the State the best possible chance to regain a National Football League (NFL) franchise upon expansion of the league.  Report, at 1.  It pointed out that the Orioles management would not sign a long-term lease at the present Baltimore Memorial Stadium facility, but would enter into such a lease at a new stadium at Camden Yards.  Id.£ Further on, it was said that the NFL had indicated the importance of stadium quality as a major factor in awarding a franchise and that Baltimore's chances would be lessened absent a new stadium. Id.£ The Report extensively reviewed the various stadium sites under consideration, commenting upon the advantages of the Camden Yards site and that this situs was preferred by the Orioles in order to strengthen the team's attractiveness to the fans, including those from Washington, D.C.  The Report favorably commented upon the cost and other matters associated with the Camden Yards site in differentiation from other proposed sites. It also reviewed the financing mechanism, noting in particular[***61] that the "lease-backed" financing scheme over the 30-year life of the Authority's bonds required that the [*472] Orioles enter into a long-term lease at the new facility and that sale of the bonds was contingent on such a lease.

   The Senate Budget and Taxation Committee "Floor Report" similarly recited some of the same considerations.  In particular, it pointed out that "no baseball stadium would be constructed until a long-term lease is signed and no football stadium be constructed until an NFL franchise is awarded."£ The committee report geared the financing mechanism in ch. 124 to the costs of site acquisition and stadium construction at Camden Yards.  And it related that no bond sale would be closed until the Board of Public Works certified that the contemplated long-term Oriole lease at Camden Yards had been obtained and that an NFL franchise had been secured.  The committee report stressed the importance and timing of the sports lotteries as a central fact involved in the stadium financing.

   We have held time and again that statutes dealing with the same subject matter, particularly when enacted at the same session, being in pari materia, must be read together in order[***62] to determine their proper construction.  Bridges v. Nicely, 304 Md. 1, 497 A.2d 142 (1985); Howard Co. Ass'n, Retard. Cit. v. Walls, 288 Md. 526, 418 A.2d 1210 (1980); Police Comm'r v. Dowling, 281 Md. 412, 379 A.2d 1007 (1977). In interpreting Art. XVI, § 2 of the Constitution, the same principles govern what comprises an appropriation "law."£ The provision in Art. XVI under which "[n]o law making any appropriation for maintaining the State Government . . . shall be subject to" referendum has as its constitutional purpose protecting from referendum the purpose or object of the legislative appropriation.

   Consequently, we must determine whether the dominant statutory objective, as set forth in § 13-701 et seq. of the Financial Institutions Article, as amended by ch. 124 can be implemented if ch. 122 is treated as a separate "law" under Art. XVI.  To be taken into account within this framework is the fact that the Legislature chose to enact three separate bills rather than one, as it lawfully could have done.  Fishkind Realty v. Sampson, 306 Md. 269, 280-83, 508 [*473]A.2d 478 (1986); O.C. Taxpayers v. Ocean City, 280 Md. 585, 597, 375 A.2d[***63] 541 (1977); Equitable Life v. State Comm'n, 290 Md. 333, 343, 430 A.2d 60 (1981). See also Andrews v. Governor of Maryland, 294 Md. 285, 449 A.2d 1144 (1982). Also to be considered in this regard is that the Legislature could have, but did not, make the validity of ch. 124 expressly dependent on the passage of either ch. 122 or 123, as it did with chs. 122 and 123.

   Given the form, the substance, the legislative history, and the in pari materia [**263] status of the stadium bills, we think the Legislature intended that they would function in tandem as a unitary solution to its singular objective -- an objective which it timed for immediate implementation, namely, the selection of the Camden Yards site for the sports stadia (ch. 122); site acquisition by the Authority through condemnation proceedings (ch. 123); and funding for the project over a 30-year period to accomplish the end result of stadium construction (ch. 124).  The designation of Camden Yards (ch. 122) was the essential building block upon which the remainder of the legislative edifice was predicated to rest.  The site having been designated and available for prompt acquisition through quick-take and other[***64] condemnation proceedings, the financing provisions of ch. 124 contemplated that the revenue producing sports lotteries (not more than four each year) would be forthwith conducted; n19 that the Authority's bonds would be marketed, beginning in January of 1988, with the proceeds deposited in the Authority's Financing Fund and expended to acquire the Camden Yards properties; and that the State would thereafter lease these properties, whether then useful or not, thereby providing the revenue source for the contemplated annual State appropriation in the Budget Bill to the Authority for payment of the debt service on the Authority's bonds. The stadium bills, thus packaged together for implementation as a single entity, their various parts being mutually dependent upon one another, were manifestly designed to permit prompt [*474] negotiation with the Orioles for a long-term lease prior to the scheduled January, 1988 bond issuance date, and for the acquisition of an NFL football franchise.

n19 The first sports lottery was initiated in August of 1987.

[***65]

   Considered apart, the stadium bills would not be workable to achieve the objective of the appropriation. To sever ch. 122 from ch. 124 to await the outcome of the November, 1988 General Election would not just thwart the legislative design but, contrary to appellees' contention, would scuttle the entire project by fatally undermining its dominant purpose -- to finance the acquisition of a site upon which to construct sports stadiums. As this legislative purpose constitutes, in effect, a single, inseparable "law" making an appropriation for maintaining the State government, none of the individual parts of the package is referable under Art. XVI to a vote of the people. n20£ Our conclusion is supported by County Road Ass'n v. Bd. of State Canvassers, 407 Mich. 101, 282 N.W.2d 774 (1979), a case involving, as here, several functionally interdependent and associated bills comprising one comprehensive legislative scheme, where the court held under Michigan's constitution that no part of the package was subject to a referendum vote.  Other cases have applied a similar rationale in a constitutional referendum context.  See Board of County Commissioners v. Riley, 391 Mich. 666, [***66] 218 N.W.2d 144 (1974); Michigan Good Roads Federation v. Alger, 333 Mich. 352, 53 N.W.2d 481 (1952); Gravning v. Zellmer, 291 N.W.2d 751, 756 (S.D.1980); State v. Meyers, 58 Wash.2d 320, 363 P.2d 121 (1961). See also State v. Dallmeyer, 295 Mo. 638, 245 S.W. 1066 (1922).

n20 That the Legislature used three rather than one bill to accomplish its singular purpose, and made ch. 123 contingent upon the enactment of ch. 122, but not otherwise, is by no means a controlling consideration.  The latter contingency may well be explained on the theory that absent approval of the Camden Yards site the Legislature did not intend to give the Authority carte blanche condemnation powers.

   V.

   Lastly, the appellees draw attention to Judge Thieme's conclusion that the Maryland Stadium Authority is [*475] a "public institution" under Art. XVI and consequently any appropriation for maintaining or aiding such an institution in excess of the "next previous appropriation" was subject to referendum. We disagree[***67] with this view.  Merely because the Authority is designated by statute as a "public corporation" in addition to a State instrumentality does not make it a "public institution" under Art. XVI.

   [**264] The language of the Referendum Amendment, "not exceeding the next previous appropriation for the same purpose" refers to laws for maintaining or aiding any public institution, but not to laws making any appropriation for maintaining the State government.  In his 1927 opinion, Attorney General Robinson recognized this distinction.  He said that the "public institution" exception in Art. XVI related only to "educational and eleemosynary institutions, sometimes designated as State-aided institutions."£ 12 Op. Att'y Gen., supra, at 237.  In so reasoning, he said:
 
"The framers intended that the people should have a check upon the amount of money expended by the legislature for the maintenance or aid of public institutions, not owned or controlled by the State.  Such institutions do not necessarily perform governmental functions and are largely supported by private capital.  Moreover, they are not State controlled, although the State is sometimes given a voice in their management. [***68] It is, therefore, not improper, when providing a check upon legislative power, to reserve to the people the right to control any extensions or increases of State aid to such institutions.  The reference of such increases could not impair the State government in the exercise of its normal functions, whereas appropriations for the executive, legislative and judicial branches of the Government must be provided, in accordance with the financial needs of these departments, without hindrance or delay."£ Id. at 238.
 
That this is now the law of Maryland is beyond all question.  Dorsey v. Petrott, supra, 178 Md. at 235, 13 A.2d 630; Bickel v. Nice, supra, 137 Md. at 10; Winebrenner v. [*476] Salmon, supra, 155 Md. at 567, 571, 142 A. 723; 32 Op. Att'y Gen. 137 (1947).

   We conclude, therefore, that the lower court was wrong in determining that chs. 122 and 124 were laws within Art. XVI § 1(a) which were subject to suspension pending vote of the people at the November 1988 general election.

   JUDGMENT GRANTING WRIT OF MANDAMUS REVERSED; CASE REMANDED TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR ENTRY OF SUMMARY JUDGMENT FOR THE APPELLANTS, SECRETARY OF STATE[***69] AND GREATER BALTIMORE COMMITTEE; COSTS TO BE PAID BY APPELLEES; MANDATE TO ISSUE FORTHWITH.

DISSENTBY: ADKINS

DISSENT: ADKINS, Judge.

   I agree that Chs. 122, 123, and 124, Acts of 1987, are all part of a package. For purposes of this case, Chs. 122 and 124 (the only parts of the package now before us) should be treated, in effect, as a single act, a conclusion I reach as a matter of statutory construction.  I also agree that our cases support the holding that Ch. 124 makes an "appropriation" within the meaning of art. XVI, § 2 of the Constitution.  But I do not agree that this appropriation is for the purpose of "maintaining the State Government."£ And even if it does meet that definition, I believe that reference is required for either one of two reasons. First, I believe that Chs. 122 and 124 are referable because the dominant purpose of the package is to establish public policy, not to appropriate funds. Second, I believe that Ch. 122 alone is referable under art. XVI, § 1(a), permitting reference of "any Act, or part of any Act of the General Assembly."

   I.

   The starting point for discussion is the nature of that "power known as The Referendum" that the "people reserve[d] to themselves" [***70] when they ratified art. XVI of the Constitution in 1915.  Scholars trace the origin and development of the referendum to classical Greece, the Roman [*477] plebiscite, certain customs of the ancient Saxons, the philosophy of Jean Jacques Rousseau, and, most especially, Switzerland.  See, generally, D. Butler and A. Ranney, Referendums (1978); C. Lobinger, The People's Law (1909); E. Oberholtzer, The Referendum in America (2d ed. 1912).  An oft-mentioned American example of direct legislation (of which the referendum is a species) is the New England town meeting.  [**265] But in this country direct legislation was not extensively used at the level of state government until Progressive and Populist pressures caused its rather widespread introduction in the period extending from the late 1890's until our entry into World War I.  It was during this era, of course, that the referendum came to Maryland, as it came to 20 other states.  Referendums at 70.  In one form or another, provisions for direct legislation now exist in many states and the District of Columbia.  Id. at 71-72.

   The referendum has its critics; we noted some of its purported drawbacks in [***71]Tyler v. Secretary of State, 229 Md. 397, 402, 184 A.2d 101, 104-105 (1962). Strong proponents of representative government do not like the concept of direct legislation, sometimes even questioning whether it is consistent with that "Republican Form of Government" which "[t]he United States shall guarantee to every State in this Union . . ." by virtue of art. IV, § 4 of the United States Constitution.  See, e.g., The Referendum in America at 471-513. n1£ Were I to vote on the question today, I [*478] might oppose adoption of a referendum provision such as art. XVI.  But the issue now before us is not whether representative government, undiluted by a referendum provision, is the wiser policy.  It is the meaning and scope of art. XVI as adopted by the voters of Maryland some 72 years ago.  We must construe art. XVI in light of the goals or objectives the people sought to achieve when they adopted it.  See Kaczorowski v. City of Baltimore, 309 Md. 505, 513, 525 A.2d 628, 632 (1987). We should examine the constitutional language "in the light of its origin, the purpose it was intended to serve, as well as the evils it was intended or supposed to remedy."£ Beall v. [***72]  State, 131 Md. 669, 676, 103 A. 99, 102 (1917).

n1 In addition to Dr. Oberholtzer's treatise, anti-referendum arguments are presented in, for example, C. Everstine, The General Assembly of Maryland, 1850-1920, at 570 (1984); McCall, "Representative as Against Direct Legislation," The Initiative Referendum and Recall 164-193 (W. Munro, ed. 1913) [hereinafter the book is cited as Munro]; Bell, The Referendum: Democracy's Barrier to Racial Equality, 54 Wash.L.Rev. 1 (1978); Comment, Judicial Review of Laws Enacted by Popular Vote, 55 Wash.L.Rev. 175 (1979). Typical views of direct legislation proponents are found in L. Tallian, Direct Democracy (1977); Bourne, "A Defense of Direct Legislation" in Munro at 194; and Comment, Initiative & Referendum -- Do They Encourage or Impair Better State Government?£ 5 Fla.St.U.L.Rev. 925 (1977). Both positions are summarized in Referendums at 24-37.  And see Constitutional Convention Commission of Md., Constitution Revision Study Documents, 73-77 (1968).

[***73]

   There does not seem to be much available legislative history to inform us about art. XVI.  Beall was the first case in which our predecessors considered its provisions, and there the Court observed that the referendum was designed to remedy "the control by corrupt methods of legislation and administration by great corporations and a group of individuals in each state who had taken into their hands the machinery of each of the great political parties."£ Beall, 131 Md. at 677, 103 A. at 102. See also Ritchmount Partnership v. Board, 283 Md. 48, 60-61 nn. 8 & 9, 388 A.2d 523, 530 nn. 8 & 9 (1978). Since, however, Maryland's adoption of the referendum occurred during the Progressive era, we may assume that the same hopes that animated the leaders of the movement elsewhere inspired the Maryland citizens who voted for art. XVI.

   Woodrow Wilson argued that adoption of direct legislation would force legislatures to "represent the sovereign people whom they profess to serve. . . ."£ Wilson, "The Issues of Reform," Munro, supra, 69 at 88.  Theodore Roosevelt asserted that "on any bill important enough to arouse genuine public interest there should be power for the people to[***74] insist on the bill being referred to popular [*479] vote, so that the constituents may authoritatively determine whether or not their representatives have misrepresented them."£ Roosevelt, "Nationalism and Popular Rule," Munro, supra, 52 at 57.  Robert Treat Paine declared that the referendum "becomes . . . a true people's veto" and "[t]he people thus become directly sovereign in regard to the acts of their own agents or representatives."£ Paine, "The Development of Direct Legislation in America," Munro, supra, 92 at 93.  Jonathan Bourne thought that the people "are [**266] the best judges of their own self-interest and have a right as sovereign citizens to determine the policies of their government."£ Bourne, "A Defense of Direct Legislation," Munro, supra, 194 at 199.  More contemporary writers have described the purpose of the referendum movement as to "increase ordinary citizens' participation in and power over governmental decisions."£ Referendums at 27.

   The short of it is that art. XVI expressly granted to the people of Maryland the power to invoke a procedure whereby they could make their own decisions as to important matters of public policy.  [***75] Beall, 131 Md. at 678, 103 A. at 102. As another court has put it, by adopting the referendum, "the legislature and the people intended to reserve to themselves the right to pass upon . . . such laws as define substantive rights, or which affect public measures and policies."£ State v. Clausen, 85 Wash. 260, 272-273, 148 P. 28, 32 (1915). Such a constitutional provision, therefore, should be liberally construed to effect these purposes.  See Margolis v. District Court, 638 P.2d 297, 302 (Colo.1981); Kuhn v. Dept. of Treasury, 384 Mich. 378, 385 n. 10, 183 N.W.2d 796, 799-800 n. 10 (1971); Baker v. Jackson, 372 N.W.2d 142, 145 (S.D.1985).

   To be sure, the right of referendum is not unlimited.  Art. XVI itself sets forth certain exceptions to the general principle of referability.  One of these, as we have seen, is the limitation that "[n]o law making any appropriation for maintaining the State Government" is subject to referendum. Art. XVI, § 2.  It is clear that this exception was intended "to provide against the possibility of the government [*480] being embarrassed in the performance of its various functions."£ Winebrenner v. Salmon, 155 Md. 563, 568, [***76] 142 A. 723, 725 (1928). But the embarrassment the framers intended to prevent is only that which would occur if, by referendum petition, an "appropriation for maintaining the State Government" were to be suspended pending a vote on the matter.  In approaching the question of what is meant by an "appropriation for maintaining the State Government" we should read the exception narrowly in light of the importance of effectuating the right of referendum. Lawrence v. Beermann, 192 Neb. 507, 508-509, 222 N.W.2d 809, 810 (1974). The majority, in my view, reverses the process by giving a broad reading to the exception and a grudging one to the referendum provision as a whole.

   As I have said, I do not quarrel with the holding that Ch. 124 makes an appropriation. But I do not believe it is one for "maintaining the State Government" in the art. XVI sense.  The majority, reaching the contrary conclusion, reasons that the provision of parks, sports facilities, stadiums, and the like for public recreational facilities is a valid public purpose. Slip op. at 461, 465.  Again, I have no quarrel with this statement.  But the next step in the analysis is to decide that an appropriation for some[***77] valid public purpose is of necessity one for "maintaining the State Government."£ Slip op. at 465-468.  It is at this point that I part company with my colleagues, for I believe that they have parted company with our decisional law.

   In Winebrenner the Court had before it an act imposing a gasoline tax and disposing of its proceeds "for the construction of lateral roads. . . ."£ 155 Md. at 565, 142 A. at 724. Faced with an art. XVI challenge to this measure, the Court had to decide, among other things, whether the act contained an appropriation for "maintaining the State Government."£ After suggesting a distinction between the referability of an appropriation for some brand new governmental function (which highway construction obviously was not) and referability of appropriation for an established function, the Court looked to the nature of the function [*481] involved.  It concluded that "the establishment, construction and maintenance of public roads is a primary function of government."£ Id., 155 Md. at 568, 142 A. at 725 (quoting Bonsal v. Yellott, 100 Md. 481, 500, 60 A. 593, 594 (1905)) [emphasis supplied].  Thus, our predecessors read the exception now[***78] before us as requiring, in effect, an appropriation "for maintaining a primary function of the State Government."£ A bill making such an appropriation, [**267] they held, is not subject to referendum.

   The same note was sounded in Bickel v. Nice, 173 Md. 1, 192 A. 777 (1937). There the legislation sought to be referred was an appropriation for construction of an office building for state employees.  The Court held that the act was not subject to referendum, explaining that "[h]ousing for state officers and employees would seem to be as much a primary function of government as building lateral roads, and equally entitled to be classed as maintaining the government" [emphasis supplied].  Id., 173 Md. at 10, 192 A. at 781. And in Dorsey v. Petrott, 178 Md. 230, 13 A.2d 630 (1940), where the principal issue was whether an act effected an appropriation, we thought it undoubted that "the conservation of the fisheries of tidewater Maryland . . . is . . . a function of government."£ Id., 178 Md. at 235, 13 A.2d at 633. That was because "[t]hese fisheries constitute one of the most important and valuable natural resources of the State, and their protection, preservation, [***79] development and maintenance are an imperative duty of Government."£ Id. [emphasis supplied].

   Finally, in Bayne v. Secretary of State, 283 Md. 560, 392 A.2d 67 (1978), we dealt with a measure involving the public funding of abortions.  That, too, was not subject to referendum. We characterized the legislation as involving the provision of medical services for indigent persons and said that "the preservation of health of the inhabitants is one of the chief purposes of government."£ Id., 283 Md. at 570, 392 A.2d at 72 [emphasis supplied].  We added that "the relief of indigent persons is a function of government," and concluded "that the provision of medical services for indigent [*482] persons is a primary function of government."£ Id., 283 Md. at 571, 392 A.2d at 73 [emphasis supplied].

   These decisions, it seems to me, lay down two rules about the meaning of an appropriation "for maintaining the State Government."£ The first is that if the appropriation is designed to support some completely new function, never before undertaken by government, and not yet in being, it is subject to referendum. The rationale underlying the rule is that one cannot[***80] "maintain" that which does not yet exist.  This seems to be one of the teachings of Winebrenner, but it does not apply to this case.  While the Camden Yards sports complex is not yet in esse, State fiscal support of a stadium is nothing novel.

   The second rule, which does apply here, is that even as to an existing governmental activity, an appropriation bill does not fall within the constitutional exception unless it relates to a primary function of government; that is, one as to which the government has an imperative duty to maintain. While the majority scoffs at the notion that we intended "to elevate any of those adjectival terms to the status of a governing test," slip op. at 466-467, I disagree.  Perhaps I am naive; nevertheless, I believe that words in judicial opinions are not mere rhetorical flourishes, but rather carefully considered verbal devices artfully designed to express specific ideas.  I cannot accept the notion that our predecessors used language so loosely in four important cases. n2

n2 Winebrenner is the first case to employ one of these "adjectival terms"; the subsequent cases that use them all follow from Winebrenner.  It is of particular interest, then, that the Winebrenner Court in 1928 did not adopt the conclusion of Attorney General Robinson's 1927 opinion to the effect that "the broad language of the [appropriation] exception was intended to include all laws providing revenue for and/or appropriating monies to any organized department of the State . . . [for the] exercise of State functions."£ 12 Op. Att'y Gen. 228, 236 (1927). This reading of the exception is much like that adopted by the majority today.  Notably, the Attorney General did not use any adjective to modify "State functions."£ Notably, the Winebrenner Court did, as did the Court in Bickel, Dorsey, and Bayne.  It is not unreasonable to infer that the difference in language arose from a different view about the interpretation of the appropriations exception, and a judicious selection of words to express that different view.

[***81]

   [*483] Moreover, if one accepts that words such as "primary," "imperative," and "chief" were intended to have the meanings usually attributed to them, the "appropriation" exception becomes quite consistent with the fundamental purpose of the referendum. If the appropriation is indeed made for a primary, or imperative, or essential, [**268] and ongoing function of government, then the act cannot be referred.  That would, indeed, "embarrass" government and be detrimental to the public.  Should such a measure be suspended, thereby bringing to a halt a critical governmental operation?  But that grave problem does not arise if the appropriation is for some lesser function, one that is not essential, but merely legally permissible for government to perform.  In the latter instance, the people's right to decide policy issues for themselves (the core purpose of the referendum) should prevail. n3

n3 The majority's view also seems to be that once the legislature has determined "need" for a project, an appropriation for that project is not subject to referendum if the project is for some proper governmental purpose. Slip op. at 468.  Were that the case, the referendum provision would be a virtual dead letter.  An act proposing any project whatsoever within the broad realm of proper governmental purpose would be referendum-proof if it included a revenue raising measure.  But I do not read the cases to permit such a facile frustration of the constitutional right.  The "need" discussion was first developed in Bickel, and what is said there is that if the appropriation involves a primary function of government, we will not second guess the legislature as to how the function is to be performed.  173 Md. at 10-11, 192 A. at 781-782. It is only in that sense that "need" is the sole prerogative of the legislature.

[***82]

   Although not in the context of a referendum, the Supreme Judicial Court of Massachusetts has well explained the difference between primary or essential government functions and lesser ones:

   We are of opinion that a large multi-purpose stadium or an arena for public activities and events, conventions, professional and amateur athletic events, and other large gatherings may be for a public purpose if the expenditure [*484]of public funds, the extension of public privileges, powers, and exemptions, and the use, rental, and operation of the projects are adequately governed by appropriate standards and principles set out in the legislation. The Legislature may reasonably determine that there are economic, civic, and social advantages to Boston, to eastern Massachusetts, and to the Commonwealth as a whole, from providing in the largest city in the State a stadium and an arena large enough to attract conventions and similar gatherings and to provide for audiences sufficient to support enterprises of interest to large numbers of people, and suitable to provide recreation and instruction to citizens and others. . . .

   The provision of such facilities, however, is not as clearly[***83] and directly a public purpose as supplying housing, slum clearance, mass transportation, highways and vehicular tunnels, educational facilities and other necessities.  As to such essential enterprises, the public objectives are well understood.  The appropriate and usual methods of achieving them also, on the whole, are well established.  In such cases, somewhat general standards of public convenience and necessity and principles of prudent, frugal government administration, necessarily to be implied from the essential projects themselves, may adequately guide the expenditure of public funds, even where there may be involved arrangements with private persons or entities operating for profit. . . .
 
Opinion of the Justices, 356 Mass. 775, 795, 250 N.E.2d 547, 558 (1969) [citations omitted].

   Returning to the particular matter before us, I reiterate my agreement that public parks, museums, art galleries, sports facilities and the like are all proper objects of governmental support.  It might even be argued that in our urbanized society some, especially those such as parks which are not likely to be provided by the private sector, are primary or necessary functions.  But [***84]that cannot be said of football and baseball stadiums, designed not only for public [*485] recreation but also for substantial private profit. No doubt these stadiums will bring money to Baltimore City and to the State.  No doubt they will provide amusement for football and baseball fans, and employment for athletes and others who provide related services.  But government will not come to a halt if the stadiums are not built, and no primary or essential function of government will be one whit [**269] affected if the people are allowed to vote on the stadiums package in 1988.  A suggestion that the General Assembly itself recognized this fact is seen in the legislative emphasis on the desirability of private funding for the sports complex.  See the preamble to Ch. 124.  Moreover, whether to have these stadiums and where to place them and how they are to be funded are important policy questions of precisely the sort that should be subject to referendum. A proper reading of art. XVI, § 2 should permit the referendum appellees seek.

   II

   Even if Ch. 124 makes an "appropriation for the maintenance of the State Government," and even if we consider the stadiums package as[***85] a single bill, I believe the package is subject to referendum. This is so because Chs. 122 and 124, taken together, do not constitute an appropriation bill.  "[A]n act of the General Assembly which relates primarily and specifically to a subject matter of general legislation cannot be converted into an appropriation bill merely because there may be an incidental provision for the appropriation of public funds."£ Dorsey, 178 Md. at 251, 13 A.2d at 640. There, Judge Parke, writing for the Court, illustrated the point by quoting Bengzon v. Secretary of Justice and Insular Auditor of the Philippine Islands, 299 U.S. 410, 413, 57 S.Ct. 252, 254, 81 L.Ed. 312, 314 (1937):
 
The term "appropriation act" obviously would not include an act of general legislation; and a bill proposing such an act is not converted into an appropriation bill simply [*486] because it has had engrafted upon it a section making an appropriation. An appropriation bill is one the primary and specific aim of which is to make appropriation of money from the public treasury.

   In Dorsey, legislation substantially changing "the policy of the State with reference to the mode in which the natural[***86] resources of the State are to be conserved", 178 Md. at 249, 13 A.2d at 640, was not an appropriation even though it contained provisions for salaries, for fines, and for certain fees (the last two of which would become part of the State's funds).  This law, the Court said, was manifestly "a general law, and not an appropriation measure," 178 Md. at 247, 13 A.2d at 639, because its primary and specific aim was not to make appropriations from the public treasury.  Id., 178 Md. at 251, 13 A.2d at 641. So it is with the legislation before us.

   The package consists of Chs. 122, 123 (Ch. 123 was not petitioned to referendum, but nevertheless was part of the package) and 124.  As the majority makes clear, the first two of these have nothing to do with appropriations in any sense whatsoever.  Slip op. at 439-442.  Even the third is not an appropriation bill in the usual sense of one that authorizes the disbursement of public funds. It does no more than provide for the raising of revenue and for certain funding mechanisms.

   The heart of the package is Ch. 122, aptly characterized by the majority as "the essential building block upon which the remainder of the legislative edifice was predicated[***87] to rest."£ Slip op. at 472.  This Act is the sine qua non of the package; it identifies Camden Yards as the site of the sports complex.  Ch. 123 augments it by granting condemnation powers to the Stadium Authority.  These two measures clearly are what the Dorsey Court describes as "general law" and they show that the dominant theme of the package, as in Dorsey, is "general law" and not "appropriation."£ Under Dorsey's reasoning the package (or Chs. 122 [*487] and 124 -- the portions of it as to which petitions were filed) is subject to referendum.

   III.

   There is a third reason why Ch. 122, at least, is referable, even if Ch. 124 is "an appropriation for the maintenance of the State Government" and if we consider the stadiums package as a single bill.  The art. XVI process is available because the power of referendum includes the power "to approve or reject at the polls, any Act, or part of any Act of the General Assembly. . . ."£ Art. XVI, § 1(a) [emphasis supplied].

   [**270] I recognize that in Bayne we said that "[a] part of an excepted law ordinarily is not referable."£ 283 Md. at 576, 392 A.2d at 75. In that case the Court concluded that conditions[***88] attached to a budget bill appropriation for public health purposes did not constitute improper legislating in the budget. The conditions were "an integral part of the appropriation" and did not "reflect [an] attempt to establish policy by general legislation."£ 283 Md. at 574, 392 A.2d at 74. This language correctly applies the reasoning in Berlin v. Shockley, 174 Md. 442, 199 A. 500 (1938). The holding in Berlin was that certain legislation could not be referred because it dealt with "licensing, regulating, prohibiting, or submitting to local option the manufacture or sale of malt or spirituous liquors. . . ."£ Id., 174 Md. at 444, 199 A. at 500. Laws of this sort are barred from referendum by art. XVI, § 6.  To reach that result, the Berlin Court concluded that the dominant purpose of the legislation before it was the regulation of the sale of liquor, just as the Bayne Court found that the dominant purpose of the legislation before it was an appropriation for the maintenance of State government.  But Berlin goes on to explain that "[a]n association in a single enactment of a referable law and one of the kinds excepted from the referendum, if that would[***89] be feasible without violation of the constitutional prohibition in article 3, section 9, against including more than one subject, might, perhaps, be found to leave part of an enactment [*488] referable, but not part of the excepted law."£ 174 Md. at 446, 199 A. at 501.

   What this means is that if an act contains both an appropriation for the maintenance of State government and substantive policy determinations, the latter, at least, may be referred.  If the policy material is dominant, then the reference would be under the Dorsey principle discussed above in Part II.  If the appropriation material is dominant, there would be no reference under Bayne and Berlin.  If neither is dominant, then art.  XVI can be invoked as to the policy or general law material, if not as to the strictly appropriation material.  This occurs by virtue of the "part of any Act" portion of art. XVI, § 1(a), as construed early on in Winebrenner, although partial reference was not available there because, as Judge Adkins noted, "[the] petition for referendum was on the entire act" and not on any part of it.  155 Md. at 571, 142 A. at 726. Winebrenner's analysis was based on State [***90]  v. Clausen, 85 Wash. 260, 148 P. 28 (1915). In that case the Supreme Court of Washington held that "[i]t was clearly the intention of the people to except [from referendum] all ordinary appropriation bills."£ Id., 85 Wash. at 272, 148 P. at 32. This was because
 
[a]n appropriation bill is not a law, in its ordinary sense.  It is not a rule of action. . . .  It defines no rights and punishes no wrongs.
 
Id.£ But
 
[i]f the people desire a referendum upon any part of the bill referred to as the fisheries code, they have reserved that right in subdivision "b" of section 1, art. 2 of the amendment.  They say that a referendum may be ordered on any act, bill, law or any part thereof passed by the legislature.  If the people desire to pass upon the character of appliances for taking fish or any other feature of the law, they may do so, but it does not follow that an appropriation made by the legislature . . . must fail while [*489] some particular item in a general code is subject to the referendum.
 
Id.

   In other words, although an appropriation may not be subject to referendum, the other parts of the act are.  If the legislature chooses[***91] to pass laws which combine appropriations with general, substantive legislation, with neither subject being dominant, thus making it impossible to characterize them as being wholly appropriations or wholly not, the non-appropriations portions are referable. This gives meaning to the "part of any Act" language in art. XVI and is consistent with the notion of liberal construction of the referendum amendment to effectuate its goals.

   In the case before us, even if Ch. 124 is an excepted appropriation, Ch. 122 clearly is not.  If Ch. 122 is not the dominant part of the package (although as I have stated [**271] above, it actually would seem to be), neither is Ch. 124.  Ch. 124 may not be subject to referendum, but Ch. 122 is.  It is "any part" of the package we are treating as a single act and makes no appropriation for maintaining State government. n4

n4 The authorities cited by the majority to support its view that no part of the package is referable, slip op. at 473-474, are unpersuasive.  No Maryland case is mentioned.  The Michigan and South Dakota cases are not on point because the referendum provisions in those states, unlike that of Maryland, do not permit referral of part of an act.  Washington, as we have seen, does, but State v. Myers, 58 Wash.2d 320, 363 P.2d 121 (1961), in no way lessens the authority of Clausen.  In Myers no contention was based on the partial reference language of Washington's constitution.  Rather, the argument was that the act, part of which was sought to be referred, simply was not a law "necessary for the immediate preservation of the public peace, health, or safety [or] support of the State government and its existing public institutions."£ 58 Wash.2d at 326, 363 P.2d at 125. The Court held that the legislative finding, that the act was of this character, should be accepted, thereby precluding a referendum. 58 Wash.2d at 330-331, 363 P.2d at 127. Similarly, in State v. Dallmeyer, 295 Mo. 638, 245 S.W. 1066 (1922), there is no discussion of constitutional permission for partial reference.

[***92]

    For the reasons stated, I would affirm the judgment of the Circuit Court for Anne Arundel County, or at least that portion of the judgment submitting Ch. 122 to referendum. 

William M. IRELAND v. STATE of Maryland 
No. 143, September Term, 1986
 
Court of Appeals of Maryland
 
310 Md. 328; 529 A.2d 365; 1987 Md. LEXIS 268

 August  6, 1987

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County - Judge Morris Turk).

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED.  COSTS TO BE PAID BY PETITIONER.

CORE TERMS:  common law, imprisonment, fine, assault and battery, assault, battery, misdemeanor, sentence, peace, modification, imprison, sentenced, sentence of imprisonment, simple assault, punished, aggravated, felony, Laws of Maryland, penitentiary, convicted, unknown, modify, terms of imprisonment, power to impose, kept in prison, criminal law, predecessors, prescribed, accessory, deleting

COUNSEL: Mark Colvin, Assistant Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for appellant.

   Ann E. Singleton, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on the brief), Baltimore, for appellee.

JUDGES: Murphy, C.J., Eldridge, Cole, Rodowsky, Couch, * McAuliffe and Adkins, JJ.

* Couch, 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: [*330] [**365] We are here concerned with the punishment that may be imposed following conviction of the common law crimes of assault and battery. William M. Ireland was [**366] charged in the District Court of Maryland sitting in Anne Arundel County with committing a battery upon his estranged wife by hitting and kicking her.  He demanded a jury trial, causing the case[***2] to be removed to the circuit court where he was convicted. Judge Morris Turk imposed a sentence of three years imprisonment, from which Ireland appealed.  The Court of Special Appeals affirmed the conviction and sentence in an unreported opinion and we granted certiorari to consider Petitioner's claim that the courts of this State have no authority to impose a sentence of imprisonment for the crimes of assault or battery.

   Petitioner's argument rests upon three major premises: 1) assault and battery are common law offenses in this State, for which the Legislature has provided no particular penalty; 2) a sentence of imprisonment was not a legally permissible sanction for these crimes according to the common law of England as of July 4, 1776; and, 3) this Court does not have authority to modify the common law by providing for a penalty that did not exist at the time the common law was adopted in this State.  Petitioner's first contention is clearly correct, and therefore we turn to the remaining contentions which we shall discuss in reverse order.

   I.

   Article 5 of the Declaration of Rights provides:

   That the Inhabitants of Maryland are entitled to the Common Law of England, and[***3] the trial by Jury, according to the course of that Law, and to the benefit of such of English statutes as existed on the Fourth day of July, seventeen hundred and seventy-six; and which, by experience, [*331] have been found applicable to their local and other circumstances, and have been introduced, used and practiced by the Courts of Law or Equity; . . . except such as may have since expired, or may be inconsistent with the provisions of this Constitution; subject, nevertheless, to the revision of, and amendment or repeal by, the Legislature of this State. . . .

   The determination of the nature of the common law as it existed in England in 1776, and as it then prevailed in Maryland either practically or potentially, and the determination of what part of that common law is consistent with the spirit of Maryland's Constitution and her political institutions, are to be made by this Court.
 
Whether particular parts of the common law are applicable to our local circumstances and situation, and our general code of laws and jurisprudence, is a question that comes within the province of the Courts of justice, and is to be decided by them.  The common law, like our Acts of[***4] Assembly, are subject to the control and modification of the Legislature, and may be abrogated or changed as the General Assembly may think most conducive to the general welfare; so that no great inconvenience, if any, can result from the power being deposited with the judiciary to decide what the common law is, and its applicability to the circumstances of the State, and what part has become obsolete from non-user or other cause.  State v. Buchanan, 5 H. & J. 317, 365-66 (1821).

   Because of the inherent dynamism of the common law, we have consistently held that it is subject to judicial modification in the light of modern circumstances or increased knowledge.  Harris v. State, 306 Md. 344, 357, 509 A.2d 120 (1986); Kelley v. R.G. Industries, Inc., 304 Md. 124, 497 A.2d 1143 (1985). Equally well established is the principle that the common law should not be changed contrary to the public policy of this State set forth by the General Assembly. Kelley, supra, 304 Md. at 141, 497 A.2d 1143; Harrison v. Mont. Co. Bd. of Educ. , 295 Md. 442, 460-61, 456 A.2d 894 (1983). In the area of civil common [*332]law this Court has not only modified the existing law[***5] but also added to the body of law by recognizing new causes of action.  Kelley, supra, (recognizing cause of action against manufacturers or marketers for damages caused by "Saturday Night Special" handguns); Boblitz v. Boblitz, 296 Md. 242, 462 A.2d 506 (1983) (permitting negligence action by one spouse against [**367] another); Moxley v. Acker, 294 Md. 47, 447 A.2d 857 (1982) (deleting force as a required element of the action of forceable detainer); Adler v. American Standard Corp., 291 Md. 31, 432 A.2d 464 (1981) (recognizing tort of abusive or wrongful discharge); Lusby v. Lusby, 283 Md. 334, 390 A.2d 77 (1978) (deleting the defense of interspousal immunity in the case of outrageous intentional torts); Harris v. Jones, 281 Md. 560, 380 A.2d 611 (1977) (recognizing tort of intentional infliction of emotional distress).

   Petitioner acknowledges the breadth of this Court's decisions affecting the civil common law, but contends that this civil experience cannot serve as precedent in the common law of crimes and punishments.  He argues that the regulation of the criminal law, and particularly the establishment of new offenses and the fashioning of appropriate[***6] sentencing alternatives, should be left entirely to the Legislature.  Our cases to date have not drawn the distinction suggested by Petitioner.  This Court has often cited its general authority to fashion and mold the common law when dealing with criminal cases. A brief summary of our more recent cases in this area will indicate the broad spectrum of modifications we have made to the criminal common law. Robinson v. State, 307 Md. 738, 517 A.2d 94 (1986) (holding that the "depraved heart" species of common law murder does not require that more than one life be placed in danger); Harris v. State, supra, (acknowledging changes in the common law right of allocution since 1776); Jones v. State, 302 Md. 153, 486 A.2d 184 (1985) (changing the common law to allow an accessory to be convicted of a greater crime than that of which the principal was convicted); Evans v. State, 301 Md. 45, 481 A.2d 1135 (1984), cert. [*333] denied, sub nom Grandison v. Md., 470 U.S. 1034, 105 S.Ct. 1411, 84 L.Ed.2d 795 (1985) (changing common law of former jeopardy to permit successive prosecution for the same offense by separate sovereigns); Lewis v. State, 285 Md. 705, 404 A.2d[***7] 1073 (1979) (changing common law to permit prosecution of accessories before trial or conviction of principal); Pope v. State, 284 Md. 309, 396 A.2d 1054 (1979) (abolishing common law offense of misprision of felony because inconsistent with contemporary standards).

   Petitioner suggests that these modifications of the common law of crimes and punishment have largely affected procedural matters, and where substance has been involved the action has been one of subtraction and not one of addition, i.e. that we have declined to recognize crimes, elements or principles affecting prosecution, but we have never created an offense or recognized a punishment that was unknown to the common law. For the purposes of discussion, and to avoid the difficulty of distinguishing matters of substance from those of procedure, we accept for the moment Petitioner's characterization of our previous role in the development of the criminal common law. This historical precedent could represent, as Petitioner suggests, an implicit recognition that it is exclusively within the domain of the Legislature to create new crimes and punishments.  On the other hand, it could represent judicial self-restraint in [***8]an area of joint authority, perhaps in recognition of the active role taken by the Legislature in this field since at least 1809. n1£ Or, it could simply be a product of the fact that we have never been asked to accomplish such a modification. As intellectually interesting as these questions may be, we find no need to answer them in this case.  Not one of our earlier cases dealing with the permitted punishment for assault and battery indicates that this Court was engaged in the process of modifying existing common [*334]law. Whenever this Court has exercised that power, it has been careful to point out what the common law had been, why a change was necessary, and the sources of the Court's authority to accomplish the change.  No such discussion may be found in the many decisions of this Court discussing the available sentences for the crimes [**368] of assault and battery. We are persuaded that the resolution of this case turns not upon the power of this Court to modify the common law, but upon its unquestioned authority to determine and interpret that law.

n1 Chapter 138 of the 1809 Laws of Maryland, often called The Penitentiary Act, was the precursor to what is now Art. 27 of the Code, and dealt comprehensively with crimes, punishment, and the construction and operation of a penitentiary.

[***9]

   II.

   We turn to a discussion of the common law of punishments of misdemeanors, particularly of assault and battery, in mid-eighteenth century England. Petitioner's principal contention is that the only sanction permitted was a fine. Alternatively, he argues that if imprisonment was permitted, it could not exceed two years.  The State contends that a judge in England or colonial America possessed broad discretion in this type of case, including the authority to sentence to imprisonment and to impose a fine, without specific limitation as to either.  Our examination of the cases and of the writings of legal commentators and historians discloses the existence of respectable authority supporting the argument made by each party, but we believe the more persuasive authority supports the State's view of the matter.

   Petitioner cites several authorities for the proposition that English common law subjected a person guilty of an assault or battery to an action for damages at the suit of the party injured and to an indictment at the suit of the king "wherein he shall be fined according to the heinousness of the offense."£ 1 W. Hawkins, Pleas of the Crown 264 (6th ed. 1788); 1 M. Bacon, [***10] New Abridgment of the Law 156 (4th ed. 1778); 1 R. Burn, The Justice of the Peace and Parrish Officer (10th ed. 1766); F. Pulton, De Pace Regis et Regni (1610); E. Wingate, The Body of the Common Law of England 24 (1655) (Reprint). Petitioner also [*335] draws upon an American treatise of 1815 as support for this proposition.  In J. Hall, The Office and Authority of a Justice of the Peace in the State of Maryland 27 (1815), the author adopts the statement of W. Hawkins, Pleas of the Crown, supra, concerning the civil and criminal remedies for assault and battery.

    Moreover, Petitioner argues, the enactment in England and in this country in the eighteenth and nineteenth centuries of statutes providing for specific terms of imprisonment for the commission of aggravated assaults furnishes support for his position, for if unlimited imprisonment could be imposed for all assaults it would be unnecessary to provide specific penalties for some of them.  In Manley v. State, 7 Md. 135 (1854), our predecessors referred to a two count indictment charging assault with intent to murder and assault and battery respectively, and said, at 148:
 
The [charge] [***11] set out in the first count "is defined and prohibited" by the Act of 1809, ch. 138, State v. Dent, 3 G. & J. 8, by which a severer punishment is prescribed than at common law.

   Standing in opposition to Petitioner's contention is an unbroken line of cases extending back just over a century.  This Court has consistently held that where the Legislature has not provided a penalty for common law misdemeanors such as assault and battery, the punishment may be by fine, or imprisonment, or both and that the only limitation upon the number of years to which one may be sentenced is, ordinarily, the prohibition against cruel and unusual punishment contained in the Eighth Amendment to the United States Constitution and Articles 16 and 25 of the Maryland Declaration of Rights.  Street v. State, 307 Md. 262, 265-66, 513 A.2d 870 (1986); Simms v. State, 288 Md. 712, 714, 421 A.2d 957 (1980); Gleaton v. State, 235 Md. 271, 277-78, 201 A.2d 353 (1964); Duff v. State, 229 Md. 126, 127, 182 A.2d 349, cert. denied, 371 U.S. 898, 83 S.Ct. 199, 9 L.Ed.2d 130 (1962); Burley v. State, 226 Md. 94, 96-97, 172 A.2d 394 (1961); Yantz v. Warden, 210 Md. 343, 351, 123 A.2d 601,[***12] cert. denied, 352 U.S. 932, 77 S.Ct. 236, 1 L.Ed.2d 167 [*336] (1956); Roberts v. Warden, 206 Md. 246, 111 A.2d 597 (1955); Heath v. State, 198 Md. 455, 467, 85 A.2d 43 (1952); Apple v. State, 190 Md. 661, 668, 59 A.2d 509 (1948); Mitchell v. State, 82 Md. 527, 534, 34 A. 246 (1896); State v. Falkenham, 73 Md. 463, 466, 21 A. 370 (1891); Hannon v. State, 63 Md. 123, 126 (1885).

   [**369] By ch. 120 of the Act of 1882 the Legislature specified whipping n2 as a permitted punishment for a "brutal" battery committed by husband upon his wife.  This Court made it clear, however, in Hannon v. State, supra, that this punishment was in addition to the common law sanction of imprisonment.

n2 Whipping was not unknown as a common law punishment for assault. At the 1667 sitting of the Provincial Court of Maryland Thomas How was found guilty of assaulting the High Sheriff of Calvert County during the attempted service of a writ of attachment, and was sentenced to "forty stripes on the bare back."£ How's wife, who had assisted him in the assault, had her sentence of forty stripes remitted because she was pregnant, but the court ordered that she be tied to the opposite side of the tree during the whipping of her husband.  57 Archives of Maryland -- Provincial Court Proceedings, at 198-99 (1667).

[***13]

   In Mitchell v. State, supra, 82 Md. at 529, 34 A. 246, appellant's counsel offered the interesting commentary that the practice in Baltimore City in the late nineteenth century was "to give not more than two years in jail for any misdemeanor, the punishment of which was not provided for in the Code."£ Counsel did concede that the practice in the counties may have been different, and that in 1894 Chief Judge Harlan of the Supreme Bench of Baltimore City had imposed a sentence of five years imprisonment for a misdemeanor. n3£ And in the very early case of State v. Falkenham, supra, 73 Md. at 466, 21 A. 370, this Court held that where the Legislature created a new offense of [*337] cruelty to animals but did not prescribe the penalty for its violation, "it is left to the courts to impose the common law punishment of fine, or imprisonment in jail, or both, according to the circumstances of each case as it arises."

n3 From another source we learn that in 1903 Judge John Upshur Dennis of the Supreme Bench affirmed the sentence of five years imprisonment imposed by a Justice of the Peace in Baltimore City for the crime of assault. See A. Thomas, Procedure in Justice Cases § 373, at 292-95 & n. 3 (1906), commenting on the case of Hebron v. State which was reported in The Daily Record of September 3, 1903.

[***14]

   Additionally, we find in ch. 201 of the 1835 Laws of Maryland legislative recognition of the authority of judges to impose a sentence of imprisonment upon conviction of assault and battery. As we have noted, ch. 138 of the Laws of 1809 dealt comprehensively with crimes and punishments, but it did not effect any change in the common law of assault and battery. By the Act of 1835, the Legislature created a first tier trial court to be presided over by Justices of the Peace, and to be styled the District Court.  By § 8 of the Act the District Court was given criminal jurisdiction in cases of assault and battery, subject only to the right of the defendant to demand trial in the County Court. Significantly, the judges of the District Court were given the power to "inflict punishment by fine and imprisonment" in such cases.  Because no statute to that time had prescribed the penalty for simple assault and battery, we consider this enactment a clear recognition of the permissible common law sanctions for this type of offense.  To hold otherwise, i.e. that the statute represented an initial grant of authority to imprison for these offenses, would lead to the illogical result that the[***15] Legislature had granted the power to imprison for this offense to Justices of the Peace but withheld it from judges of the higher County Courts.

   The proposition that the common law punishment for misdemeanors of this type included imprisonment as well as fine is also supported by a number of respected scholars.  Blackstone, in the fourth volume of his Commentaries on the Laws of England, at 6 states:
 
[I]n the case of battery, or beating another, the aggressor may be indicted for this at the suit of the king, for disturbing the public peace, and be punished criminally by fine and imprisonment: and the party beaten may also have his private remedy by action of trespass for the [*338] injury, which he in particular sustains, and recover a civil satisfaction in damages.
 
 In 2 Bishop, Criminal Law 39 (9th ed. 1923), the author said:
 
Assault is a misdemeanor, not a felony; therefore at common law it is punishable [**370] by fine and imprisonment, to which may be added bonds to keep the peace.
 
And in the same volume, at 32, it is said:

   Still, from early times, when misdemeanors were punished by whatever fine or imprisonment the judge[***16] might deem it right to impose, it has been the judicial habit to look upon assaults as more or less aggravated by such attendant facts as appealed to the discretion for a heavy penalty. . . .  An assault is deemed to be more or less enormous according to the facts of the particular transaction.
 
See also, J. Beattie, Crime and the Courts in England 1660-1800, 549 (1986), noting that in the second quarter of the eighteenth century in England persons convicted of assault continued to be sentenced to terms of imprisonment with some regularity although that was not the punishment of choice. n4£ An early encyclopedia of American law stated: "[A]t common law, an assault, or an assault and battery, may be punished either by fine or imprisonment or by [*339] both."£ 5 C.J. Assault and Battery § 363 (1916).  Recently, see 6A C.J.S. Assault and Battery § 130 (1975).  In Maryland, Professor Lewis Hochheimer wrote:

   The common-law punishment for treason and felony is death; for misdemeanors, fine and imprisonment, or either, at the discretion of the court.

   L. Hochheimer, The Law of Crimes and Criminal Procedure § 344 (1897).
 
To the same effect[***17] see A. Thomas, Procedure in Justice Cases § 373 (1906).

n4 Professor Beattie also notes that the trend toward the use of imprisonment as a punishment began in earnest in England about the time of the Revolution. This is attributed in part to the loss of the sanction of "transportation" of offenders to the Colonies, but in large part was due to a changing philosophy of punishment and reformation.  J. Beattie, Crime and the Courts in England 1660-1800, 520-618 (1986).  Colonial America was probably slower to embrace imprisonment as a punishment for practical and economic reasons.  The work force was limited, and the Colonists could ill afford the loss of an able bodied person, much less the expense of building large "gaols" and maintaining prisoners.  Utilization of penitentiaries was unknown in this country until the turn of the century.  N. Teeters, The Cradle of the Penitentiary, at 1 (1955). The paucity of cases of imprisonment for simple assault and battery during that period is probably better explained by the economics and penal philosophy of the time than by any concern on the part of the judges that they lacked the power to imprison for those offenses.

[***18]
 
   Other states have considered the question and have concluded that the common law punishment for assault and battery and similar misdemeanors includes imprisonment. Cornelison v. Commonwealth, 84 Ky. 583, 2 S.W. 235 (1886); Rell v. State, 136 Me. 322, 9 A.2d 129 (1939); O'Neil v. Commonwealth, 165 Mass. 446, 43 N.E. 183 (1896); State v. McNeil, 75 N.C. 15 (1876); State v. Charles, 107 S.C. 418, 93 S.E. 136 (1917), and Ex Parte Garrison, 36 W.Va. 686, 15 S.E. 417 (1892). In Cornelison, supra, the Court of Appeals of Kentucky considered the precise question that is before us.  There the defendant, an attorney, was found to have assaulted and beat a judge with a stick and cowhide and was sentenced to imprisonment for three years and a fine of one cent.  He appealed, contending that at common law an assault and battery was punishable only by fine. The Kentucky court considered authorities from both sides of the Atlantic, and concluded:
 
At common law the judge might fine or imprison at his discretion, or both fine and imprison; and, when no aggravating circumstances attended the commission of the offense, the judges there, as the juries here, impose[***19] the slightest penalty, which is the fine, because, in legal contemplation, a simple assault did not demand severer punishment.
 
2 S.W. at 239.

   Finally, on this point we have the explicit guidance of the House of Lords in Verrier v. Director of Public Prosecutions, [*340] 2 App.Cas. 195, 3 All E.R. 568 (1966). Verrier claimed, as does Petitioner here, that the penalty of imprisonment could not be imposed upon conviction of a common law misdemeanor, or in the alternative that imprisonment must be limited in such cases to two years.  Lord Pearson, writing for the House of Lords stated:

   [**371] It was contended that there never has been at common law, although admittedly there has been under statutes, any power to impose imprisonment (at any rate for a misdemeanour) for any longer term than two years.  Counsel gave an interesting outline of the history of imprisonment. He said that in early times it was not treated as punishment in itself but was used in aid of the execution of punishments: for instance, if the defendant was ordered to pay a fine he might be kept in prison till the fine was paid, or if he was sentenced to be put in a pillory on several specified[***20] days he would be kept in prison for that purpose.  In Tudor times, however, imprisonment came to be used as a punishment both by the Court of Star Chamber, and under statutory provisions by other courts.  For instance, the statute 5 Eliz. 1, c. 9, ss. 4 and 6, provided for persons convicted of procuring or committing perjury being punished by imprisonment for six months and by other penalties. At a later stage the courts were imposing imprisonment as a punishment, and were doing so by virtue of assumed common law power without statutory provision. There is no authority to support the contention on behalf of the appellant that the common law power to impose imprisonment as a punishment was limited to a maximum of two years or by any other fixed term.  There is authority to the contrary, showing that the length of the term of imprisonment was at large and in the discretion of the court.

   2 App.Cas. at 217.
 
The House of Lords, after referring to a number of authorities and precedents, concluded that the sentence of imprisonment was proper and in accordance with the early common law. As Judge Lowe once said for the Court of Special [*341]Appeals, "[w]hile we are not[***21] bound by current opinions of the House of Lords, its view of what comprised the elements of its common law prior to 1776 is hard to gainsay."£ Pope v. State, 38 Md.App. 520, 530, 382 A.2d 880 (1978).

   We conclude that our predecessors have made no attempt to modify the common law by adding a form of punishment, but rather have correctly and consistently interpreted the common law to include the sanction of imprisonment as an allowable punishment for the crimes of assault and battery.

   Petitioner's alternative contention, that imprisonment must in any event be limited to two years, is equally without merit.  As noted above, a similar contention was made in Verrier v. Director of Public Prosecutions, supra, and was there rejected.  2 App.Cas. at 220-21. The House of Lords acknowledged that during the second half of the nineteenth century and the first half of the twentieth century there had grown up a general practice in England of limiting imprisonment to not more than two years, but explained that practice by the fact that the separate punishment of "penal servitude" was generally considered appropriate for a longer term of incarceration.  As the House of Lords pointed out, [***22] that practice did not affect the right of the courts to give longer sentences of imprisonment for common law misdemeanors. We have no history of a similar practice in this country, and we would not be bound by a change in the common law of England occurring after 1776.  Petitioner's final argument, that the action of the Legislature establishing a penalty of not less than two nor more than ten years imprisonment for certain aggravated assaults, ch. 138 of the 1809 Laws of Maryland, somehow fixes a limit of two years for simple assault and battery, also is unavailing.  We held in Gleaton v. State, supra, 235 Md. at 277, 201 A.2d 353, that the enactment of aggravated assault statutes could not be construed as expressing a legislative intent to limit sentences for simple assaults.

   JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED.  COSTS TO BE PAID BY PETITIONER. 

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Charles ClintonPARSONS & William Reback 
Misc. (Subtitle BV) Nos. 34, 35, September Term, 1986
 
Court of Appeals of Maryland
 
310 Md. 132; 527 A.2d 325; 1987 Md. LEXIS 250

 July  2, 1987

   PRIOR HISTORY: [***1]  
Appeal from Circuit Court for  Anne Arundel  County, Bruce C. Williams, Judge.

DISPOSITION: IT IS SO ORDERED; RESPONDENTS SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING THE COSTS OF ALL TRANSCRIPTS PURSUANT TO MARYLAND RULE BV15 c. FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST CHARLES C. PARSONS AND WILLIAM REBACK.

CORE TERMS:  misconduct, disciplinary, divorce, suspension, signature, recommendation, discipline, conclusions of law, notarized, neglect, sanction imposed, uttering, commence, forgery, Disciplinary Rules, deliberate falsification, panel opinion, oral argument, prosecuting, reciprocal, recommend, misdeeds, Domestic Relations Rule, Disciplinary Rule, appropriate sanction, disciplinary action, judicial tribunal, expressed remorse, notary, disbarment

COUNSEL: Melvin Hirshman, Bar Counsel and Walter D. Murphy, Jr., Assistant Bar Counsel for the Attorney Grievance Commission of Maryland, for petitioner.

   Charles Clinton Parsons, Washington, District of Columbia, for respondent.

JUDGES: Murphy, C.J., Eldridge, Cole, Rodowsky, McAuliffe and Adkins, JJ., and James F. Couch, Jr., Associate Judge of the Court of Appeals of Maryland (retired), Specially Assigned.

OPINIONBY: COUCH

OPINION: [*133] [**325] The Attorney Grievance Commission, acting through Bar Counsel, filed petitions for disciplinary action against [*134] Charles C. Parsons and William Reback, n1 alleging violation of Disciplinary Rules 1-102(A)(4), (5), [**326] and (6), n2 6-101(A)(3), n3 and 7-102(A)(5). n4£ We referred the matter, pursuant to Maryland Rule BV 9 b, to Judge Bruce C. Williams of the Circuit[***2] Court for Anne Arundel County to make findings of fact and conclusions of law. After conducting a hearing, Judge Williams made the following findings with respect to each petition:
 
"FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
   "This case grew out of the final en banc Opinion and Order of the District of Columbia Court of Appeals in the case of In Re: William Reback and Charles C. Parsons, case number 83-1289 in the District of Columbia Court of Appeals issued on July 31, 1986.  [See In re Reback, 513 A.2d 226 (D.C.1986) (en banc)].  By that Opinion and Order, Mr. Reback and Mr. Parsons were suspended from the practice of law for six (6) months, effective August 30, 1986.  This case is now before this Court on reciprocal discipline.

   [*135] "Maryland Rule BV10(e)(1) states, in pertinent part:

   '. . . A final adjudication in a disciplinary proceeding by a judicial tribunal or a disciplinary agency appointed by or acting at the direction of a judicial tribunal that an attorney has been guilty of misconduct is conclusive proof of the misconduct in the hearing of charges pursuant to this Rule.'
 
See Attorney Grievance Commission v. James, 300 Md. 297, [***3] 477 A.2d 1185 (1984), Attorney Grievance Commission v. Thorup, 300 Md. 189, 477 A.2d 754 (1984), Attorney Grievance Commission v. Rosen, 301 Md. 37, 481 A.2d 799 (1984), and Attorney Grievance Commission v. Moore, 301 Md. 169, 482 A.2d 497 (1984).

   "The adjudication of misconduct in these cases by the District of Columbia Court of Appeals is final, the Respondent[s] having chosen not to file a Petition for Writ of Certiorari to the Supreme Court of the United States.

   "In late May, 1980, Mrs. Rosemary Lewis, met with William Reback concerning her domestic case.  Within a matter of days, thereafter, she retained the firm of Reback and Parsons to pursue her claim for divorce and agreed to pay a $500 fee for their legal services plus certain estimated costs.  Although Mr. Reback was the only attorney in that firm to whom Mrs. Lewis ever spoke, Charles C. Parsons, Esquire, took responsibility for the case.  On June 9, 1980 Mrs. Lewis signed and verified her complaint for divorce. Charles C. Parsons, Esquire, then signed and filed that complaint for divorce in the Superior Court for the District of Columbia on June 12, 1980 and a summons was issued, directed to the defendant[***4] in that action.  The summons was not served and neither Mr. Parsons nor Mr. Reback took any further action in that case.

   "On November 12, 1980, the Superior Court for the District of Columbia issued a warning notice pursuant to Superior Court Domestic Relations Rule 41(f) which provides that a case that is not at issue within six (6) months after its filing date shall be dismissed after notice to the [*136] attorneys.  Apparently, as a result of a defect in the firm's case-handling procedures, neither Mr. Reback nor Mr. Parsons saw that notice.  The case was then dismissed without their knowledge on December 17, 1980.

   "In March, 1981, Mr. Reback received a telephone call from Mrs. Lewis' brother, a [**327] Mr. Jordan, inquiring about the status of his sister's case.  Mr. Reback and Mr. Parsons then learned that the case had been dismissed, when they looked at their office file.  Neither Mr. Reback nor Mr. Parsons told Mrs. Lewis or her brother of the dismissal at that time.  Instead, they prepared a second complaint, identical in substance to the first complaint.

   "The second complaint purported to be verified by Mrs. Lewis.  Instead of obtaining Mrs. Lewis' signature, however, [***5] Mr. Reback signed Mrs. Lewis' name to the complaint in the presence of Mr. Parsons.  One of the two lawyers, or a secretary acting at their direction, then had the complaint notarized. Whoever took the complaint to the Notary necessarily represented that the signature was genuine.  Mr. Parsons filed the complaint in Court on March 27, 1981, knowing that the signature of Mrs. Lewis was false.

   "Mr. Reback and Mr. Parsons then assigned the case to an associate, Dana Dembro.  They told the associate to come to them if he had questions.  Other than giving him that instruction, they did not supervise him.  He had trouble obtaining the required proofs of publication of notice to Lewis' husband.  After another warning from the Court pursuant to Superior Court Domestic Relations Rule 41(f) issued on August 28, 1981, the case was dismissed pursuant to that rule on September 30, 1981.  On October 9, 1981, Mr. Dembrow filed a Motion to Reinstate the case which was granted on October 13, 1981.

   "In March, 1982, Mrs. Lewis discovered that the first complaint had been dismissed and a second one filed over her falsified signature. Mrs. Lewis then asked Mr. Reback and Mr. Parsons to withdraw as[***6] her attorneys, [*137]which they did.  They returned to her all fees which she had paid them.  Mrs. Lewis proceeded in the second case with new counsel and a divorce was ultimately granted in that proceeding on October 21, 1982.

   "In approximately August, 1982, Petitions instituting formal disciplinary proceedings in the District of Columbia were filed against Mr. Parsons and Mr. Reback.  A hearing was held on those Petitions on November 24, 1982 before the three member Hearing Committee Number 4 of the Board on Professional Responsibility for the District of Columbia Bar (D.C. Bar Docket Nos. 370-81 and 68-82).  Mr. Reback and Mr. Parsons were present at that hearing, represented by counsel, testified and cooperated fully.  They expressed remorse for their actions."£ As to Parsons, the trial court concluded:

   "CONCLUSIONS OF LAW

   "1. By his neglect of both of Mrs. Lewis' cases, [Parsons] violated Disciplinary Rule 1-102(A)(5) and 6-101 (A)(3).

   "2. By knowingly causing Mrs. Lewis' false signature on the second complaint for divorce, to be notarized and filing that complaint in the Superior Court for the District of Columbia, without the consent or knowledge of Mrs. Lewis, [Parsons] [***7] violated Disciplinary Rules 1-102(A)(4)(5) and 7-102(A)(5)."
 
As to Reback, Judge Williams concluded:

   "CONCLUSIONS OF LAW

   "1. By his neglect of both of Mrs. Lewis' cases, [Reback] violated Disciplinary Rule 1-102(A)(5) and 6-101(A)(3).

   "2. As a result of his falsifying Mrs. Lewis' signature on the second complaint for divorce, causing it to be notarized and filed in the Superior Court for the District of Columbia, without the consent or knowledge of Mrs. [*138]Lewis, [Reback] violated Disciplinary Rules 1-102(A)(4)(5) and 7-102(A)(5)."

n1 We shall collectively refer to Charles C. Parsons and William Reback as "respondents."£ Parsons and Reback are partners in the law firm of Reback & Parsons.

n2 "DR 1-102 Misconduct.

   (A) A lawyer shall not:

   . . .
 
(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. 
 
(5) Engage in conduct that is prejudicial to the administration of justice.
 
(6) Engage in any other conduct that adversely reflects on his fitness to practice law."
n3 "DR 6-101 Failing to Act Competently.

   (A) A lawyer shall not:

   . . .
 
(3) Neglect a legal matter entrusted to him."
[***8] 

n4 "DR 7-102 Representing a Client Within the Bounds of the Law.

   (A) In his representation of a client, a lawyer shall not:

   . . .
 
(5) Knowingly make a false statement of law or fact."

   The respondents have not excepted to any of Judge Williams's findings of fact or conclusions of law and we adopt them.  Attorney Grievance Commission v. Maxwell, 307 Md. 600, 516 A.2d 570 (1986). The only issue before us is the discipline to be imposed.  Relying on the sanction imposed in the District of Columbia, Bar Counsel recommends a six month suspension. Opposing this recommendation, the respondents contend that they were denied due process of law in the District of Columbia disciplinary proceedings, and therefore [**328]this Court should reject as "fatally flawed" the sanction imposed in that jurisdiction.  They recommend a sanction no greater than censure. n5

n5 Respondents do not contend they were denied due process in the disciplinary proceedings in this State.

[***9]

   Relying on In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968), respondents contend that "they suffered imposition of a severe six-month suspension [in the District of Columbia] based upon the Board [on Professional Responsibility's] and the Court [of Appeals's] conclusion that Respondents' misconduct was tantamount to criminal forgery and uttering, a criminal charge with which they were never confronted in the Petition [Instituting Formal Disciplinary Proceedings] against them nor before the Hearing Committee." n6£ According to respondents, had they been [*139] notified in the Petition or before the Committee that the criminal charges would form the basis of their sanctions, "they could have demonstrated at the Hearing Committee by way of defense that the criminal allegations must fail because: 1) there was no 'specific intent to injure' their client; and 2) their client 'ratified' the second complaint they filed on her behalf by using it to obtain her divorce."

n6 In the District of Columbia, the Office of Bar Counsel has the responsibility for investigating and prosecuting complaints against attorneys of that jurisdiction.  D.C. Bar Rule XI, §§ 4(3)(b), 6 & 7.  Unless an allegation of misconduct has no apparent merit, Bar Counsel institutes formal disciplinary proceedings and prosecutes the case initially before a three-member Hearing Committee appointed by the Board on Professional Responsibility ("Board").  Id. at §§ 4(3), 5, 6(1)(d) & 7(1) -- (2).  Before the Hearing Committee, the attorney is entitled to be represented by counsel, to cross-examine witnesses, and to present evidence on his own behalf.  Id. at § 7(2).  Within sixty days of the hearing's conclusion, the Hearing Committee submits a report to the Board containing its findings and recommendation of a sanction, together with the full record of the proceedings.  Id.£ The Board is empowered, normally after hearing argument, to affirm or modify the recommendation of the Hearing Committee, to remand the matter for further proceedings, or dismiss the petition.  Id. at § 7(3).  Unless the petition is remanded or dismissed, or the matter is concluded by reprimand, the Board must promptly submit its findings and recommendation, together with the entire record, to the District of Columbia Court of Appeals. Id.£ That court hears arguments, if requested by respondent, and enters a final order, including a sanction, in the matter.  Id.£ It is the policy of the District of Columbia Court of Appeals to accept the Board's recommendation unless it would foster a tendency toward inconsistent dispositions for comparable conduct, or would otherwise be unwarranted.  Id.  See In re Williams, 513 A.2d 793 (D.C.1986).

[***10]

   In Ruffalo, the Supreme Court overturned the decision of a federal appellate court to disbar Ruffalo, without a de novo hearing, from practicing before that court.  The appellate decision was based upon an earlier order of disbarment from the Ohio Supreme Court following proof of Ruffalo's professional misconduct. In the Supreme Court, Ruffalo argued that this finding of misconduct was not based upon the original charges brought in the state court, but was based upon an additional charge later added by amendment as a result of his testimony during the hearing on the initial disbarment charges.  Sustaining this contention, the Supreme Court ruled that:
 
"even though the attorney was granted a continuance in order to have time to prepare a response to the new charge, he was, nevertheless, deprived of procedural due process since the added charge arose from testimony, both his own and that of another witness, given at the hearing on the charges as initially filed, and thus procedurally there was an 'absence of fair notice as to the reach of the grievance procedure and the precise nature of the charges.'"
 
[*140] Bar Association of Baltimore City v. Cockrell[***11] , 274 Md. 279, 285, 334 A.2d 85, 88 (1975) (quoting Ruffalo, 390 U.S. at 552, 88 S.Ct. at 1226, 20 L.Ed.2d 117). n7

n7 A key passage from Ruffalo states:
 
"The charge must be known before the proceedings commence. They become a trap when, after they are underway, the charges are amended on the basis of testimony of the accused.  He can then be given no opportunity to expunge the earlier statements and start afresh."
 
Ruffalo, 390 U.S. at 551, 88 S.Ct. at 1226, 20 L.Ed.2d 117.

   After Ruffalo, it is clear that an attorney against whom a complaint has [**329]been filed must receive notice of the charges against him at the time disciplinary proceedings commence. See Attorney Grievance Commission v. Hyatt, 302 Md. 683, 688, 490 A.2d 1224, 1226 (1985); Attorney Grievance Commission v. McBurney, 282 Md. 116, 124 n. 1, 383 A.2d 58, 63 n. 1 (1978); Attorney Grievance Commission v. Walman, 280 Md. 453, 463-64, 374 A.2d 354, 361-62 (1977); Cockrell , 274 Md. at 285-87, 334[***12] A.2d at 88-9. In Maryland, the notice requirement is satisfied by the filing of a Petition for Disciplinary Action in this Court.  Hyatt, 302 Md. at 688, 490 A.2d at 1226; McBurney, 282 Md. at 124 n. 1, 383 A.2d at 63 n. 1. Likewise, in the District of Columbia, the attorney receives proper notice of the charges when Bar Counsel files a Petition Instituting Formal Disciplinary Proceedings with the Board on Professional Responsibility.  See In re Colson, 412 A.2d 1160 (D.C.1979); In re Smith, 403 A.2d 296 (D.C.1979). See also D.C. Bar Rule XI, § 7(2).

    On the facts of this case, we conclude that the respondents' due process claim clearly lacks merit.  Initially, we reject the respondents' contention that the decision to suspend them for six months in the District of Columbia was based, in whole or in part, upon the conclusion that their misconduct amounted to criminal forgery and uttering. In its en banc opinion in this case, the District of Columbia Court of Appeals explicitly refused to consider as an aggravating [*141] factor the possibility that the respondents' misconduct could result in criminal convictions.  The Court stated:

   "Turning next to[***13] aggravation, we see no factor here that would suggest a sanction heavier than that which the violations themselves would otherwise call for.  We note in this connection that there was discussion at oral argument and in the majority and dissenting opinions at division, 487 A.2d at 242 and 244, of the possibility that respondents may have committed the criminal offenses of forgery and uttering. D.C.Code § 22-1401 (1981).  In our view, that mere possibility is not a significant factor under the circumstances of this case.  The prosecuting authority never charged respondents with those offenses.  The disciplinary hearings were not conducted with a view to determining whether respondents committed them.  Respondents did not admit guilt of those offenses; to the contrary, if respondents were charged it would be necessary to resolve serious issues, including especially the matter of criminal intent.

   . . .
 
"There are so many permutations of the relationship of possible criminal violations to bar discipline that generalizations are of little use.  Instead, as we said in [In re] Smith [403 A.2d 296 (D.C.1979)] of sanctions generally, 'each case must be reviewed upon its own terms.'£ [***14] Smith, 403 A.2d at 303. For the reasons stated above, the possibility that there was criminal conduct is not significant here."
 
In re Reback, 513 A.2d at 233. n8£ Stated succinctly, since the respondents' "likely criminality" played no part in the fashioning of a disciplinary sanction, there was no need to notify them of possible criminal charges in the Petition Instituting [*142] Formal Disciplinary Proceedings or before the Hearing Committee proceedings commenced.

n8 To the extent the panel opinion of the District of Columbia Court of Appeals suggested otherwise, it has been vacated and thus retains no continuing vitality.  See In re Reback, 492 A.2d 267 (D.C.1985), vacating 487 A.2d 235 (D.C.1985) (original panel opinion).

   Moreover, the Petitions Instituting Formal Disciplinary Proceedings, and the Specification of Charges attached thereto, adequately spelled out the nature of the charges against the respondents.  Indeed, they conceded during oral argument before this Court that[***15] they knew at the outset of the proceedings in the District of Columbia the specific acts of misconduct for which they were being disciplined.  Unlike Ruffalo, there were no surprises in this case. Accordingly, we conclude the due process safeguards enunciated in Ruffalo have been met in this case.

   [**330] 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 facts and circumstances of each case, but with a view toward consistent dispositions for similar misconduct.

   We find our recent decision in Attorney Grievance Commission v. Maxwell, 307 Md. 600, 516 A.2d 570 (1986) to be persuasive on this issue.  In Maxwell, we imposed a 90-day suspension on an attorney for his "deliberate falsification of [a] notary certificate, and his knowing attestation of a false signature on a deed as genuine."£ Id. at 604, 516 A.2d at 572. Although we took cognizance of Maxwell's prior good record and his remorse, as well as the lack of actual harm resulting from his misdeeds, we refused to condone the "deliberate[***16] falsification of a solemn document by an experienced attorney."£ Id. at 605, 516 A.2d at 572.

   The factors that led us to impose a 90-day suspension in Maxwell guide our disposition in this case.  Respondents have admitted their wrongdoing since the outset of these proceedings and, like Maxwell, have expressed remorse for their actions.  Moreover, there is nothing in this record suggesting that the respondents have maintained anything but an unblemished record of service for the years prior to these proceedings.  Yet, we are mindful of the serious [*143]transgression that occurred in this case -- falsely signing a client's name to the divorce complaint and having it notarized and filed with the court -- conduct very similar to the misdeeds we condemned in Maxwell.  As we said there, "[t]hat this action was done to assist a client . . ., other than for the lawyer's personal gain, does not exempt Maxwell from discipline."£ Id. at 605, 516 A.2d at 572. We also must take into account the respondents' neglect of their client's cases, which ultimately led to the more serious misconduct in this case.

   Giving careful consideration to the facts and circumstances of this [***17]case, we conclude that in order to protect the public from misconduct of this sort, a 90-day suspension is the appropriate sanction for Parsons and Reback.  Their suspension shall commence 30 days from the date of the filing of the opinion in this case.  Prior to termination of the suspension, they shall pay all costs of the disciplinary proceedings.

   IT IS SO ORDERED; RESPONDENTS SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING THE COSTS OF ALL TRANSCRIPTS PURSUANT TO MARYLAND RULE BV15 c. FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST CHARLES C. PARSONS AND WILLIAM REBACK. 

Stanley R. WEIMER v. Jody Ann HETRICK et al. 
No. 99, September Term, 1986
 
Court of Appeals of Maryland
 
309 Md. 536; 525 A.2d 643; 1987 Md. LEXIS 233

 May  28, 1987

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals, Circuit Court for  Anne Arundel  County, Judge Raymond G. Thieme.

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED.  CASE REMANDED TO THAT COURT WITH DIRECTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY.  APPELLEES TO PAY THE COSTS.

CORE TERMS:  baby, chance of survival, burden of proof, survival, patient, proximate cause, substantial possibility, wrongful death, doctor, medical malpractice, pediatrician, eclampsia, causation, survived, decedent, skill, new tort, preponderance, duty, anoxia, fetal, personal representative, directed verdict, wrongful act, rule of law, diagnosis, placenta, delivery, infant, negligent conduct

COUNSEL: David R. Thompson (Roy B. Cowdrey, Jr. and Franch, Earnest & Cowdrey, P.A., on the brief), all of Easton, Maryland, for appellant.

   John F. King, Jeanette A. Plante, and Anderson, Coe & King, all of Baltimore, Maryland, on the brief, for amicus curiae filed by the Medical and Chirurgical Faculty of State of Maryland.

   E. Fremont Magee, H. Mark Stichel and Piper & Marbury, all of Baltimore, Maryland, on the brief, for amicus curiae filed by Chesapeake Physicians, P.A.

   Donald L. DeVries, Jr., J. Mitchell Lambros and Semmes, Bowen & Semmes, all of Baltimore, Maryland, on the brief for amicus curiae filed by Franklin Square Hospital, Greater Baltimore Medical Center, Inc., South Baltimore General Hospital, Dorchester General Hospital, University of Maryland Medical Systems Corp., Maryland Society for Healthcare Risk Management and R.I.S.C., Inc.

   Henry E. Dugan, Jr. (Gilbert[***2] H. Robinette and Robinette, Dugan, Seiden & Jakubowski, P.A., on the brief), all of Baltimore, Maryland, for appellees.

JUDGES: Cole, Rodowsky, Couch and McAuliffe, JJ., Marvin H. Smith and Charles E. Orth, Jr., Associate Judges of the Court of Appeals of Maryland (retired), Specially Assigned and W. Albert Menchine, Associate Judge of the Court of Special Appeals (retired), Specially Assigned.  McAuliffe, Judge, concurring.

OPINIONBY: MENCHINE

OPINION: [*538] [**644] Appellees, Jody Ann Hetrick and Michael Cary Hetrick, filed a malpractice claim, pursuant to the Health Care Malpractice Claims Act (Courts and Judicial Proceedings Article, Subtitle 2A, 1984 Repl.Vol.) with the Health Claims Arbitration Office, in August 1982, alleging that Appellant, Dr. Stanley R. Weimer; Dr. Thomas R. Moeser; Dr. John S. Harris; n1 St. Agnes Hospital; n2 and the Anne Arundel Hospital were negligent in the care and treatment of Jason [*539] Michael Hetrick, their son, who was delivered by caesarean section but who died hours after birth.

n1 Drs. Moeser and Harris were obstetricians attending the mother during pregnancy.  The settled claims against them contended that they had misdiagnosed as cholecystitis the life-threatening condition known as eclampsia.

   Eclampsia is a condition of uncertain etiology, occurring during some pregnancies, that compromises the placenta, through which the blood of the mother passes to and through the body of the fetus and returns through it to the blood stream of the mother for purification.  The condition is life-threatening to mother and child.

[***3] 

n2 St. Agnes Hospital was not joined as a party defendant in the circuit court.

   The Health Claims Arbitration panel found no liability on the part of the Health Care Providers against whom the claim was litigated, but found liability on the part of Dr. Moeser, although he had settled the claim against him prior to hearing.  Appellees rejected the panel decision pursuant to the judicial review provisions of the Act (Cts. & Jud.Proc.Art. § 3-2A-06) and filed suit in the Circuit Court for Anne Arundel County against Dr. Weimer, Dr. Harris and Anne Arundel General Hospital.  Dr. Harris settled with Appellees prior to trial in the Circuit Court for Anne Arundel County.  Motion for directed verdict as to Anne Arundel General Hospital was granted at the end of evidence offered by the plaintiffs.  The case then proceeded against Dr. Weimer alone, going to the jury under Counts I and III.

   The mother had been admitted to Anne Arundel County Hospital on the service of Dr. Thomas Moeser on September 2, 1978 with a diagnosis of "severe gastroenteritis versus cholecystitus."£ Her condition worsened and on[***4] September 9, 1978 she underwent exploratory laparotomy.  It was noted that the gall bladder was completely [**645] normal but she had a great deal of edema of the liver and it was felt that she was a very early severe pre-eclamptic. The incision was closed without cholecystectomy being done.  A very stormy course followed the exploratory operation.  Within twelve hours, it was felt that the severe pre-eclampsia could not be controlled and that termination of the pregnancy was necessary.  The mother agreed to delivery by caesarian section, knowing that the 32-week gestation infant might have only a poor chance of survival. A 3 lb., 6 oz. boy was delivered by the operative procedure performed by Drs. Moeser and Harris.  Dr. Weimer occupied no role in either operative procedure but received the infant in the operating room after the delivery at 6:43 p.m.

   Dr. Kenneth L. Harkavy, a physician and neonatologist, testified that Dr. Weimer's medical services for the infant were not in keeping with the required standard of care: (1) inadequate resuscitative efforts; (2) improper use and dosage [*540] of bicarbonate; (3) premature removal of the umbilical venous line that was the[***5] only route for administration of medicines and nourishment -- removal should not have occurred prior to starting an I.V.; (4) flushing the umbilical venous line with an excessive concentration of Heparen; (5) failure to observe the baby's progressive fatigue from his trying to keep his lungs expanded; (6) failure to monitor blood sugar of the infant. Dr. Harkavy conceded that many of the symptoms shown by history in the hospital record on original admission were classic findings for eclampsia. He concluded, however,

   "Given the condition of the baby at birth, are you able to say with reasonable medical probability whether this baby would have survived if the resuscitation had not been inadequate?"

   Answer: "I can tell you that at the birth weight and with an Apgar of two that that baby's survival chances would still be considered good.  In fact, the likelihood of survival still that we're talking about is 80 to 90%.  Perhaps somewhat pre -- slightly prejudiced from the average survival rate but not significant."

   The conclusion expressed after autopsy was as follows:

   "The cause of intrauterine anoxia in this case is uncertain when the clinical events are examined.  Some[***6] authors have indicated that during eclampsia, blood flow to the placenta is decreased which would, of course, lead to a decreased oxygen supply to the fetus.  Over a long period of time, toxemia may lead to growth retardation and decreased fetal size.  Another possibility in this case is that anoxia to the fetus occurred at the time of surgery from anesthesia administration.  Of course, the mother underwent both cholecystectomy and caesarean section presenting two periods during which intrauterine anoxia might have occurred.  There is no history supportive for the other main causes of fetal anoxia as abruptio placenta, placenta previa, maternal shock, placental infarct, or cord interruption.  Thus, it would seem most probable that a combination of eclampsia plus general anesthesia led to fetal anoxia and the pathologic changes observed.  [*541] Although fetal mortality in the presence of eclampsia has greatly improved, it still remains a substantial cause of fetal death.  This is frequently secondary to the necessity of premature delivery in these mothers."

   Dr. Judith Gieske, a pediatrician, after tracing the course of the baby's life from delivery to death, concluded that[***7] Dr. Weimer met the standard expected of him and did nothing that caused or contributed to the baby's death.

   In Count I, Jody Ann Hetrick had sued as personal representative of the estate of Jason Michael Hetrick, deceased, pursuant to the provisions of Annotated Code of Maryland, Courts and Judicial Proceedings Article, Subtitle 4 Practice, in General, § 6-401(a) Survival of Actions n3 (1984 Repl.Vol.) and Estates and Trusts Article, Subtitle [**646] 4 Powers of Personal Representative § 7-401(x) General Powers (1974). n4

n3 Cts. & Jud.Proc.Code Ann., § 6-401, Survival of actions, in part here pertinent, reads as follows: "(a) At law -- A cause of action at law, whether real, personal, or mixed, except slander, survives the death of either party."

n4 Est. & Trusts Code Ann., § 7-401, General Powers, in part here pertinent, reads: "(x) Prosecute or defend litigation. -- He may prosecute, defend, or submit to arbitration actions, claims, or proceedings in any appropriate jurisdiction for the protection or benefit of the estate, including the commencement of a personal action which the decedent might have commenced or prosecuted. . . ."

[***8]

   In Count III, Jody Ann Hetrick and Michael Cary Hetrick, mother and father, respectively, of Jason Michael Hetrick, deceased, had sued pursuant to the provisions of Courts and Judicial Proceedings Article, Subtitle 9 Wrongful death § 3-902(a) and § 3-904. n5£ The jury returned verdicts in favor of the defendant, Dr. Weimer, under both counts.

n5 Section 3-902(a) Liability notwithstanding death reads as follows: "(a) Action against person causing death of another. -- An action may be maintained against a person whose wrongful act caused the death of another."

   Section 3-904(a) Action for wrongful death reads as follows: "(a) Primary Beneficiaries. -- An action under this subtitle shall be for the benefit of the wife, husband, parent, and child of the deceased person."

   The Appellees appealed to the Court of Special Appeals.  That court, not distinguishing between the respective rights [*542] of the litigants under Count I and under Count III, affirmed in part and reversed in part.  ([***9] Hetrick v. Weimer, 67 Md.App. 522, 508 A.2d 522 (1986)), holding that the trial court erred in instructing the jury that the plaintiff was required to prove by a preponderance of the evidence that death of the decedent was caused by the negligence of the defendant.  The court remanded the case for a new trial.  In the decision below, the court said:
 
"Thus, the instruction that the plaintiffs had to prove, by a preponderance of the evidence, that the physician's negligence was the primary or most probable cause of the patient's death imposed an improper burden upon them.  The theory of appellants' case was not that Dr. Weimer caused their son's death; it was that Dr. Weimer's failure to do what was reasonable, proper, necessary and appropriate to resuscitate Jason deprived the child of a substantial possibility of survival" (footnote omitted).
 
67 Md.App. at 541, 508 A.2d at 531.

   The trial court's charge on negligence and causation was as follows:
 
"To hold Dr. Weimer liable, the plaintiffs have to show that his conduct was clearly not recognizable as medically acceptable.  And no pediatrician is chargeable with the results of his efforts if he has applied[***10] the degree of skill ordinarily required to be expected of a pediatrician in the performance of the services required.  And you have to keep in mind the circumstances as they existed at the time of the treatment and the nature and complexity of the medical problems facing the pediatrician at that time.  If you find that Dr. Weimer, under those circumstances as they then existed rather than by hindsight, exercised that reasonable degree of care and skill, then you must find in favor of the doctor.

   Now plaintiffs need only prove the most likely cause of the baby's death in addition to everything else that I've said.  The plaintiffs are not required to negate or exclude every other possible cause.  However, if there are two or more causes, either of which could have resulted in the baby's death, one of which for which the pediatrician is [*543] responsible, and the others for which he is not, then the plaintiffs have to prove by evidence more likely so than not that the acts for which the pediatrician is responsible in fact caused the baby's death.  Now there I've used that phrase by evidence more likely so than not.

   Take the example in this case, and it is strictly an example, [***11] and I don't mean to infer that these are the facts.  Again, I'm only doing this to clarify what I've just said.  You have to decide what the facts are.  But if you should find that Dr. Weimer was responsible for the lack of oxygen and that was 50% of the cause of the death and if you feel that the prematurity was 50% of the cause of death, then that's the standoff again.  We got two causes of action.  There are two possible causes of death that are both equal.  If that's the case, the plaintiff hasn't done what the law requires and you must find in favor of the doctor. The plaintiff has to show that the act for [**647] which the doctor is responsible for is better than 50%, 51%.  That's better."

   The exception to that part of the court's charge was as follows:

   "Your Honor, in the instructions you failed to give the, or at least I didn't hear it, the instruction on Thomas v. Corso to the effect that all that the plaintiff need prove is that the actions of Dr. Weimer took away a substantial possibility that this baby would have survived with appropriate resuscitation. And, thirdly, Your Honor, I object to giving the instruction that Mr. Cowdrey asked for that said that[***12] and with your example where you said 50% prematurity, 50% lack of appropriate resuscitation, I don't think that that is the burden that's upon the plaintiff.  I think all that the burden -- all that the plaintiff need prove is that failure to properly resuscitate took away a substantial possibility that this child would have survived. So in this specific case, as in Thomas v. Corso, even though we have offered evidence as to probability, we need only prove substantial possibility which was less than 50%. Thank you, Your Honor."

   [*544] The intermediate court had grounded its holding upon language used by the late Judge Sobeloff in Hicks v. United States, 368 F.2d 626, 632 (4th Cir.1966) that had been quoted by Judge Barnes in our decision in Thomas v. Corso, 265 Md. 84, 102, 288 A.2d 379, 389-90 (1972).

   "When a defendant's negligent action or inaction has effectively terminated a person's chance of survival, it does not lie in the defendant's mouth to raise conjectures as to the measure of the chances that he has put beyond the possibility of realization.  If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable. [***13] Rarely is it possible to demonstrate to an absolute certainty what would have happened in circumstances that the wrongdoer did not allow to come to pass.  The law does not in the existing circumstances require the plaintiff to show to a certainty that the patient would have lived had she been hospitalized and operated on promptly."

   We granted certiorari to consider the question of public importance.

   I

   The Appeal as it Relates to Count I

   (Survivorship action by the personal representative under Cts. & Jud.Proc.Art. § 6-401 and Est. & Trusts Art. § 7-401(x))

   No contention was made in the circuit court that recovery of damages for the loss of a substantial chance of survival was permissible under that count of the declaration.  The record shows that while the taking of testimony in the circuit court was suspended awaiting arrival of a witness, the trial judge and plaintiffs' counsel discussed the court's instructions to be given in the survivorship action.  The following colloquy appears in the record:
"COURT: What damage do you have for the Estate?
MS. JAKUBOWSKI: Pain --
MR. DUGAN: Pain and suffering --
MS. JAKUBOWSKI: Pain and suffering of the baby.
 
[***14] [*545] COURT: Oh, as to the individual but as to other than the child itself, there's no evidence of any medical expenses --
MR. DUGAN: Right.  I didn't put any bills in or any of that.
MS. JAKUBOWSKI: Right.
COURT: All right, so there's no misunderstanding as to that.
MR. DUGAN: It's just pain and suffering.
COURT: As to the child.

   MR. DUGAN: As to the child."
 
   Pursuant to that discussion, the court in its charge to the jury, said:
 
"One [verdict] is for the Estate.  Now that is Mrs. Hetrick, the mother, but she's not here as the mother in this first claim.  She's here as representative of the Estate.  In other words, she's standing in the baby's shoes, so to speak. It [**648] could be anyone.  The personal representative is what she's commonly referred to.  She happens to be the mother.  But this first dollar award is to compensate for the conscious pain and suffering of the baby. Just like anyone that may have been injured in an automobile accident.  We happen to be dealing with a death here so, obviously, we don't have the party in front of us.  That is where the personal representative, which happens to be Mrs. Hetrick, comes in.  So we're talking about[***15] the conscious pain and suffering of the baby. Not the mother.  Not the father.  Only the baby and for whatever period of time it may have survived."

   No exception was taken to the charge as given by the court under Count I. Accordingly, the question whether Maryland recognizes the loss of a substantial chance of survival as a measure of damages or as a separate tort was not raised or decided under this count of the declaration.  [*546] We shall not consider the question under that Count. n6£ Md. Rule 885.

n6 Plaintiffs' decision not to seek recovery for loss of a substantial possibility of survival under Count I may have been produced by our decision in Rhone v. Fisher, 224 Md. 223, 167 A.2d 773 (1961). In any case, no such issue was raised below under that count in the circuit court.

   II

   The Appeal as it Relates to Count III

   (Action for wrongful death under Cts. & Jud.Proc.Art. §§ 3-902(a) and 3-904(a))

   (a)

   Burden of proof under such actions

   The general rule in negligence cases is thus[***16] stated in Prosser & Keeton on Torts, § 38, at 239 (5th ed. 1984):
 
"The burden of proof of the defendant's negligence is quite uniformly upon the plaintiff, since he is asking the court for relief, and must lose if his case does not outweigh that of the defendant's" (footnote omitted).
 
In 2 S.M. Speiser, Recovery for Wrongful Death § 12.1, at 288 (2d ed. 1975), it is said:
 
 "The rule that the person who pleads the existence of a fact has the burden of proving such fact is applicable to wrongful death actions, and thus the statutory plaintiff has the same burden of proof that the decedent would have had if he had lived" (footnote omitted).
 
In F.B. Tiffany, Death by Wrongful Act § 189, at 426 (2d ed. 1913), the author also makes clear that this rule of law has application to cases involving negligence causing death:
 
"As in other actions, the burden of proof is upon the plaintiff to establish his case, including the fact that the death was caused by the wrongful act or neglect of the defendant, by a preponderance of evidence" (footnote omitted).

   [*547] In 30 Am.Jur.2d Evidence § 1121, at 288-89, the rule is thus stated: [***17] 
 
"The evidence must not leave the causal connection a matter of conjecture; it must be something more than consistent with plaintiff's theory as to how the accident occurred.  Where the proof of causal connection is equally balanced, or the facts are as consistent with one theory as with another, plaintiff has not met the burden which the law casts upon him.  If the evidence shows that an injury may have resulted from one of several causes, but only one of the causes can be attributed to the defendant's negligence, the plaintiff must fail" (footnotes omitted).

   That Maryland courts long have recognized and applied this rule of law is beyond cavil.  In Brady v. Consol Gas Co., 85 Md. 637, 641, 37 A. 263 (1897), it was said:
 
"All the cases agree that to constitute a good cause of action, there should be stated and proved a right on the part of the plaintiff, and a duty on the part of the defendant in respect to that right, and a breach of that duty by the defendant, whereby the alleged injury was produced.  Between the negligence and the injury there must be the relation of cause and effect.  Maenner v. Carroll, 46 Md. 212; W.U. Tel. Co. v. State, [***18]  use of Nelson, 82 Md. 310; Holly v. Boston Gas Light Company, 8 Gray, 123; Trainor's case, 33 Md. 554, 33 A. 763.
. . . .

   [**649] Having these well-established legal principles in view, we now proceed to a consideration of the facts in proof, bearing in mind that the onus is on the plaintiff to show affirmatively all the elements of the right to recover.  It was necessary for the plaintiff in this case to prove (1) the death of Miss Brady; (2), the negligence of the defendant, and (3), that such negligence was the cause of Miss Brady's death" (emphasis in the original).
 
85 Md. at 641-42, 37 A. at 264.

   The applicability of the above Maryland rule to cases of negligence causing death grounded upon medical malpractice [*548] is equally well settled.  In State, Use of Janney v. Housekeeper, 70 Md. 162, 16 A. 382 (1889), we said:

   "It was the duty of the professional men to exercise ordinary care and skill, and this being a duty imposed by law, it will be presumed that the operation was carefully and skillfully performed in the absence of proof to the contrary. As all persons are presumed to have duly performed any duty imposed on them, negligence[***19] cannot be presumed, but must be affirmatively proved. Best on Presump. 68; R.R. Co. v. Chappell, 21 Fla. 175.

   This principle is especially applicable in suits against physicians and surgeons for injuries sustained by reason of alleged unskillful and careless treatment.  The burden of proof is on the plaintiff to show a want of proper knowledge and skill. Leighton v. Sargent, 31 N.H. 119; Baird v. Morford, 29 Ia. 531.

   The court below committed no error in determining that it was incumbent on the plaintiff to prove affirmatively that the operation was performed without the consent of the patient, and also that her death was caused by unskillful and careless treatment of the physicians.  Nor did the court commit any error in granting the defendants' second prayer, which enunciates the proposition that if death was caused by tubercular meningitis or other disease not produced by the operation, the defendants are not liable."
 
70 Md. at 171, 16 A. at 384.

   The continuing applicability of the rule imposing the burden of proof upon the plaintiff in medical malpractice cases, is shown by Johns Hopkins Hospital v. Genda, 255 Md. 616, 621-22, 258 A.2d 595, 598-99 (1969).[***20] 

   "The Court in Housekeeper also approved the following prayer submitted by the defendant:

   'That the degree of care and skill to be exercised by physicians and surgeons in the performance of an operation is not the highest degree of care and skill known to the profession but that reasonable degree of care and skill which physicians and surgeons ordinarily exercise in the treatment of their patients; and the burden of [*549] proof is on the plaintiffs in this case to establish by preponderating evidence a want of such ordinary care and skill in the performance of the operation and attendance upon the said Matilda C. Janney' (emphasis supplied). . . .
 
See also State, Use of Solomon v. Fishel, 228 Md. 189, 203, 179 A.2d 349 (1962); State, Use of Shockey v. Washington Sanitarium, 223 Md. 554, 558, 165 A.2d 764 (1960); Bettigole v. Diener, 210 Md. 537, 124 A.2d 265 (1956); State, Use of Kalives v. Baltimore etc. Hospital, 177 Md. 517, 526, 10 A.2d 612 (1940); Fink v. Steele, 166 Md. 354, 171 A. 49 (1934); Angulo v. Hallar, 137 Md. 227, 232, 233, 112 A. 179 (1920); Miller v. Leib, 109 Md. 414, 426, 72 A. 466 (1909); Dashiell v. Griffith[***21] , 84 Md. 363, 380-81, 35 A. 1094 (1896). See also Riley v. U.S., 248 F.Supp. 95, 97 (D.Md.1965).

   In Kalives, supra, this Court stated:

   'Before the equitable plaintiffs can recover against any of the defendants, it must be shown by affirmative evidence that they were either unskilled or negligent in their respective capacities, and that such want of skill or care resulted in the death of Mr. Kalives.  If either of the above elements is lacking in the proof, [**650] then no case for the consideration of the jury has been presented. . . .'"

    The rule of law governing the burden of proof in medical malpractice cases was reiterated in Pierce v. Johns-Manville Sales Corp., 296 Md. 656, 464 A.2d 1020 (1983). In that case, involving survival and wrongful death actions, the late Judge Davidson, speaking for this Court, said:
 
"In Maryland, recovery of damages based on future consequences of an injury may be had only if such consequences are reasonably probable or reasonably certain. Such damages cannot be recovered if future consequences are 'mere possibilities.'£ Probability exists when there is more evidence in favor of a proposition than against it (a greater[***22] than 50% chance that a future consequence will occur).  Mere possibility exists when the [*550] evidence is anything less.  Davidson v. Miller, 276 Md. 54, 62, 344 A.2d 422, 427-28 (1975)."
 
296 Md. at 666, 464 A.2d at 1026.

   We see no deviation from these rules of law in either the Hicks or the Thomas decisions.  The basic issues for decision in both Hicks and Thomas, supra, were identical and were similarly stated by the distinguished judges who authored the opinions in the respective courts.

   In Hicks, supra, Judge Sobeloff, after his review of the record below, upon the issue of the negligence of the defendant said:

   "On careful scrutiny, therefore, the government's expert is seen to have demonstrated that the examiner did not conform to the required standard of care. Coupled with the explicit testimony of the plaintiff's experts, the government's testimony leads us inevitably to the conclusion that the doctor was negligent as a matter of law" (emphasis added).
 
368 F.2d at 631-32.

   On the question whether the evidence at trial established that "[the doctor's] concededly erroneous diagnosis and treatment was the proximate [***23]cause of her death," Judge Sobeloff said:

   "The government further contends that even if negligence is established, there was no proof that the erroneous diagnosis and treatment was the proximate cause of the death, asserting that even if surgery had been performed immediately, it is mere speculation to say that it would have been successful. The government's contention, however, is unsupported by the record.  Both of plaintiff's experts testified categorically that if operated on promptly, Mrs. Greitens would have survived, and this is nowhere contradicted by the government expert" (emphasis added).
 
368 F.2d at 632.

   He added,

   [*551] "In sum, the dispensary physician's negligence in failing to make a thorough examination and in omitting standard diagnostic tests, led to an erroneous diagnosis. Because of this, he sent the patient home with instructions not to return for eight hours, rather than immediately admitting her to a hospital.  Since the uncontradicted testimony was that with prompt surgery she would have survived, the conclusion follows that the dispensary doctor's negligence nullified whatever chance of recovery she might have had and was the [***24]  proximate cause of the death" (emphasis added).
 
368 F.2d at 633.

   Similarly, in Thomas, supra, Judge Barnes, after noting that "we must resolve all conflicts in the evidence in favor of the plaintiffs and give them the benefit of all reasonable inferences to be derived from the evidence favorable to them," 265 Md. at 100, 288 A.2d at 389, examined the evidence on the record then before this Court and said:

   "From what we have already stated, the jury could have reasonably concluded that under the circumstances of this case that if Dr. Thomas had performed his duty to attend Corso personally shortly after he was telephoned at 11:30 p.m., Dr. Thomas might well have been able to have saved his life and that this negligent conduct was one of the direct and proximate causes of Corso's death, concurrent [**651] with the negligence of the nurses."
 
265 Md. at 103, 288 A.2d at 390.

   In short, the Court in Hicks found that the record showed that negligence had been proven as a matter of law and that uncontradicted evidence showed that such negligence was the proximate cause of the death; this Court in Thomas found that the record showed evidence legally sufficient[***25] to establish negligence that was a proximate cause of the death.

   The appellees take comfort in our decision in State v. Fabritz, 276 Md. 416, 348 A.2d 275 (1975) wherein Chief Judge Murphy spoke for this Court on the principles of [*552] multiple contributing causes in death cases.  The reliance would be apt if the appellees had succeeded in obtaining a favorable jury verdict.  Under the instructions given by the trial court, such a contention not only was permissible, the argument actually was made by plaintiffs' counsel but was rejected by the jury.  Appellees manifestly have misread our decision in Thomas, supra. They state in their brief at page 27:

   "Obviously, if a judge grants a directed verdict, as occurred in Thomas v. Corso, the case does not even get to the jury -- so any time the Plaintiff has not produced sufficient evidence (met the burden of proof) as a matter of law, there are no jury instructions.

   All that Thomas v. Corso said in the plainest (and consequently the most beautiful language possible) was that the judge applied the wrong burden of proof in granting the directed verdict."

   Such was not the status of Thomas v. Corso at the[***26] appeal to this Court.  The trial judge in Thomas (with one exception not pertinent to that appeal) correctly, we held, denied the defendants' motion for a directed verdict. The jury rendered a verdict in favor of the plaintiffs.  Our decision in Thomas v. Corso required us to determine "whether the trial court erred in declining to grant motions for directed verdicts and for judgments n.o.v. in favor of [the appealing defendants]."£ Id. [265 Md.] at 86, 288 A.2d at 382. We concluded that it did not err.

    We decline to accept appellees' suggestion that such careful and analytical jurists as Judges Sobeloff and Barnes intended the quoted language in Hicks, supra, to alter, without discussion, the rule of law governing the burden of proof so anciently formed and so uniformly applied in wrongful death cases under the Maryland statute.

   Indeed, the circuit court for the Fourth Circuit itself has rejected such interpretation of those words.  In Clark v. United States, 402 F.2d 950 (4th Cir.1968) that court said: "Certainly Hicks laid down no new rule of law with respect [*553] to either negligence or proximate cause. . . ."£ Id. at 953 n. 4. That[***27] same court in Waffen v. U.S. Dept. of Health & Human Services, 799 F.2d 911, 915 (4th Cir.1986) said:
 
"The general principles which ordinarily govern in negligence cases also apply to medical malpractice claims under Maryland law.  A prima facie case of medical malpractice must consist of evidence which (1) establishes the applicable standard of care, (2) demonstrates that this standard has been violated, and (3) develops a causal relationship between the violation and the harm complained of. Fitzgerald v. Manning, 679 F.2d 341, 346 (4th Cir.1982). As in any other case founded upon negligent conduct, the burden of proof in a medical malpractice claim rests upon the plaintiff.  Shilkret v. Annapolis Emergency Hospital Ass'n, 276 Md. 187, 349 A.2d 245, 247 (1975); Paige v. Manuzak, 57 Md.App. 621, 471 A.2d 758, 766-67 (1984)." n7

n7 It is true that the court in Waffen, citing the decision below by the Court of Special Appeals (67 Md.App. 522, 508 A.2d 522 (1986)), ordering retrial of the subject case, declared, "[W]e make explicit that under the law of this circuit, and in particular of the State of Maryland, the loss of a substantial chance of survival is a cognizable harm."£ Waffen, supra, 799 F.2d at 917. For reasons to be stated infra, we do not reach the question whether the loss of a substantial chance of survival is a cognizable harm in this State.  We do say, however, that this Court did not in Thomas, supra, give recognition to such a doctrine either as a new tort or as a new element of damages.  We have never recognized such a legal principle.

[***28]

   [**652] (b)

   The Court's Charge on Causation

   We perceive no new ground having been plowed by Hicks or Thomas, both supra. Judge Sobeloff's philosophical paragraph in Hicks, quoted supra and cited in Thomas, created neither a new tort nor an additional basis for determination of damages in an existing tort.  Whether it will prove to be an augury of a burgeoning new tort or introduce a new factor for consideration of damages in tort cases producing injury or death are issues for another day [*554] in another cause.  We do not reach those issues.  This is so because it is crystal clear that determination of such questions is impermissible in an action for wrongful death under the Maryland statute.

   The Maryland statute is in derogation of the common law and as such, should be strictly construed.  McKeon v. State, Use of Conrad, 211 Md. 437, 443, 127 A.2d 635, 638 (1956) and cases cited therein.  In plain, unambiguous language, the statute provided a cause of action unknown to the common law for the benefit of described beneficiaries "against a person whose wrongful act caused the death of another" (emphasis added).  In such circumstances, [***29] there is no room for judicial interpretation.  Trimper v. Porter-Hayden, 305 Md. 31, 36, 501 A.2d 446, 449 (1985).

   The commencement date for the determination of damages allowable to primary beneficiaries under the statute (both pecuniary and for solatium) is the date of the death of their decedent.  No damages for injuries and losses sustained by their decedent prior to his death are provided for in the statute.

   The enlargement of the statute requested by the appellees for recognition of a new tort or for consideration of a new measure of damages "cannot be accomplished in the guise of statutory construction."£ Trimper v. Porter-Hayden, supra, 305 Md. at 36, 501 A.2d at 449. The respective charge to the jury in Thomas, supra, and in the subject case, while couched in different words, both recognize the legal principle that a plaintiff beneficiary in an action under the wrongful death statute must show by a preponderance of the evidence that the conduct of a defendant was negligent and that such negligence was a proximate cause of the death of the decedent. n8

n8 Court's charge in Thomas v. Corso, supra:

   "[I]f you find by a preponderance of the evidence that the doctor's conduct was a violation of the duty of care owed to the patient, you must determine, again by a preponderance of the evidence, whether this failure to attend personally to the patient has been shown to a reasonable medical probability or certainty to have caused Mr. Corso's death or to have been a substantial factor in bringing about death.  In a word, you must decide whether it was more likely so than not so that the attendance of a physician would have led to disclosure of Mr. Corso's condition in a way different from that which appeared to the nurse at the time and would have led to remedial measures, with reasonable medical certainty, that would have prevented the patient from falling into the condition of shock which was the ultimate cause of death."£ (Records and Briefs to Thomas Corso, No. 201 Sept. Term, 1971, pp. 475-76 (emphasis added).  As Judge Barnes pointed out in Thomas:£ "[T]his negligent conduct was one of the direct and proximate causes of Corso's death, concurrent with the negligence of the nurses."£ 265 Md. at 103, 288 A.2d at 390.

[***30]

   [*555] There was no error in the trial court's charge to the jury.  The judgment of the Court of Special Appeals is reversed.

   JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED.  CASE REMANDED TO THAT COURT WITH DIRECTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY.  APPELLEES TO PAY THE COSTS.

CONCURBY: McAULIFFE

CONCUR: McAULIFFE, Judge, concurring.

   I agree that under the particular circumstances of this case the trial judge did not err in refusing to instruct the jury on the theory of loss of a substantial chance of survival. A claim for damages for loss of a substantial possibility of survival is inherently inconsistent with the element of proof of causation of death that is required for [**653] the successful maintenance of a wrongful death action. n1£ [*556] Additionally, as the majority points out, neither the allegation nor the proof supported a claim for loss of a substantial chance of survival in Count I (the survivorship action).

n1 This is not to be confused with the question of causation that may arise when two or more tortfeasors combine to produce a condition that more probably than not resulted in death.  The negligence of a number of people may combine to produce such a condition, and each will be liable if his or her negligence was a proximate cause of the condition.  Here, however, we are concerned with identifying the condition that caused death, and not with the number of people who contributed to the occurrence of that condition.  If, for example, the actions of the preceding physicians left the child with less than a fifty percent chance of survival, it could not be said that negligence on the part of the subsequent treating physician was a cause of death.  The most that could be said in that situation is that the negligence of the subsequent treating physician deprived the patient of a chance of survival, and that claim cannot be made in a wrongful death action.

[***31]

   I write separately because I am concerned that the majority suggests that we have rejected the concept of a claim for loss of a substantial chance of survival when in fact we hold only that the issue is not presented by this case. 

   I can agree with much of the dictum in the majority opinion -- that our earlier cases have not modified the ordinary requirements of burden of proof and causation to accommodate the theory of loss of a substantial chance of survival. As I view it, however, a claim under that theory does not involve the creation of a new tort, but rather involves a redefinition of damages involved in the claim.  Traditional principles of law relating to duty, breach, causation, and burden of proof remain the same -- what changes is the acceptance of the concept that damages may be recovered for the loss of a chance of survival where that chance is substantial and can be identified and quantified (and thus valued) without resort to conjecture or speculation.  I am unwilling to say that neither Hicks v. United States, 368 F.2d 626 (4th Cir.1966), nor Thomas v. Corso, 265 Md. 84, 288 A.2d 379 (1972) suggests a favorable inclination toward a claim for damages resulting[***32] from the loss of a substantial chance of survival. Our holding today is simply that these interesting questions must await resolution on another day. 

Donald E. LAMB v. John R. HAMMOND et al. 
No. 133 September Term, 1986
 
Court of Appeals of Maryland
 
308 Md. 286; 518 A.2d 1057; 1987 Md. LEXIS 163

 January  7, 1987

   PRIOR HISTORY: [***1]  
Appeal from Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals, Bruce C. Williams, Judge.

DISPOSITION: JUDGMENT OF CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED; JUDGMENT HEREBY ENTERED DIRECTING BOARD OF STATE CANVASSERS TO CERTIFY ELECTION RESULTS FOR HOUSE OF DELEGATES FROM DISTRICT 30, ANNE ARUNDEL COUNTY, IN ACCORDANCE WITH THIS OPINION; APPELLEE TO PAY THE COSTS; MANDATE TO ISSUE FORTHWITH.

CORE TERMS:  election, ballot, voter, mailed, house of delegates, qualification, candidate, canvass, canvassers, postmark, verification, contest, voting, envelope, absentee, postal service, delegate, prescribed, winner, prerogative, election board, mandatory, deadline, counted, opened, tally, cast, polls, election district, election laws

COUNSEL: M. Albert Figinski (Franklin Goldstein, Stuart R. Berger and Melnicove, Kaufman, Weiner, Smouse & Garbis, P.A., on the memorandum), Baltimore, for appellant.

   Diana G. Motz (Frank, Bernstein, Conaway & Goldman, on the memorandum), Baltimore, for appellee.

JUDGES: Murphy, C.J., and Cole, Couch, McAuliffe and Adkins, JJ. and Richard P. Gilbert, Chief Judge of the Court of Special Appeals and Alan M. Wilner, Associate Judge of the Court of Special Appeals, Specially Assigned.

OPINIONBY: WILNER

OPINION: [*289] [**1058] A number of descriptive terms might be used to characterize the race between John R. Hammond and Donald E. Lamb for a seat in the House of Delegates, but "landslide" would surely not be one of them.  As the case reaches this Court, Mr. [***2] Hammond appears to be the winner over Mr. Lamb by exactly one vote.  That hair-thin margin of victory was realized, however, only after the Circuit Court for Anne Arundel County, on a complaint filed by Mr. Hammond, directed the county board of canvassers to count 12 absentee ballots that the board had initially rejected.
 
   Understandably aggrieved by the court's decision, in light of its effect, Mr. Lamb noted an appeal.  We granted certiorari prior to any proceedings in the Court of Special Appeals to consider the important and delicate public issues raised in the case.

   I. THE FACTS

   Under the Constitution and laws of Maryland, the registered voters of District 30 in Anne Arundel County are entitled to elect three delegates to the House of Delegates. The law generally requires that voting take place at authorized polling stations in the district but permits certain persons -- those qualified voters who may be absent from the county on election day or who, by reason of physical disability or confinement, are unable to appear at the proper polling station -- to cast their votes by absentee ballot. Md. Code Ann. art. 33, §§ 27-1, 27-2.

   At the close of voting in the general election[***3] of November 4, 1986, the tallies from the voting machines showed that, of [*290] the six candidates running for the House of Delegates from District 30, the top four were: [**1059] 

John C. Astle                          15,825
Michael Busch                          13,475
Donald E. Lamb                         12,553
John R. Hammond                        12,420

 

   Two days later, the election board began its canvass of the absentee ballots. Of the ballots so counted for District 30, Mr. Lamb received 345 votes and Mr. Hammond received 475.  When those figures were added to the totals from the voting machines, Mr. Lamb remained in third place (and thus entitled to one of the three seats) by three votes -- 12,898 to Mr. Hammond's 12,895.

   Learning that the board had received but declined to count 24 additional absentee ballots, Mr. Hammond filed this action in Circuit Court, contending that the board's refusal to consider those ballots was unlawful and seeking declaratory and injunctive relief.  Twelve of the ballots, it appeared, had not even been opened by the board; they were rejected because the board concluded, based on the time that the ballots were received and the postmark on the respective envelopes, that they were not timely under the requirements[***4] of Md. Code Ann. art. 33, § 27-9(c) or (d).  The other 12 had been opened but rejected by reason of other deficiencies.

   Over Mr. Lamb's objection, the court opened the 12 thitherto unopened envelopes and observed, in each instance, that the voter had signed an affidavit that the ballot had been "completed and mailed no later than the day before election."£ On that basis, the court found those ballots to be timely and ordered the board to include them in its canvass. The board's rejection of the other 12 ballots was affirmed.

   Mr. Hammond must have received eight of the 12 additional votes, for he emerged, to the consternation of Mr. Lamb, as the apparent winner, 12,903 to 12,902.  Mr. Hammond presumably accepts the court's decision as to the [*291]other 12 ballots, for no cross-appeal has been noted.  We are concerned here only with the 12 ballots that the court directed the board to canvass.

   Mr. Lamb argues first, as he did below, that, by reason of Md. Decl. of Rts., art. 8, providing for the separation of legislative, executive, and judicial powers, and Md. Const., art. III, § 19, making the House of Delegates the judge of the qualifications and elections of its members, [***5] the House of Delegates is the only body competent to resolve this controversy and that the courts have no "jurisdiction" in the matter.  Any decision this Court might render, he urges, would be merely advisory to the House of Delegates and thus non-judicial in nature.  On the merits of the question, he contends that the Circuit Court erred in directing the board to include the 12 disputed ballots.

   II. JURISDICTION -- JUSTICIABILITY

   A. Introduction

   Jurisdiction in this case was asserted under Md. Code Ann. art. 33, § 27-10, which is part of subtitle 27 of the election code dealing with absentee voting. Subsections (a) and (c) of § 27-10 provide, respectively, that contests "concerning . . . the validity of any ballot under this subtitle shall be decided by the board [of canvassers] having jurisdiction of the matter" and that "[a]ny candidate or absentee voter aggrieved by any decision or action of such board shall have the right of appeal to the circuit court for the county to review such decision or action, and jurisdiction to hear and determine such appeals is hereby conferred upon said courts."£ (Emphasis added.)£ As § 27-3 of art. 33 declares subtitle 27 applicable[***6] to "elections for all candidates . . . at any election held in any year," other than certain municipal elections, it is apparent that § 27-10 was intended to apply as well to elections for all such candidates. That includes, of course, elections for delegates to the House of Delegates.

   The argument advanced by Mr. Lamb is that the jurisdiction "allegedly conferred" on the Circuit Court by § 27-10, [*292] or presumably by any other law, was "in derogation" of art. III, § 19 of the State Constitution and art. 8 of the Md. Decl. of Rts., and is therefore nugatory.  The thesis, in other [**1060] words, is not that the court has sought to aggrandize to itself or to usurp on its own any right or power committed exclusively to the legislative branch, but rather that the legislative branch was not competent to confer on the courts the jurisdiction it so plainly and unambiguously purported to confer.

   B. Articulation Of The Issue

   Although when dealing with provisions such as art. 8 or art. III, § 19 courts, including this Court, have often spoken in terms of their "jurisdiction," the issue is not really one of jurisdiction in the traditional sense of that concept, but[***7] more one of justiciability.  The circuit courts have long been vested with a limited jurisdiction to review the actions of administrative officials, including election officials, to determine whether those officials have exceeded the authority delegated to them, and, if so, to direct that they act in conformance with the law.  See, for example, Hammond v. Love, 187 Md. 138, 144, 49 A.2d 75 (1946), where we observed:
  
"In Hecht v. Crook, supra, 184 Md. [271], 280, 281, 40 A.2d [673], 677, this Court, by Judge Henderson, said: 'Courts have the inherent power, through the writ of mandamus, by injunction, or otherwise, to correct abuses of discretion and arbitrary, illegal, capricious or unreasonable acts; but in exercising that power care must be taken not to interfere with the legislative prerogative, or with the exercise of sound administrative discretion, where discretion is clearly conferred.'£ The election laws do not purport to make conclusive any decisions of supervisors misconstruing the law or their own powers.  Decisions contrary to law or unsupported by substantial evidence are not within the exercise of sound administrative discretion and of the[***8] legislative prerogative, but are arbitrary and illegal acts."
 
[*293] (Emphasis added.)£ See also Mahoney v. Sup. of Elections, 205 Md. 325, 336, 108 A.2d 143 (1954); Criminal Inj. Comp. Bd. v. Gould, 273 Md. 486, 500-01, 331 A.2d 55 (1975); and cf. McNulty v. Board of Elections, 245 Md. 1, 8, 224 A.2d 844 (1966).

   The issue raised by both art. 8 and art. III, § 19 is one of separation of powers, and, as Chief Justice Warren pointed out for the Supreme Court in Powell v. McCormack, 395 U.S. 486, 512, 89 S.Ct. 1944, 1959, 23 L.Ed.2d 491 (1969), "the doctrine of separation of powers is more properly considered in determining whether the case is 'justiciable.'"£ By that is meant, first, "whether the claim presented and the relief sought are of the type which admit of judicial resolution," and, second, whether the structure of the government (in this instance, the State government) "renders the issue presented a 'political question' -- that is, a question which is not justiciable in [State] court because of the separation of powers provided by the Constitution."£ Id., 516-17, 89 S.Ct. 1961-62.

   In judging the first element, according to Chief Justice[***9] Warren's analysis, the court must determine "whether 'the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded.'"£ Id., 517, 89 S.Ct. 1961, quoting from Baker v. Carr, 369 U.S. 186, 198, 82 S.Ct. 691, 700, 7 L.Ed.2d 663 (1962). The second element, again taken from Baker v. Carr, involves whether there is
 
"'a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment [*294] from multifarious pronouncements by various departments on one question.'"
 
Id., 395 U.S. 518-19, 89 S.Ct. 1962-63.

   That, we think, is the proper framework within which to consider[***10] the Constitutional issue.

   [**1061] C. Constitutional History

    Art. III, § 19 has its roots in the House of Commons.  A version of it was included in the first (1776) Constitution of Maryland and in the initial Constitutions of several of the other original States. n1£ It is worth noting, historically, that, despite the provision for separation of powers in the accompanying Declaration of Rights, the government created by the 1776 Maryland Constitution was, in many respects, a parliamentary one.  Only the House of Delegates was popularly elected.  The Senate was elected indirectly by electors; the Governor was chosen, for a one-year term, by joint ballot of the two Houses, and he could not continue in office more than three successive years.  The Governor had no veto power over legislation but was directed to sign bills enacted by the Legislature, and he was able to exercise the few Executive powers given him only with the advice and consent of a Council of five people, who were also chosen by the Legislature.  Thus it was that this Court, in 1829, was impelled to conclude that "[t]he legislative department is nearest to the source of power, and is manifestly the predominant[***11] branch of the government."£ Crane v. Meginnis, 1 G. & J. 463, 472, 19 Am.Dec. 237 (1829).

n1 See Md. Const. (1776), §§ 9, 17, and 21; see also Conn. Const. (1776), § 6; Del. Const. (1776), art. 5; N.Y. Const. (1777), art. X; N.C. Const. (1776), art. X; Pa. Const. (1776), § 9.  The historical antecedents and development of provisions such as art. III, § 19 are well described in M. Clarke, Parliamentary Privilege In The American Colonies, pp. 133-72 (1971); and I J. Story, Commentaries on the Constitution of the United States § 833 (1873).  See also C. Warren, The Making of the Constitution, pp. 419-26 (1937).

   It is certainly consistent with that structure of government and the evident fear of encroachment, so recently experienced, upon the independence of the Legislature for [*295] the 1776 Constitution to have contained the unqualified statements "[t]hat the house of delegates shall judge of the elections and qualifications of delegates" (§ 9) and "[t]hat the Senate shall [***12]judge of the elections and qualifications of senators" (§ 21).

   By 1851, although still insistent that the Legislature remain a strong and independent branch of government, the people had become less enamored with its being the "predominant" branch.  The Constitution had been amended in 1837 to abolish the five-member Council and provide for the direct popular election of the Governor, and in the 1850-51 Convention a number of significant restrictions were placed on the Legislature's powers and prerogatives. n2£ Perhaps in keeping with that sentiment, the Convention also qualified the erstwhile unfettered power of the legislative houses to judge the elections and qualifications of their members.  Art. III, § 12 of that Constitution provided that "[e]ach House shall be judge of the qualifications and elections of its members, subject to the laws of the State" (emphasis added), and art. X, § 6 authorized the Legislature "to regulate by law all matters which relate to the judges, time, place, and manner of holding elections in this State, and of making returns thereof."

 n2 See Md. Const. (1851), art. III, §§ 17, 20, 21, 22, 23, 31, 37, 45, and 47.

[***13]

   The Convention debates and proceedings shed little light on the ultimate source of this qualifying language, although it is clear that the qualification was not a mere afterthought.  The initial proposal by the Committee on the Legislative Department was that each House "shall be judge of the qualifications, elections and returns of its members, but a contested election shall be determined in such manner as shall be directed by law."£ Proceedings of the Maryland Constitutional Convention (1850), p. 219 (emphasis added).  During consideration of the Committee Report, Delegate Dorsey (who, coincidentally, was the incumbent Chief Judge of this Court) successfully moved to [*296] amend the proposal to provide that a contested election "shall be determined by the House in which such contests may arise in such manner as shall be directed by law."£ Id., p. 298 (emphasis added).

   [**1062] Both the Dorsey language and the authority to judge the "returns" of their members were ultimately stripped out of the provision, although there is no clear indication in either the proceedings or the debates as to how, when, or why that was done.  It appears to have been done by [***14]the Committee on Revision, which, like many style committees, often indulges in substance; but, however it was done, the Constitution emerged, with the approval of the Convention, without that language.

   The final language in art. III, § 12 of the 1851 Constitution was carried over intact in the 1864 Constitution.  See Md. Const. (1864), art. III, § 18. In 1867, without recorded debate, the qualifying language was again retained, though in somewhat modified form.  It read then, as it reads now, that "[e]ach House shall be judge of the qualifications and elections of its members, as prescribed by the Constitution and Laws of the State . . . ."£ (Emphasis added.) 

   The qualifying language and deletion of the power to judge the "returns" obviously was intended to have some meaning.  The qualifying language was not in the 1776 Constitution, and it is not in the Federal counterpart (U.S. Const., art. I, § 5, cl. 1).  It must be read in conjunction with other parts of the Constitution, including art. I, § 2, requiring the General Assembly to enact laws for the registration of voters; art. I, § 7, directing it to pass laws "necessary for the preservation of the purity of Elections"; [***15] art. I, § 8, requiring it to "make provisions for all cases of contested elections of any of the officers, not herein provided for"; and art. I, § 3, authorizing it
 
"to provide by suitable enactment for voting by qualified voters of the State of Maryland who are absent at the time of any election in which they are entitled to vote and for voting by other qualified voters who are unable to vote personally and for the manner in which and the time [*297] and place at which such absent voters may vote, and for the canvass and return of their votes." n3

 n3 Language similar to art. I, §§ 2, 7, and 8 was in the original 1867 Constitution.  See Md. Const. (1867), art. I, § 5; art. III, §§ 42, 47, and 49. The precursor of art. I, § 3 was adopted in 1918 to provide for qualified voters who were absent due to military service.

   Clearly, the framers had in mind that the Legislature would enact laws governing all phases of the conduct of elections, including elections for Senate and House of Delegates, [***16] and, in distinction to the then-current Federal view, n4 they determined that any exercise of the prerogatives accorded the respective Houses by art. III, § 19 be "as prescribed" by the Constitution and those laws.  It is evident, then, that, although the ultimate power to judge the elections and qualifications of its members continues to reside in the Senate and House of Delegates, respectively, the exercise of that power is, to some extent, constrained by law.  The implication of that will become apparent as we consider our earlier pronouncements in this sensitive area.

n4 In 1798, Congress enacted a law governing the taking of evidence in cases of contested Congressional elections. Act of Jan. 23, 1798, ch. 8.  That law was amended in 1851 to prescribe specific time limits for giving notices, issuing subpoenas for witnesses, and completing the inquiry.  Act of Feb. 19, 1851, ch. 11.  In 1857, a contest arose out of the election in the 4th Congressional district of Maryland.  Henry P. Brooks, the loser, claimed that the election of November, 1857 was flawed by fraud, intimidation, and violence.  In his "memorial" to the House, Brooks asserted that the public authorities in Baltimore were implicated and that, if the disclosures and notices required by the 1851 law were given, witnesses would be intimidated and the inquiry would not be completed within the time limited.  The Committee on Elections concluded that the House, exercising a Constitutional authority, was not bound by the law, but that, in that case, it ought to follow the law.  The full House agreed that it was not bound by the law, but, siding with the Committee, decided not to depart from it in that instance.  See 1 A. Hind's Precedents of the House of Representatives, § 833, p. 1084 (1907); see also H.R.Rep. No. 105, 35th Cong., 1st Sess.

[***17]

   D. Maryland Precedent

   Our first immersion into this troubling eddy was in Covington v. Buffett, 90 Md. 569, 45 A. 204 (1900). Mr. [*298] Covington brought a mandamus action, alleging that [**1063] the incumbent State Senator for Talbot County, who had been elected for a four-year term in 1897, had accepted a Federal office and left the county, that he had thereupon become disqualified as a State Senator, that a vacancy therefore existed in that office, that Covington had been nominated by the Democratic party for the office, and that the county election board had refused to place his name on the ballot in the general election of 1899.  The Circuit Court denied the writ and we affirmed.

   We concluded that, under the "qualifications" provision of art. III, § 19, the only tribunal competent to determine whether a vacancy existed was the Maryland Senate and that, unless a vacancy existed, no election could be held for the purpose of choosing a successor.  Thus, our ultimate conclusion, expressed at 579, 45 A. 204, was that "[t]he Courts are without jurisdiction to compel the appellees to place the name of the appellant on the official ballot, until the tribunal having[***18] the exclusive authority under the Constitution to decide whether a vacancy exists passes upon that question." n5

n5 Our predecessors may have been aware that the Maryland Senate had indeed exercised its prerogative to decide the qualifications of its members on at least one occasion.  In 1865, upon petition by the losing candidate in the November, 1864 election for State Senator for Howard County, the Senate concluded that the winning candidate, Littleton Maclin, was disqualified under art. I, § 4 of the 1864 Constitution because he had publicly expressed sympathy for the Confederate cause.  It therefore determined that the petitioner, Hart B. Holton, was duly elected and entitled to the seat.  See Md. Senate, Report of the Committee on Elections, Holton v. Maclin, Document E (1865).

   We confirmed that view in Bowling v. Weakley, 181 Md. 496, 30 A.2d 791 (1943), which raised an almost identical question.

   The next two cases to reach this Court after Covington v. Buffett involved an issue closer[***19] in point to that now before us.  In Price v. Ashburn, 122 Md. 514, 89 A. 410 (1914), a candidate for State Senate from Worcester County sought mandamus to compel the county board of canvassers to [*299] canvass certain votes from the 8th Election District of that county.  Although the returns and tally sheets from that district were sent to the board in accordance with the election laws, two of the judges and one of the clerks refused to sign them, stating, in a separate document, their belief that there was "illegal voting."£ In the absence of the three signatures, the board refused to canvass the votes.  The Circuit Court issued the writ and we affirmed.

   We concluded that the election judges and the clerk had acted in accordance with the law in making their return to the board and that their refusal to sign the return and tally sheets did not invalidate those documents.  We declared further, at 524, 89 A. 410: "It has been repeatedly held, that the duties of canvassing officers are purely ministerial and under the facts of this case, the canvassers could only canvass and declare the result as shown by the returns."

   Continuing at 525, 89 A. 410, we said:

   "Every sound[***20] principle of legal construction, we think, requires us to hold that the canvassing board in this case, had no sufficient reason to justify them in refusing to canvass, and to reject the returns as made, and as was done in this case.  Any other construction would lead to endless contests and controversies.  It would open the door and put in the power of the judges of election to throw out the returns from any election district, defeat the will of the majority and secure the certificate of election for a candidate who had not received a majority of the votes in the county.  The Legislature never could have intended to confer such a power as this upon the judges and clerks of an election."

   We recognized that the issue before us was a narrow one of compelling ministerial officials to do their job and act in conformance with the law.  The canvassers were simply to count the votes duly returned to them and not make judgments as to whether there was illegal voting. Those judgments, we acknowledged, were committed to the State Senate:

   [*300] [**1064] "The Senate of Maryland, itself, under section 19, Article 3, of the Constitution, is the tribunal which has the sole power [***21]to decide and judge of the qualifications of its members, to the exclusion of every other tribunal.  It is made the final and exclusive judge of all questions whether of law or of fact respecting such election returns or qualifications, so far or as they are involved in the determination of the right of any person to be a member thereof.  We express no opinion, and disclaim all intention to investigate the question of the title to the office of senator in this case.  Covington v. Buffett, 90 Md. 578 [45 A. 204]."
 
Id., 525, 89 A. 410. n6

n6 There was indeed precedent for such determinations being made by the State legislative bodies.  In 1819, the House of Delegates became embroiled in a bitterly contested election for delegates from Calvert County.  The issue was whether there had been illegal voting, and, according to the premier chronicler of the General Assembly, the controversy "ran through virtually the entire session, with an amazing variety of legal technicalities, parliamentary maneuvers, dilatory motions, and delaying tactics of all kinds."£ C. Everstine, The General Assembly of Maryland 1776-1850, pp. 306-11 (1982).  Similar kinds of disputes, involving the validity of votes, arose during the 1830's and 1840's. See Everstine, supra, pp. 504-08.  In 1860, the House of Delegates declared the 1859 election for delegates in Baltimore City void by reason of the massive fraud and illegality that characterized that election and expelled the delegates purportedly elected.  In 1882, a contest arose over the election for House of Delegates in Anne Arundel County.  The Democratic candidates appeared to be the winners, but their opponents contested the election on the ground of fraud.  The House Committee on Elections held an extensive evidentiary hearing, lasting 11 days.  It concluded that there was indeed considerable fraud in the election, involving primarily the stuffing of ballot boxes with illegal ballots, but that, even if all the votes found to be fraudulent were discarded, the Democratic candidates would still be the winners. The House accepted the Committee Report and seated the Democratic candidates. See House Journal, pp. 1308-15, 1435-36 (1882); see also House of Delegates, Document H (1882), consisting of the testimony taken by the Committee on Elections. Similar contests also erupted in 1886 (Caroline County), 1888 (Talbot County), 1892 (Calvert County), and 1896 (Calvert County).  See C. Everstine, The General Assembly of Maryland 1850-1920, pp. 375-82 (1984).  In nearly all of the cases decided in the legislative chambers, the issue was either one of the qualifications of the apparent winner or whether the election was tainted by fraud, intimidation, or illegality.

[***22]

   Canvassers of Election v. Noll, 127 Md. 296, 96 A. 452 (1915), presented a similar issue, although it involved an [*301] election for court clerk rather than legislator and thus implicated art. IV, § 12 of the Constitution rather than art. III, § 19. n7£ The contest was between Noll and O'Malley; O'Malley was declared the winner by 47 votes.  In a mandamus action, Noll complained that the board of canvassers had improperly rejected the returns from one precinct in the 2d election district showing a 45-vote plurality for Noll, and that it had improperly counted three votes for O'Malley in the 6th election district, thereby reversing what should have been Noll's one-vote victory.  The board defended its rejection of the 2d district votes on the basis of its belief that there had been tampering with the ballot boxes; as to the 6th district, the board observed on one of the two tally sheets three marks which it concluded represented valid votes that had not been counted or certified by the election judges.

n7 Art. IV, § 12 provides that, in any contested election for judges, clerks, or registers of wills, the House of Delegates "shall judge of the election and qualification of the candidates at such election . . . ."

[***23]

   We recognized the Constitutional issue at the outset and disposed of it with this comment, at 299, 96 A. 452:
 
"A contest over an election to this office must, of course, be made, if at all, before the House of Delegates, as provided by section 12, Article 4 of the Constitution, but that does not affect the power of the Court to require the Board of Canvassers to correct errors, if any, as provided for in section 86 of Article 33 of the Code."
 
(Emphasis added.)

   On the merits of the complaint, we followed our holding in Price v. Ashburn that canvassers are ministerial officials who are [**1065] obliged to "canvass and declare the result as shown by the returns," and thus concluded they had no right or authority to reject ballots duly returned to them. [*302]127 Md. at 300-01, 96 A. 452. The condition of the ballot boxes "was, under the statute, of no more concern to the canvassers while acting in that capacity, than was the condition of any election booth which might be returned."£ The same principle applied with respect to the returns from the 6th district.  The canvassers had no authority to disregard the certificates of the election judges and[***24] count more votes than were certified, especially when the three extra marks were on only one of the two tally sheets.

   Finally, just four years ago, we touched on the issue again in Duffy v. Conaway, 295 Md. 242, 455 A.2d 955 (1983). The case arose out of the election for register of wills in Baltimore City; the loser, Duffy, sought, in effect, to disqualify the winner, Conaway, on the ground that Conaway had violated the Corrupt Practices Act.  That Act, among other remedies, authorized a court proceeding to determine whether the successful candidate had engaged in unlawful conduct.  The law made clear, however, that the court had no authority, in cases involving registers and certain other Constitutional officers, to declare the election void; the court was directed simply to transmit its findings to the State election board, which, in turn, would send them to the official or body Constitutionally empowered to decide the contest.

   We found that scheme tantamount to having the courts issue merely advisory opinions which, we concluded, represented a non-judicial function barred by the separation of powers provisions in Md. Decl. of Rts., art. 8.  In a concluding footnote at 63, [***25] 455 A.2d 955, we disclaimed any implication that the law would be constitutional "if amended to authorize a court to decide the controversy and void the election," for such a provision "might still present serious constitutional problems under provisions such as Art. IV, § 12, or Art. III, § 19, of the Maryland Constitution which vest jurisdiction in another governmental body to judge the election and qualification of candidates for certain offices."£ (Emphasis added.)

   [*303] E. Analysis

   It is evident from our earlier decisions, read in the light of the historical development of art. III, § 19, that there is a role for both the courts and the Legislature in resolving questions over the conduct of elections for seats in the General Assembly.  Those roles are complementary rather than conflicting, and if each body stays within its proper and assigned bounds there will be no transgression against separation of powers.

   The right to vote is basic.  It is guaranteed by the Federal Constitution, by the Maryland Declaration of Rights, and indeed by the very first provision in the State Constitution, art. I, § 1.  Pursuant to its Constitutional authority to pass laws for[***26] the preservation of the purity of elections and, more particularly in this case, to provide for absentee voting "and for the manner in which and the time and place at which such absent voters may vote, and for the canvass and return of their votes," Md. Const., art. I, § 3, the Legislature has created boards of canvassers, given them explicit directions how to collect and count votes, and carefully limited their authority to the performance of that function.  At least since 1896, it has authorized the courts to perform their ancient and traditional role of seeing to it, upon complaint, that these administrative officials follow those directions and remain within the bounds of their circumscribed authority. n8

n8 The earliest conferral of jurisdiction upon the courts in this area seems to have been by 1896 Md.Laws, ch. 202, which substantially revised the State election laws. Subsection 79, part of the subtitle on canvassing boards, provided that, whenever it appeared by affidavit "that errors have occurred in the determination of the board of canvassers," the Circuit Court could "require said board to correct such errors or show cause why such corrections should not be made," and, if the board refused, the court "may compel said board, by a writ of mandamus, to correct such errors."

[***27]

   [**1066] The performance of that role is fully judicial.  Harking to the analysis in Baker v. Carr, supra, 369 U.S. 186, 82 S.Ct. 691, and Powell v. McCormack, supra, 395 U.S. 486, [*304] 89 S.Ct. 1944, the duty imposed on these officials can be "judicially identified," its breach can be "judicially determined," and a protective remedy can be "judicially molded."

   We do not perceive this limited role as trampling upon "a textually demonstrable commitment of the issue to a coordinate political department" or upon the other considerations noted in Baker and Powell.  In the first place, we are not being asked to overturn any legislative determination already made, or to enjoin the House of Delegates from deciding a contest properly presented to it.  Compare Morgan v. United States, 801 F.2d 445 (D.C.Cir.1986); Barkley v. O'Neill, 624 F.Supp. 664 (S.D.Ind.1985). Moreover, art. III, § 19 itself makes clear that the power vested in the respective houses of the Legislature is not unbridled.  In judging the elections and qualifications of their members, they must act "as prescribed by the Constitution and Laws of the State."£ They are not empowered, and we[***28] hardly think that as reasonable bodies they would ever suggest the power, to act arbitrarily or capriciously, to disenfranchise people who are legally entitled to vote and who have cast their ballots in full compliance with the law, or, conversely, to credit votes that are patently unlawful.  That would not be as prescribed by law.  Cf. Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966).

   It is evident then, that upon a timely complaint that canvassing officials have improperly refused to canvass votes that were lawfully cast, the appropriate court has, and may exercise, its traditional jurisdiction.  It may inquire into the matter, determine whether the administrative officials have carried out their ministerial duties in accordance with the law, and, if they have not, command them to do so.  That is all that the Circuit Court was asked to do in this case. n9

n9 We have resolved the issues of jurisdiction and justiciability primarily on the basis of Maryland law because we think that the body of that law, as we have expounded it, is adequate for the purpose.  We recognize that some courts in other States have interpreted counterpart provisions in their Constitutions differently.  We believe that our views are consonant with those expressed by the Supreme Court in Powell v. McCormack, supra, 395 U.S. 486, 89 S.Ct. 1944, and Roudebush v. Hartke, 405 U.S. 15, 92 S.Ct. 804, 31 L.Ed.2d 1 (1972), and by the U.S. Court of Appeals for the 7th Circuit in McIntyre v. Fallahay, 766 F.2d 1078 (7th Cir.1985). See also State ex rel. Olson v. Bakken, 329 N.W.2d 575 (N.D.1983).

[***29]

   [*305] III. THE MERITS

   In one important sense, the merits of a complaint such as that now before us cannot be entirely divorced from the underlying issue of justiciability.  In this delicate area, the power to inquire is necessarily broader than the power to act, for, if not clear from a mere reading of the complaint, the facts developed in the judicial proceeding may demonstrate that the controversy is indeed one that is beyond judicial resolution.  The court can inquire as to why disputed ballots were or were not canvassed, but its authority to reverse the administrative decision will depend on the nature of the reasons given.

   A. The Nine Domestic Ballots

   Of the 12 absentee ballots still in dispute, nine were mailed from within the United States.  The timeliness of those ballots is governed by Md.Code Ann. art. 33, § 27-9(c)(1), which, in pertinent part, regards an absentee ballot as timely if:

   "(i) It has been received by the board prior to the closing of the polls on election day; or

   (ii)1. It was mailed before election day;

   2. The United State[s] Postal Service, or the postal service of any other country, has provided verification of that fact by affixing[***30] a mark so indicating on the covering envelope; and

   [*306] 3. The board receives the ballot from the United States Postal Service not later [**1067] than 4 p.m. on the Wednesday following election day."
 
(Emphasis added.)

   The ballots in question were not received prior to the closing of the polls on election day and so do not comply with subsection (c)(1)(i).  To be timely, therefore, they must satisfy the requirements of subsection (c)(1)(ii).

   The ballots were indeed received by the alternative deadline set forth in subsection (c)(1)(ii)3; the question is when they were mailed. In each instance, the covering envelope is postmarked November 4 -- election day -- and, although it is entirely possible that some or all of them were actually deposited in a U.S. mailbox prior to election day, it is beyond dispute that the postmark does not provide "verification of that fact."£ It was on that basis, and that basis alone, that the board rejected the ballots.

   The problem was that the written instructions given to the absentee voters were at best ambiguous and at worst actually misleading on this point. Notwithstanding the clear purport of subsection (c)(1)(ii) that[***31] each of the three conditions, including postmark verification, must be satisfied if the ballot is received after closing of the polls, the instructions stated, in two places, that "[a] ballot received by mail will be considered timely until 4 P.M. on the Wednesday following election day, provided it bears a postmark verifying it was mailed before election day or the signed affidavit of the voter indicates that it was marked and mailed before election day." n10
 
(Emphasis added.)

n10 Md.Code Ann. art. 33, § 27-8, states that "[t]he printed instructions for the casting of absentee ballots shall be prescribed by the State Administrative Board of Election Laws . . . ."£ We assume that these instructions were so prescribed. There is nothing in the record to indicate who prepared the instructions -- the only agency identified on the instructions is the Anne Arundel County election board -- and we note that, if an official form has been prescribed by the State Board, it was not done by any regulation appearing in COMAR.

[***32]

   It was because of that instruction, cast in the disjunctive, that the court opened the envelopes to see if there was an [*307] affidavit attesting to a timely marking and mailing.  In each instance, the court found an unwitnessed, unattested affidavit of the voter stating, in relevant part, that "[t]he ballot, if mailed, was completed and mailed no later than the day before election."£ Acknowledging that "[t]he law clearly says that in this situation they're supposed to be mailed before election day" and that "the presumption is that they were mailed on election day based on the postmark" (emphasis added), the court nonetheless decided that "we ought to count votes from voters who have complied with the instructions on the ballot . . . ."£ That was the basis of the court's order to canvass the nine domestic ballots.

   B. The Three Foreign Ballots

   Three of the 12 ballots were mailed from outside the United States.  The timeliness of those ballots is governed by § 27-9(d) and (e).  Subsection (d)(1) directs that a ballot received from a location outside the United States be considered as received timely if,

   "(i) It has been received by the board from the United[***33] States Postal Service not later than 4 p.m. on the second Friday following the election day; and

   (ii) 1. It was mailed before election day; and

   2. The United States Postal Service, or the postal service of any other country, has provided verification of that fact by affixing a mark so indicating on the covering envelope."
 
(Emphasis added.)

   Subsection (e) excuses compliance with subsection (d)(1)(ii)2 in one circumstance.  It provides: "For the purposes of subsections (c) and (d), a voter's affidavit that the ballot was completed and mailed before election day shall suffice if the postal service of the country from which the ballot was mailed does not provide a postmark on that ballot."£ (Emphasis added.)

   [*308] Each of the three foreign ballots was postmarked by the Army Post Office.  The [**1068] record does not indicate the country or countries of origin or, if the ballots were mailed other than through the Army Post Office, whether the postal service of that country (or countries) would have provided a postmark for the ballots. As is the case with the domestic ballots, the foreign ballots at issue are postmarked November 4 -- election day -- and[***34] thus fail of the "verification" required by subsection (d)(1)(ii)2.  That is why the board rejected them.

   Here, too, unfortunately, the instructions provided by the election board are ambiguous.  In two places, they state:
 
"A ballot received by mail will be considered timely until 4 P.M. on the Wednesday following election day, provided it bears a postmark verifying it was mailed before election day or the signed affidavit of the voter indicates that it was marked and mailed before election day.  For a ballot received from an overseas location in a general election, the extended deadline for timeliness is the second Friday after election, provided it bears verification that it was marked and mailed before election day."
 
(Emphasis added.)

   Believing those instructions to be misleading and indicating doubt as to whether the APO postmarks truly reflected the actual date of mailing, the court opened the envelopes, noted that each contained a voter's affidavit that the ballot was completed and mailed prior to election day, and, on the basis of those affidavits, ordered the board to canvass the votes.

   C. Analysis

   It is clear beyond cavil that the nine domestic[***35] ballots fail to satisfy the conditions for timeliness set forth in § 27-9(c)(1) and that the three foreign ballots fail to satisfy the analogous conditions set forth in § 27-9(d)(1).  It is equally clear, on this record, that they cannot be saved by virtue of § 27-9(e).  Read in the light of §§ 27-9(c)(1)(ii) and (d)(1)(ii), subsection (e) was obviously intended to apply only where [*309] the postal service used by the voter does not provide a postmark, which would make compliance with the "verification" requirements of subsections (c)(1)(ii) and (d)(1)(ii) impossible.  That was not the case here; all 12 envelopes were indeed postmarked by an official United States postal service.

   Conceding at least technical noncompliance with subsections (c)(1)(ii)2 and (d)(1)(ii)2, Mr. Hammond seeks to defend the court's action on two grounds: (1) that the requirement of "verification" by postmark is merely "directory," that the only "mandatory" requirement is that the ballot be received by the alternate deadline, and that, as the "mandatory" requirement has been satisfied, there has been substantial compliance with the law, and (2) that a voter should not be disenfranchised for technical[***36] noncompliance with the statutory requirement where he or she follows the instructions of the election officials.

   The directory/mandatory argument is based on the provision in both subsections (c) and (d) that any ballot received "after the deadline established in this subsection may not be counted."£ That sanction, he says, is a limited one, applying only to late receipt of the ballot; it does not apply to the requirement of timely mailing or, more particularly, to the requirement of verification of timely mailing.

   We do not agree.  For one thing, this Court in recent times has departed from the notion that clear commands or conditions imposed by a legislative body may be disregarded on the theory that they are merely "directory."£ See, for example, Office & Prof. Employees Int'l v. MTA, 295 Md. 88, 96, 453 A.2d 1191 (1982), where we observed that "where a statute authorizes or permits a person or agency to take a certain type of action in a particular manner, such manner becomes a mandatory limitation, and the action must be taken in conformity with it."

   That is particularly apt in this case.  The Legislature has accorded absentee voters a special privilege not shared[***37] by other voters -- the privilege of having their vote count [*310] even though received by the election officials after the polls have closed.  Unqualified, [**1069] or qualified only by a deadline on receipt of the ballot, that privilege could become a distinctly unfair political advantage; it would allow a group of voters actually to cast their ballots after the polls had closed, and thus open the way for some very unwholesome machinations. n11£ The Legislature was very careful to avoid that possibility by requiring not only that the ballot actually be mailed before election day but also that there be an official verification of that fact by means of a postmark. Given the care that the Legislature has traditionally shown in crafting the State election laws, we cannot conceive that it intended those requirements to be other than mandatory. Compare Hammond v. Hickel, 588 P.2d 256 (Alaska 1978), cert. denied, 441 U.S. 907, 99 S.Ct. 1998, 60 L.Ed.2d 376 (1979), and Willis v. Thomas, 600 P.2d 1079 (Alaska 1979), both decided under a statute, since amended by the Alaska Legislature, that was somewhat different from § 27-9(c) and (d).

n11 It is important to keep in mind that a person does not have to be very far away to qualify as an absentee voter. With nearly instant predictions on radio and television based on exit polling, late voting by absentee voters can create real unfairness in an election.

[***38]

   The second argument is more troubling, and indeed it has found favor in some courts.  See, for example, In re Recount of Ballots Cast In General Election, 457 Pa. 279, 325 A.2d 303 (1974); In re Contest of 1979 General Election, Etc., 489 Pa. 404, 414 A.2d 310 (1980); Hawkins v. Persons,    Ala.   , 484 So.2d 1072 (1986). Although the Alabama case presented a unique and rather compelling circumstance, the Pennsylvania court actually directed the counting of ballots that the law flatly declared were "void and shall not be counted."£ In re Recount of Ballots, supra, 325 A.2d at 308.

   This Court has never gone that far.  We have, on a number of occasions, expressed the view that "unimportant mistakes made by election officials should not be allowed to [*311] thwart the will of the people freely expressed at the ballot box" or that "mere irregularities . . . should not be allowed to set aside what the voters have decided" (Wilkinson v. McGill, 192 Md. 387, 393, 64 A.2d 266 (1949); Mahoney v. Sup. of Elections, 205 Md. 380, 109 A.2d 110 (1954); McNulty v. Board of Elections, supra, 245 Md. 1, 224 A.2d 844 (1966)), thus suggesting that more serious[***39] errors might be taken into account.  And we have sometimes endeavored to sustain votes that were in substantial compliance with the requirements of law.  See Coulehan v. White, 95 Md. 703, 53 A. 786 (1902); Town of Landover Hills v. Brandt, 199 Md. 105, 85 A.2d 449 (1952). But we have never sanctioned the counting of ballots that were plainly in violation of a law particularly designed to protect the integrity of the elective process.  Indeed, in Hammond v. Love, supra, 187 Md. 138, 49 A.2d 75, we directed the issuance of a writ of mandamus compelling the election officials to reject certain ballots that were not signed or initialed by the election judge, as required by law.  We were aware that the voters were innocent in the matter, but we were also aware that the requirement of initialing ballots had been regarded by the Legislature as an "important safeguard."£ We said, at 149, 49 A.2d 75:

   "It is unfortunate that voters should lose their votes by oversight of election officials -- and by their own failure to notice that they have not been given authenticated ballots. But, as has often been said, it would be a greater evil for the courts to ignore the law itself [***40]  by permitting election officials to ignore statutory requirements designed to safeguard the integrity of elections, i.e., the rights of all the voters."
 
(Emphasis added.)

   In the present posture of this case, the issue is a dual one: (1) can election officials effectively change the law by giving erroneous, ambiguous, or misleading instructions to the voters, and (2) can a court command a board of canvassers to credit the improper instructions rather than the law?  Absent some more compelling circumstance than [*312] is present here, the answer [**1070]to both questions must be "no."£ As we have said, the court was justified in taking cognizance of Mr. Hammond's complaint and inquiring into the reasons for the board's rejection of the disputed ballots. It was not justified, however, in directing the board to favor the board's instructions over the clear requirements of the law.  Even apart from the "separation of powers" problem, but especially in light of it, that was simply an inappropriate exercise of judicial review.

   JUDGMENT OF CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED; JUDGMENT HEREBY ENTERED DIRECTING BOARD OF STATE CANVASSERS TO CERTIFY ELECTION RESULTS [***41]FOR HOUSE OF DELEGATES FROM DISTRICT 30, ANNE ARUNDEL COUNTY, IN ACCORDANCE WITH THIS OPINION; APPELLEE TO PAY THE COSTS; MANDATE TO ISSUE FORTHWITH. 

STATE of Maryland v. Herbert Franklin BROWN 
No. 57, September Term, 1985
 
Court of Appeals of Maryland
 
307 Md. 651; 516 A.2d 965; 1986 Md. LEXIS 314

 November  10, 1986

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals, Circuit Court for  Anne Arundel  County, Judge Robert Heise.

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED, AND CASE REMANDED TO THE COURT OF SPECIAL APPEALS WITH DIRECTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AND REMAND THE CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  RESPONDENT TO PAY COSTS.

CORE TERMS:  trial date, postponement, appearance, postponed, Maryland Rule, speedy trial, waive, trial date beyond, express consent, time limit, consented, sanction of dismissal, criminal case, deadline, motion to dismiss, good cause shown, first appearance, prompt trial, time period, rescheduled, arraignment, scheduling, nullity, waived, prompt, writ of certiorari, prophylactic, conditioned, indictment, indicted

COUNSEL: Jillyn K. Schulze, Assistant Attorney General (Stephen H. Sachs, Attorney General, on the brief), Baltimore, for appellant.

   Michael Braudes, Assistant Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for appellee.

JUDGES: Murphy, C.J., and Smith, * Eldridge, Cole, Rodowsky, Couch and McAuliffe, JJ.

* Smith, 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: [*652] [**965] Herbert Franklin Brown was indicted for illegally manufacturing phencyclidine (PCP).  The Circuit Court for[***2] Anne Arundel County dismissed the indictment on the ground that Brown was not brought to trial within the 180-day time limit of Maryland Code (1957, 1982 Repl.Vol., 1986 Cum.Supp.), Art. 27, § 591, and former Maryland Rule 746. n1£ The Court of Special Appeals affirmed the dismissal.  State v. Brown, 61 Md.App. 411, 486 A.2d 813 (1985). This Court then granted the State's petition for a writ of certiorari presenting the question of whether the defendant's "waiver of Rule 746 requirements" constituted express consent to a trial date in violation of Rule 746, thereby rendering inapplicable the dismissal sanction.  This question, arising in a somewhat similar situation, was expressly reserved in Farinholt v. State, 299 Md. 32, 42, 472 A.2d 452, 456 (1984).

n1 Former Maryland Rule 746 is presently numbered Maryland Rule 4-271. Because Rule 746 was in effect at the time this case was in the trial court, we shall use the former number.

   [*653] [**966] The defendant Brown was indicted on March 14, [***3]1983, and his first appearance before the court pursuant to former Rule 723 (now Rule 4-213) was on March 28, 1983.  Therefore, the 180-day period for bringing the case to trial pursuant to Code, Art. 27, § 591, and Rule 746, concluded on September 26, 1983. n2£ Counsel for Brown entered his appearance on April 14, 1983, at which time Brown entered a plea of not guilty and requested a jury trial.

n2 Maryland Code (1957, 1982 Repl.Vol., 1986 Cum.Supp.), Art. 27, § 591, provides:
 
"§ 591.  Setting date for trial; postponement.

   "(a) 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 in which the matter is pending, shall set a date for the trial of the case, which date shall be not later than 180 days 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 good cause shown by the moving party and only with the permission of the administrative judge of the court where the matter is pending.

   (b) The judges of the Court of Appeals of Maryland are authorized to establish additional rules of practice and procedure for the implementation of this section in the various circuit courts throughout the State of Maryland."

   Maryland Rule 4-271, which does not differ in substance from former Rule 746, provides:
 
"Rule 4-271.  TRIAL DATE

   "(a) Trial Date in Circuit Court.  -- 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.

   "(b) Change of Trial Date in District Court.  -- The date for trial in the District Court may be changed on motion of a party and for good cause shown."

   In the present case, the 180th day was September 24, 1983.  As this was a Saturday, the period expired on September 26, 1984.

[***4]

   The trial of this case was originally scheduled for July 19, 1983.  On July 7, 1983, Brown filed a document purporting [*654] to "waive" the 180-day requirement of Rule 746.  The title and first paragraph of the document read as follows:

   "WAIVER OF MARYLAND RULE 746 REQUIREMENTS

   "The Defendant named above, who is not in custody, pending the trial of this case, having been advised by counsel, of the right to a prompt disposition of this case, hereby waives the time requirements from appearance of Defendant before the Court pursuant to Maryland Rule 723 n[3] to trial (180 days)."
 
A second paragraph of the document reflected an agreement between the prosecution and the defense for a postponement of the July 19th trial date, stating:

   "That counsel for the Defendant, Stanley H. Needleman and the Assistant State's Attorney, Patrick J. Bell have agreed to the continuance of the trial date of July 19, 1983 for the above-entitled case."
 
In addition, on July 11, 1983, defense counsel filed a letter requesting a postponement due to a scheduling conflict.  The County Administrative Judge granted the request, and the trial was rescheduled for September 13, 1983, [***5]thirteen days before the expiration of the 180-day period.

n3 The parties state that the use of "Maryland Rule 723" in the body of the document was an error, and that "Rule 746" was intended.

 
   The case was called for trial on September 13, 1983, but was postponed upon the State's request.  The postponement was granted by the County Administrative Judge, in his chambers with both counsel present; however there was no court reporter present to record the proceedings.  The docket entry states that the case was postponed because Brown had not been transported to the court from the [*655] Baltimore [**967] City Jail. n4£ Trial was rescheduled for January 26, 1984, 304 days after Brown's initial appearance and 122 days after the end of the 180-day period.

n4 The record indicates that on August 24, 1983, the State mailed a notice to appear to Brown at his home address, although at that time he was incarcerated in the Baltimore City Jail.  The record further indicates that on September 9, 1983, the State sent a writ of habeas corpus to the warden of the Baltimore City Jail to deliver Brown to court for trial.

[***6]

   The case was called on January 26, 1984, and again was postponed due to the State's failure to transport Brown for trial. n5£ Trial was rescheduled for March 15, 1984, 353 days after Brown's arraignment.

n5 Again, notice to appear was mailed to Brown at his home address although he was incarcerated in the Baltimore City Jail at that time.  The State corrected its records in February 1984.

   On March 9, 1984, Brown filed a motion to dismiss, asserting both a violation of Rule 746 and of his constitutional right to a speedy trial. On March 15, 1984, when the case was called for trial, the trial judge granted the motion to dismiss on the ground that Art. 27, § 591, and Rule 746 were violated and that dismissal was the appropriate sanction.  The judge stated:
 
"[The 180-day requirement] was waived, but then the waiver became a nullity in the sense that a trial date was set for September 13th, so it would have been within the time period anyway.  So the waiver no longer was a factor because a trial date[***7] was set within the time period. . . ."
 
The trial judge did not rule on the constitutional speedy trial claim, although the judge commented that there was an unreasonable delay in bringing the case to trial which was attributable to the State.

   In affirming the dismissal, the Court of Special Appeals concluded that Brown did not expressly consent to a trial date beyond the 180-day limit.  As to Brown's "waiver" of the 180-day requirement, the Court of Special Appeals stated that "the effect of it was only to provide 'a continuance [*656] of the trial date of July 19, 1983.'"£ State v. Brown, supra, 61 Md.App. at 416, 486 A.2d 813. The court relied upon Pennington v. State, 299 Md. 23, 29, 472 A.2d 447, 450 (1984), quoting from Pennington as follows (61 Md.App. at 416, 486 A.2d 813, quoting 299 Md. at 29, 472 A.2d 447):
 
"'[W]hen a defendant's attorney on February 6th seeks a postponement of a March 11th trial date because of a scheduling conflict on that day, it is not reasonable to infer that he is seeking a trial date beyond June 7th [the 180th day] absent any evidence in the record supporting such inference.'"

   With respect to the postponement[***8] of the trial on September 13, 1983, the Court of Special Appeals was "not persuaded that [County Administrative] Judge Williams was clearly erroneous when he granted the September 13 postponement."£ 61 Md.App. at 417, 486 A.2d 813. The appellate court held, however, that the extreme length of the delay between September 13, 1983, and the ultimate trial date of March 15, 1984, shifted the burden of justification to the State, and that the State had failed to justify the delay. Id. at 418, 486 A.2d 813. Therefore, the Court of Special Appeals decided that the trial judge did not err in dismissing the indictment.

   This Court then granted the State's petition for a writ of certiorari which presented two questions.  The first was whether a defendant's "express . . . waiver," filed at about the same time as his request to postpone the trial date, "becomes a nullity if the postponement does not in fact exceed the 180-day period."£ The second question concerned whether the length of the postponement here "was unreasonable."£ For reasons which will be apparent hereafter, we shall not reach the second question.

   I.

   Preliminarily, we wish to emphasize that this case does not involve a [***9]defendant's "waiver" of the requirements [*657] of Art. 27, § 591, and former Rule 746.  Despite [**968] the terminology used by both parties and by the courts below, the requirements of § 591 and Rule 746 cannot be rendered inoperable because a defendant purports to "waive" them.  Neither the accused nor the prosecution nor the trial court are empowered to dispense with the mandates of § 591 and Rule 746.

   We have repeatedly distinguished the requirements of § 591 and Rule 746 from a criminal defendant's state and federal constitutional rights to a speedy trial. See, e.g., Curley v. State, 299 Md. 449, 460, 474 A.2d 502 (1984); Satchell v. State, 299 Md. 42, 45, 472 A.2d 457 (1984); Farinholt v. State, supra, 299 Md. at 41, 472 A.2d 452; Calhoun v. State, 299 Md. 1, 5 n. 2, 472 A.2d 436 (1984); State v. Frazier, 298 Md. 422, 427-429, 456-457, 463-464 n. 33, 470 A.2d 1269 (1984); Goins v. State, 293 Md. 97, 109, 442 A.2d 550 (1982); State v. Hicks, 285 Md. 310, 320, 403 A.2d 356, on motion for reconsideration, 285 Md. 334, 403 A.2d 368 (1979). Unlike statutes or rules in many other jurisdictions, "§ 591 and Rule 746 were not intended to be[***10] codifications of the constitutional speedy trial right. . . .  Instead, their chief purpose was to operate as a prophylactic measure 'to further society's interest in the prompt disposition of criminal trials,'" Curley v. State, supra, 299 Md. at 460, 474 A.2d 502, quoting from State v. Frazier, supra, 298 Md. at 456, 470 A.2d 1269. See Calhoun v. State, supra, 299 Md. at 11-12, 472 A.2d 436. "The provisions of [§ 591 and] Rule 746 are of mandatory application, binding upon the prosecution and defense alike," State v. Hicks, supra, 285 Md. at 318, 403 A.2d 356.

   All postponements of a circuit court criminal trial date must be done in accordance with the requirements set forth in § 591 and Rule 746 (now Rule 4-271).  Thus, every postponement must be granted by the county administrative judge or his designee and must be supported by good cause.  Grant v. State, 299 Md. 47, 53, 472 A.2d 459 (1984); Farinholt v. State, supra, 299 Md. at 40-41, 472 A.2d 452; State v. Frazier, supra, 298 Md. at 428, 470 A.2d 1269. Consequently, [*658] the fact that the accused may seek the postponement or agree to it does not dispense with these requirements.

   In[***11] State v. Hicks, supra, and subsequent cases, we held that when a circuit court criminal case was not tried within the 180-day time limit set forth by § 591 and Rule 746, and was not postponed beyond the 180-day deadline in accordance with § 591 and Rule 746, the sanction for such violation of the statute and rule is ordinarily dismissal of the criminal charges.  The sanctions for other violations of § 591 and Rule 746 are ones of internal judicial administration.  Farinholt v. State, supra, 299 Md. at 41, 472 A.2d 452; State v. Hicks, supra, 285 Md. at 335, 403 A.2d 356. See Grant v. State, supra, 299 Md. at 53, 472 A.2d 459. The sanction of dismissal, where that sanction is applicable, is not for the purpose of protecting a criminal defendant's right to a speedy trial; instead, it is a prophylactic measure to further society's interest in trying criminal cases within 180 days.  Farinholt v. State, supra, 299 Md. at 41, 472 A.2d 452; Calhoun v. State, supra, 299 Md. at 11-12, 472 A.2d 436.

   Finally, even when a circuit court criminal case has been postponed beyond the 180-day time limit in violation of § 591 and Rule 746, the sanction of dismissal is inapplicable[***12] "where the defendant, either individually or by his attorney, seeks or expressly consents to a trial date in violation of Rule 746."£ State v. Hicks, supra, 285 Md. at 335, 403 A.2d 356. See Pennington v. State, supra, 299 Md. at 28-29, 472 A.2d 447; State v. Frazier, supra, 298 Md. at 447 n. 17, 470 A.2d 1269; Goins v. State, supra, 293 Md. at 108, 442 A.2d 550. This is not because the defendant, by his action or consent, has "waived" the requirements of § 591 and Rule 746, so that the requirements are inapplicable.  Rather, it is because "[i]t would . . . be entirely inappropriate for the defendant to gain advantage from a violation of the rule when he was a [**969]party to that violation."£ State v. Hicks, supra, 285 Md. at 335, 403 A.2d 356.

   [*659] In sum, the principal issue in this case is not whether the defendant Brown "waived the requirements" of § 591 and Rule 746.  The issue is whether Brown "expressly consent[ed] to a trial date in violation of Rule 746."£ Hicks, at 335, 403 A.2d 356.

   II.

   We shall assume arguendo that the Court of Special Appeals correctly held that there was not good cause for the length of the postponement in[***13] this case from September 13, 1983, to March 15, 1984, that such postponement of the trial date constituted a clear abuse of discretion by the administrative judge and/or the circuit court personnel acting under the administrative judge's supervision, and that, therefore, § 591 and Rule 746 were violated. Nevertheless, it is apparent to us that Brown expressly consented to a trial date in violation of § 591 and Rule 746, and that, therefore, dismissal of the criminal case is not the appropriate sanction for the violation of the statute and rule.

   The document filed by the defendant on July 7, 1983, was entitled "Waiver of Maryland Rule 746 Requirements."£ It recited that the defendant had "been advised by counsel, of the right to a prompt disposition of this case."£ It went on to state unequivocally that the defendant "hereby waives the time requirements from appearance of Defendant before the Court . . . to trial (180 days)."£ While, as previously discussed, a defendant is not empowered to "waive" the time requirements of § 591 and Rule 746, the language used constitutes an express and unambiguous consent to a trial date in violation of § 591 and Rule 746.  There is no qualification, [***14] limitation or condition upon the consent given by the defendant.  Instead, Mr. Brown, having been advised of the prompt trial requirements of the law, unequivocally set forth his view that Rule 746 and the 180-day time limit for criminal trials could be disregarded.  The consent, when it was filed on July 7, 1983, contemplated that a trial date more than 180 days from the defendant's first appearance [*660] might be set and that such violation of the prompt trial requirements was agreeable to the defendant.

   The defendant and both courts below have viewed the consent filed on July 7, 1983, as conditioned or qualified by the defendant's request to postpone the July 19, 1983, trial date, and that after the July 19th trial date was postponed until September 13, 1983, which was within the 180-day time period, the defendant's consent became a nullity. Nothing in the language of the July 7th "Waiver of Maryland Rule 746 Requirements," however, suggests that the consent to a trial date in violation of § 591 and Rule 746 was in any manner conditioned or qualified by the defendant's request for a postponement, or that the consent to a trial date in violation of the statute and Rule was[***15] to be effective only to the extent necessary for the defendant's postponement request. Although the second paragraph of the July 7th document recited that the prosecution and defense had agreed to a postponement, nothing in the language used qualified or limited the "waiver" of Rule 746 requirements.  Moreover, the defendant's actual request for a postponement was filed four days later, on July 11, 1983.

   Pennington v. State, supra, relied upon by the Court of Special Appeals, is quite distinguishable.  In Pennington, the issue was whether the defendant, by seeking a postponement when 121 days remained in the 180-day period, had expressly consented to a trial date in violation of the rule.  Determining that express consent was lacking, this Court stated (299 Md. at 28-29, 472 A.2d 447): 

   "In the case at bar, there is nothing in the record before us indicating that the defendant or his attorney expressly consented to the August 6, 1982, trial date. We would agree that when a defendant or his attorney, in the latter portion of the 180-day period, seeks the postponement [**970] of a previously assigned trial date, and the newly assigned trial date is beyond 180 days, [***16] it could reasonably be concluded that such defendant has sought a trial date in violation of the rule.  On the other hand, when a [*661]defendant's attorney on February 6th seeks a postponement of a March 11th trial date because of a scheduling conflict on that day, it is not reasonable to infer that he is seeking a trial date beyond June 7th absent any evidence in the record supporting such inference.  When the defendant's motion for a postponement was made in this case, there remained 121 days before the deadline set forth in § 591 and Rule 746.  Nothing in the record before us suggests that the defendant's attorney knew, or should have known, that the next available trial date might be beyond the 180-day deadline."
 
The defendant in Pennington merely requested a postponement, and that act alone, under the circumstances, was held not to be express consent to a trial date in violation of the rule.  In this case, the defendant Brown both requested a postponement and had filed four days earlier a written express consent to a trial date beyond the 180-day period.

   As the defendant Brown unqualifiedly and expressly consented to a trial date in violation of § 591[***17] and Rule 746, the sanction of dismissal is not appropriate even if the statute and rule were violated. n6

n6 We note that cases in other jurisdictions have similarly given effect to unlimited "waivers" of time requirements in prompt trial statutes or rules and have held that dismissal is not appropriate.  See, e.g., State ex rel. Gibson v. Olliff, 452 So.2d 110, 112 (Fla.App.1984); State v. Moss, 395 So.2d 561, 562 (Fla.App.1981); Thompson v. State ex rel. Mitchell, 353 So.2d 664 (Fla.App.1978); Commonwealth v. Green, 503 Pa. 278, 283, 469 A.2d 552, 555 (1983). A contrary view, however, seems to have been adopted in State v. Ramsay, 41 Wash.App. 380, 704 P.2d 657 (1985); and State v. Pomeroy, 18 Wash.App. 837, 573 P.2d 805 (1977).

   As previously mentioned, the defendant's motion to dismiss was also grounded upon an asserted violation of his federal constitutional right to a speedy trial, but the trial court did not reach this issue.  Moreover, the purported "waiver" filed on July 7, 1983, [***18] was limited to the requirements of § 591 and Rule 746.  Consequently, the question of whether the defendant's Sixth Amendment right to a speedy trial was violated must be reached upon remand.

   [*662] JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED, AND CASE REMANDED TO THE COURT OF SPECIAL APPEALS WITH DIRECTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AND REMAND THE CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  RESPONDENT TO PAY COSTS. 

In re CRIMINAL INVESTIGATION NO. 1-162, In the Circuit Courtfor Anne Arundel County 
No. 27, September Term, 1986
 
Court of Appeals of Maryland
 
307 Md. 674; 516 A.2d 976; 1986 Md. LEXIS 319

 November  10, 1986

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals, Circuit Court for  Anne Arundel  County, Judge Bruce C. Williams.

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS VACATED; CASE REMANDED TO THAT COURT WITH DIRECTIONS TO DISMISS THE APPEAL AS MOOT; EACH PARTY TO PAY ITS OWN COSTS.

CORE TERMS:  immunity, gaming, compelled to testify, transactional immunity, immunity statute, compelled testimony, fifth amendment, grand jury, bribery, betting, exempt, immunity granted, gambling, self-incrimination, testifying, prosecuted, compelled, lottery, moot, constitutional challenge, criminal prosecution, conspiracy, prosecutor, derivative, construe, remote, responsive answers, ny person, unrelated, constitutional protection

COUNSEL: Dale P. Kelberman, Assistant Attorney General (Stephen H. Sachs, Attorney General, and Deborah K. Chasanow, Assistant Attorney General, on the brief), Baltimore, for appellant.

   John H. Morris, Jr. and David B. Irwin (Venable, Baetjer & Howard, William A. Swisher, Baltimore, Kenneth H. Masters, Catonsville, Maryland, and John W. Moyer and Gerald W. Soukup, Towson, Maryland on the brief), for appellee.

JUDGES: Murphy, C.J., Eldridge, Cole, Rodowsky, Couch and McAuliffe, JJ., and Marvin H. Smith, Associate Judge of the Court of Appeals of Maryland (retired), Specially Assigned.

OPINIONBY: MURPHY

OPINION: [*678] [**979] Maryland Code (1957, 1982 Repl.Vol.), Article 27, § 262 confers immunity from prosecution upon witnesses compelled by the State to testify in the course of a gambling investigation.  This case focuses upon the scope or extent of the immunity provided by § 262, which reads as follows:

   "No person[***2] shall refuse to testify concerning any gaming or betting because his testimony would implicate himself and he shall be a competent witness and compellable to testify against any person or persons who may have committed any of the offenses set forth under this subtitle, provided that any person so compelled to testify [*679] in behalf of the State in any such case shall be exempt from prosecution, trial and punishment for any and all such crimes and offenses of which such person so testifying may have been guilty or a participant and about which he was so compelled to testify."

   I.

   On October 7, 1985, eleven persons appeared before the Anne Arundel County Grand Jury in response to summonses issued in the course of investigations into alleged gambling and related amusement tax and income tax violations.  The witnesses, upon advice of counsel, gave only their names and addresses to the Grand Jury. Each witness then invoked the fifth amendment privilege against compelled self-incrimination in response to all other questions.

   The prosecutor advised the witnesses that § 262 gave them immunity from prosecution, trial and punishment for any and all crimes about which they might [***3]be compelled to testify. The witnesses nevertheless declined to testify.  Thereafter, the prosecutor filed motions to compel their testimony, pursuant to Maryland Rule 4-631. n1£ In response to the motions, the witnesses claimed that the immunity conferred upon them by § 262 was not sufficient to protect them from prosecution for crimes other than gambling violations concerning which their testimony might relate; therefore, the witnesses contended that the § 262 immunity [*680] did not displace their fifth amendment privilege.  The circuit court (Williams, J.) denied the motions to compel.  The State appealed to the Court of Special Appeals, which heard oral argument of the appeal on December 10, 1985.  On February 6, 1986, the intermediate appellate court affirmed the judgment of the circuit court.  In Re Criminal Investigation No. 1-162, 66 Md.App. 315, 503 A.2d 1363 (1986). It concluded that § 262 limited the immunity conferred only to gambling crimes and not, as the State contended, "to any and all questions put to the witnesses by the prosecution."£ It said that "prosecutors may not convert specific witness immunization statutes into fishing expeditions in matters[***4] extraneous to the express purpose of the particular statute."£ 66 Md.App. at 320, 503 A.2d 1363. We granted certiorari to consider the significant issue involved in the case.

n1 The rule provides:

   "(a) Requested by State.  -- In any proceeding under this Title, before a grand jury, or pursuant to Code, Article 10 § 39A, if a witness lawfully refuses to answer or to provide other information on the basis of the privilege against self incrimination, the court, when authorized by law, shall compel the witness to answer or otherwise provide information if:

   (1) The State's Attorney requests in writing or on the record that the court order the witness to answer or otherwise provide information, notwithstanding the witness' claim of privilege; and

    (2) The court informs the witness of the scope of the immunity the witness will receive as provided by the appropriate statute.

   (b) Order of Court.  -- The court shall enter its order compelling testimony in writing or on the record."

   II.

   Mootness

   The term[***5] of the Grand Jury before which the State sought to compel the witnesses to testify expired on March 1, 1986, and it was discharged. Earlier, in February, [**980] the State initiated prosecutions in the District Court of Maryland for the gambling and tax offenses that formed the basis of the Grand Jury investigation.  After the opinion of the Court of Special Appeals was filed, the State petitioned for certiorari on February 21, 1986.  We granted the petition on April 21, 1986.  On June 10, 1986, during the pendency of the case before us, all but one of the targets of the Grand Jury investigation were found guilty of certain gambling offenses.  Based on these facts, the witnesses argue that this case is moot and they urge dismissal of the appeal.

   Although the Court has the constitutional authority to decide moot cases, we rarely exercise it.  Reyes v. Prince George's County, 281 Md. 279, 297-99, 380 A.2d 12 (1977). Thus, we generally dismiss an appeal when a case becomes [*681]moot. E.g., Mercy Hosp. v. Jackson, 306 Md. 556, 510 A.2d 562 (1986); County Comm'rs v. Secretary of Health, 302 Md. 566, 489 A.2d 1127 (1985); Nat'l Collegiate Athletic Ass'n v. Tucker[***6] , 300 Md. 156, 476 A.2d 1160 (1984). As we so recently noted in Mercy Hosp., supra, 306 Md. at 563, 510 A.2d 562, quoting from Lloyd v. Supervisors of Elections, 206 Md. 36, 43, 111 A.2d 379 (1954), we will depart from this general rule
 
"'if the public interest clearly will be hurt if the question is not immediately decided, if the matter involved is likely to recur frequently, and its recurrence will involve a relationship between government and its citizens, or a duty of government, and upon any recurrence, the same difficulty which prevented the appeal at hand from being heard in time is likely again to prevent a decision. . . .'"

   We think the present case meets these criteria.  Clearly, the public has an interest in the effective investigation and prosecution of violations of this State's criminal laws.  The General Assembly considered this interest sufficiently strong to enact immunity statutes to assist the State in certain instances.  See, e.g., Code (1957, 1982 Repl.Vol.) Art. 27, § 23 (bribery), § 262 (gaming), § 298(c) (narcotics), § 371 (lotteries), § 540 (sabotage).  With the exception of § 540, these immunity provisions contain similar language. [***7]n2£ [*682] Thus, the same issue regarding the scope of immunity is likely to recur with frequency.

n2 Section 23 provides in pertinent part:
 
"[A]ny person so compelled to testify in behalf of the State in any such case shall be exempt from prosecution, trial and punishment for any such crime of which such person so testifying may have been guilty or a participant therein, and about which he was so compelled to testify."£ (Emphasis added.)
 
Section 298(c) provides in pertinent part:
 
"[A]ny person so compelled to testify on behalf of the State in any such case shall be exempt from prosecution, trial and punishment for any and all such crimes and offenses about which such person was so compelled to testify."£ (Emphasis added.)
 
Section 371 provides in pertinent part:
 
"[A]ny person so compelled to testify in behalf of the State in any such case shall be exempt from prosecution, trial and punishment for any and all such crimes and offenses of which such person so testifying may have been guilty of [as] a participant therein and about which he was so compelled to testify."£ (Emphasis added.)

   On the other hand, § 540 defines the immunity from prosecution as follows:
 
"[N]o person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he may so testify or produce evidence, documentary or otherwise, and no testimony so given or produced shall be received against him, upon any criminal investigation, proceeding or trial, except upon a prosecution for perjury or contempt of court based upon the giving or producing of such testimony."

[***8]

   Similarly, the parties would be likely to have the same difficulties in obtaining prompt appellate review.  As in this case, many of the offenses covered by the immunity statutes must be prosecuted within one year of their occurrence.  E.g., Code (1957, 1982 Repl.Vol.), Art. 27, §§ 287, 287A(c), 287A(d), 358, 360-364.  The one-year statute of limitations, combined with the limited term of a Grand Jury, severely compresses the time that we have to render a decision.  Although we can expedite briefing, argument, and decision, that procedure does not allow us the unhurried [**981] contemplation helpful for resolution of important issues.  See Mercy Hosp., supra, 306 Md. at 567, 510 A.2d 562 (McAuliffe, J., dissenting).

   Furthermore, the issue presented does not depend on the precise facts of this case; rather, its resolution is solely a matter of law.  Compare Nat'l Un. of Hosp. v. Johns Hopkins, 293 Md. 343, 350 n. 2, 444 A.2d 448 (1982) (Court determined Anti-Injunction Act's applicability to labor disputes at nonprofit hospitals despite mootness) with Mercy Hosp., supra, 306 Md. at 563, 510 A.2d 562 (Court declined to address right of Jehovah's Witness to refuse[***9] blood transfusion because, inter alia, the case was too fact-dependent).  See also News American v. State, 294 Md. 30, 39, 447 A.2d 1264 (1982) (Court distinguished between fact-dependent issue of gag order and purely legal issue of proper way for press to raise first amendment issues in criminal cases).  In addition, the Court of Special Appeals' decision limiting the scope of immunity granted by § 262, if [*683] correct, would severely hamper the State's ability to prosecute violations of the bribery, gaming, lotteries, and narcotics laws.  See News American, supra, 294 Md. at 39, 447 A.2d 1264 (Court's disagreement with Court of Special Appeals' opinion one factor in its decision to discuss moot case).

   III.

   The fifth amendment to the United States Constitution grants witnesses a privilege against compelled self-incrimination. n3£ A witness may assert the privilege in any proceeding in order to prevent disclosures that the witness reasonably believes could be used in a criminal prosecution or as a lead to uncover other evidence for a criminal prosecution. Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951).

n3 In Malloy v. Hogan, 378 U.S. 1, 3, 84 S.Ct. 1489, 1490, 12 L.Ed.2d 653 (1964), the Supreme Court held that the fifth amendment privilege applied to the states through the due process clause of the fourteenth amendment.

   Article 22 of the Maryland Declaration of Rights grants the same privilege against compulsory self-incrimination. We have consistently construed Article 22 to be in pari materia with the fifth amendment. Richardson v. State, 285 Md. 261, 265, 401 A.2d 1021 (1979). Thus, Article 22 provides protection identical to that provided by the fifth amendment privilege.

[***10]

   Despite this privilege, the government can compel a witness to testify if the witness obtains immunity coextensive with the privilege.  Kastigar v. United States, 406 U.S. 441, 449, 92 S.Ct. 1653, 1658, 32 L.Ed.2d 212 (1972); Murphy v. Waterfront Commission, 378 U.S. 52, 54, 84 S.Ct. 1594, 1596, 12 L.Ed.2d 678 (1964); Counselman v. Hitchcock, 142 U.S. 547, 585, 12 S.Ct. 195, 206, 35 L.Ed. 1110 (1892). The immunity must be granted by statute; a court has no inherent power to compel testimony in the face of a witness' claim of the fifth amendment privilege.  In re Special Investigation No. 231, 295 Md. 366, 371, 455 A.2d 442 (1983) (quoting Bowie v. State, 14 Md.App. 567, 575, 287 A.2d 782 (1972)). To be valid, the statutory immunity must [*684] leave the government in substantially the same position with regard to prosecution of the witness as it would have been if the witness had asserted the privilege against self-incrimination. Murphy, supra, 378 U.S. at 79, 84 S.Ct. at 1609.

   Three types of immunity are possible.  Use immunity protects against the future use of the witness' compelled testimony in a criminal prosecution of the witness; use and derivative[***11] use immunity prohibit the use of the witness' testimony to uncover other evidence for use against the witness; and transactional immunity bars any future prosecution of the witness for offenses based on the compelled testimony. See Kastigar, supra, 406 U.S. at 453, 92 S.Ct. at 1661; Butler v. State, 55 Md.App. 409, 462 A.2d 1230 (1983). Use immunity alone is not broad enough to defeat the privilege as the danger remains that the compelled testimony might be used indirectly or derivately to place the witness in a more incriminated posture than before [**982] such testimony. Counselman v. Hitchcock, supra. To withstand a constitutional challenge, an immunity statute must provide either use and derivative use or transactional immunity. n4£ Kastigar, supra, 406 U.S. at 453, 92 S.Ct. at 1661.

n4 In any subsequent prosecution of the witness, the government has the burden of demonstrating that its evidence is derived from a source wholly independent of the compelled testimony. Kastigar, supra, 406 U.S. at 460, 92 S.Ct. at 1664; Murphy, supra, 378 U.S. at 79 n. 18, 84 S.Ct. at 1609 n. 18.

   If the witness has been granted transactional immunity and is then indicted, the defendant must demonstrate a substantial connection between the immunized testimony and subsequent prosecution, either as a defense to the charge or in a motion to dismiss the indictment.  See Edwards v. United States, 312 U.S. 473, 479-80, 61 S.Ct. 669, 673-74, 85 L.Ed. 957 (1941); Hale v. Henkel, 201 U.S. 43, 68, 26 S.Ct. 370, 376, 50 L.Ed. 652 (1906); State v. Comes, 237 Md. 271, 281, 206 A.2d 124 (1965).

[***12]

   For reasons which follow, we think the General Assembly, in enacting § 262, intended to provide witnesses with transactional immunity, the broadest of the three forms of [*685] immunity. n5£ Although § 262 clearly applies only to witnesses in a gaming or betting investigation, the scope of the immunity granted by the phrase "exempt from prosecution, trial and punishment for any and all such crimes and offenses" necessarily governs our determination.  If the immunity applies only to prosecution for gaming and betting offenses, as the witnesses contend, the statute does not provide sufficient protection to overcome the fifth amendment privilege.  If, however, the scope of the statutory immunity is broader than its application, as the State contends, the statute meets constitutional requirements.

n5 As earlier noted, the General Assembly has enacted immunity statutes applicable in the investigation and prosecution of specific crimes.  The legislature has refused at least four times to enact a general immunity statute providing use and derivative use immunity; the bills either died in committee or received an unfavorable report.  See S.B. 1285 (1978); H.B. 981 (1979); H.B. 197 (1980); H.B. 519 (1981); S.B. 482 (1981).

[***13]

   In construing a statute, a court must ascertain and carry out the real legislative intent.  Police Comm'r v. Dowling, 281 Md. 412, 418, 379 A.2d 1007 (1977). The court looks first to the language of the statute, assuming that it is to be afforded its ordinary and generally understood meaning.  Mauzy v. Hornbeck, 285 Md. 84, 92-93, 400 A.2d 1091 (1979). If the statutory language contains no ambiguity or obscurity, the court generally looks no further.  State v. Fabritz, 276 Md. 416, 421, 348 A.2d 275 (1975), cert. denied, 425 U.S. 942, 96 S.Ct. 1680, 48 L.Ed.2d 185 (1976).

   When a statute can be fairly read to have more than one meaning, however, the court will examine the statute's subject matter, purpose, and object and consider the consequences flowing from different constructions.  State v. Berry, 287 Md. 491, 496, 413 A.2d 557 (1980). If one of the proposed interpretations would render the statute valid while another would render it invalid or ineffective, the court will construe the statute to be valid whenever feasible. Pickett v. Prince George's County, 291 Md. 648, 661, 436 A.2d 449 (1981).

   [*686] With the above principles in mind, we now turn[***14] to § 262.  The final phrase of that statute provides that any person compelled to testify "shall be exempt from prosecution, trial and punishment for any and all such crimes and offenses of which such person so testifying may have been guilty or a participant and about which he was so compelled to testify."£ The State argues that the witnesses and the lower courts confuse the application of § 262 with the scope of immunity granted by this phrase.  Thus, according to the State, as long as a gaming or betting investigation is being conducted, a witness compelled to testify in that investigation receives transactional immunity for any offense revealed by that witness' responsive answers. The State also contends that this interpretation of § 262 follows plainly from the statutory language.

   [**983] The witnesses maintain, as the Court of Special Appeals held, that the statute plainly confers immunity only for gaming offenses revealed by the compelled testimony. They argue that the word "such" in the phrase "any and all such crimes and offenses" refers to the phrase, "offenses under this subtitle," used to define the witnesses to whom the immunity statute applies.

   The language[***15] of § 262 supports both constructions.  Therefore, we must look beyond the words themselves and examine the purpose of the statute and the consequences of different constructions.  Berry, supra, 287 Md. at 496, 413 A.2d 557. As the Supreme Court explained in Kastigar, supra, 406 U.S. at 446, 92 S.Ct. at 1656, immunity statutes "seek a rational accommodation between the imperatives of the privilege and the legitimate demands of government to compel citizens to testify."£ Furthermore, such statutes reflect the fact that some offenses are difficult to investigate or prosecute without the testimony of persons involved in the crime.  Id.

   If we accept the witnesses' construction of § 262, the statute will have little, if any, utility.  Persons compelled to testify would receive transactional immunity only for gaming [*687] or betting offenses.  This immunity would not be coextensive with the witness' fifth amendment privilege if the witness reasonably believed that responsive answers to any of the questions would reveal the witness' involvement in other crimes.  It is reasonable to assume that testimony about gaming or betting violations could also be used in prosecutions[***16] for other offenses, such as tax evasion.  Indeed, the State in this case was investigating both offenses.  Thus, construction of § 262 proposed by the witnesses would significantly hamper the State's ability to pursue gaming investigations.

   The State's proposed construction, on the other hand, would make the statute considerably more useful.  It could use § 262 to facilitate gaming investigations and prosecutions, as the legislature intended, and the witness would not lose the protection of the fifth amendment privilege against compelled self-incrimination.

   Many courts have distinguished in this manner between the application of an immunity statute and the scope of immunity granted. Brown v. United States, 359 U.S. 41, 47, 79 S.Ct. 539, 544, 3 L.Ed.2d 609 (1959); In re Vericker, 446 F.2d 244, 247 (2d Cir.1971); In re Grand Jury Investigation of Giancana, 352 F.2d 921, 923 (7th Cir.), cert. denied, 382 U.S. 959, 86 S.Ct. 437, 15 L.Ed.2d 362 (1965); State v. Kelly, 71 So.2d 887, 894 (Fla.1954); Gold v. Menna, 25 N.Y.2d 475, 255 N.E.2d 235, 237-38, 307 N.Y.S.2d 33, 35-38 (1969). The statutes involved in these cases do use language different from § 262 to[***17] define the scope of the immunity. n6£ But the cases correctly explain that the analysis of an offense-specific immunity statute, such as § 262, requires two steps: First, is the State investigating an offense that triggers the applicability of the immunity grant?  If so, are the questions substantially related to the [*688] offense making the statute applicable?  In re Vericker, supra, 446 F.2d at 247; Kelly, supra, 71 So.2d at 894. See also Heike v. United States, 227 U.S. 131, 144, 33 S.Ct. 226, 228, 57 L.Ed. 450 (1913) (to support claim of immunity, compelled testimony must be substantially related to particular charge).

n6 The statutes involved in these cases all limited the witnesses to whom immunity could be granted, as § 262 does.  They described the immunity, however, as transactional immunity "for or on account of any transaction, matter, or thing," as Maryland's sabotage immunity statute does.

   Such an analysis avoids the myopic result posited by the witnesses.  Of course, the State[***18] cannot transform a specific immunity statute into a general one.  A bona fide gaming investigation must be involved before the State can utilize § 262 to compel testimony.  And only responsive answers to questions related to the gaming investigation would be covered by the grant of[**984] immunity. Thus, the State could not compel answers to questions totally unrelated to the gaming investigation, and the witness could not obtain immunity for crimes not related to the compelled testimony. n7

n7 This construction thus bars the "fishing expeditions" feared by the Court of Special Appeals.  66 Md.App. at 320, 503 A.2d 1363. Without a bona fide gaming investigation, the State would have no basis for compelling testimony over a witness' claim of privilege.

   The witnesses urge, however, that such an attempt to construe § 262 to render it valid contravenes the legislative intent as demonstrated by the history of § 262.  They point out that the precursor of § 262 was enacted by ch. 195 of the Acts of 1856.  Codified[***19] as § 258 of the 1924 Code, it provided:

   "No person shall refuse to testify concerning any gaming or betting because his testimony would implicate himself; but when any such person is required to testify in behalf of the State, he shall not be prosecuted for any offense to which his testimony relates."
 
Section 262 was enacted by ch. 438 of the Acts of 1937; it amended former § 258 by changing the last phrase of that statute from "he shall not be prosecuted for any offense to which his testimony relates" to "any person so compelled to testify . . . shall be exempt from prosecution . . . for any [*689] and all such crimes and offenses of which such person so testifying may have been guilty or a participant and about which he was compelled to testify."£ According to the witnesses, this change demonstrates that the legislature intended to limit the scope of the immunity granted.

   Generally, a substantive amendment to an existing statute indicates an intent to change the meaning of that statute.  1A Sutherland Statutory Construction § 22.30 (1985); see also United States v. Canadian Vinyl Industries, 555 F.2d 806, 810 (C.C.P.A.1977); Stiftel v. Malarkey, 384[***20] A.2d 9, 13 (Del.1977). The legislature is presumed to know of and disagree with prior construction of the statute.  See In re Special Investigation No. 236, 295 Md. 573, 576, 458 A.2d 75 (1983); cf.  Nutwell v. Sup. of Elections, 205 Md. 338, 343, 108 A.2d 149 (1954) (Court presumed legislature agreed with 1911 interpretation of election laws because it had failed to change them).  The circumstances surrounding the amendment must be considered, however, in order to determine the legislature's intent.  United States v. Montgomery County, 761 F.2d 998, 1003 (4th Cir.1985); West Winds, Inc. v. M.V. Resolute, 720 F.2d 1097, 1100 (9th Cir.1983); O'Connor v. A & P Enterprises, 81 Ill.2d 260, 41 Ill.Dec. 782, 787, 408 N.E.2d 204, 209 (1980). For example, the presumption of changed meaning is weakened if the particular change at issue was not an isolated or singular amendment, but part of a comprehensive statutory revision.  Recht-Goldin-Siegal C., Inc. v. Wisconsin Dept. of Rev., 64 Wis.2d 303, 219 N.W.2d 379, 382 (1974); see also In re Kossow, 393 A.2d 97 (D.C.1978) (court examined entire statutory revision and legislative history to determine congressional intent[***21] in deleting particular provision).

   The circumstances surrounding the 1937 amendment to what is now § 262 indicate that we should not rely solely on that amendment in interpreting the scope of the immunity grant.  First, the legislature apparently did not amend the statute in response to a judicial construction with which it disagreed; we can find no reported cases construing the [*690] earlier version of what is now § 262.  Second, the General Assembly not only amended the final phrase of the statute, but also substantially rewrote the entire provision.  Finally, the General Assembly also amended the bribery immunity statute and enacted the lottery immunity statute on the same day that it amended the predecessor to § 262.  All three statutes defined the scope of immunity in similar language. n8 

n8 The lottery immunity statute has language identical to § 262.  The bribery immunity statute uses the phrase "any such crime" rather than "any and all such crimes and offenses."

   [**985] Legislative enactments[***22] treating the same subject matter should generally be construed harmoniously, especially if enacted at the same time.  State v. Loscomb, 291 Md. 424, 432, 435 A.2d 764 (1981); State v. Barnes, 273 Md. 195, 207, 328 A.3d 737 (1974).  In Brown v. State, 233 Md. 288, 196 A.2d 614 (1964), we rejected a constitutional challenge to the bribery immunity statute, which contains language similar to § 262, and we think that case controls here.

   In Brown, we characterized the immunity granted by § 23 as broad.  233 Md. at 297, 196 A.2d 614. Although § 23 referred only to bribery, we determined that the statute also conferred transactional immunity for attempted bribery and conspiracy to bribe. n9£ Id. at 297-98, 196 A.2d 614. We found no merit in Brown's contention that his testimony would expose him to prosecution for "unrelated crimes."£ He did not specify what other offenses his testimony might reveal, and we thought the danger of prosecution for other crimes too remote to require constitutional protection. Id. at 299-300, 196 A.2d 614.

n9 The Court construed § 23 to provide immunity from conspiracy to bribe, but noted that a separate statute, Article 27, § 39, also provided such protection for conspiracy.

[***23]

   In this case, the witnesses reasonably feared prosecution for crimes related to gaming offenses that would [*691] have been revealed by their compelled testimony. The danger of prosecution for these related offenses was not remote; in fact, the State initiated both gaming and tax evasion prosecutions based on its investigations.  Thus, the witnesses in this case, unlike Brown, deserve constitutional protection from the danger of prosecution, and § 262 provides it by granting them transactional immunity.

   The witnesses contend that we read § 23 narrowly in Brown and thus must construe § 262 narrowly as well.  We disagree.  In Brown, we considered the offenses that might be revealed by Brown's compelled testimony and determined that § 23 conferred transactional immunity for those offenses.  Because we considered remote the possibility that Brown would be subject to prosecution for "unrelated crimes," we rejected his constitutional challenge to § 23.  We do the same in this case.  Manifestly, the compelled testimony of the witnesses could reveal their involvement in tax as well as gaming offenses.  Because the State sought to compel this testimony in a gaming investigation, [***24] however, § 262 applies and grants transactional immunity to the witnesses.  Thus, in the circumstances, it was error not to compel the witnesses' testimony before the Grand Jury.

   JUDGMENT OF THE COURT OF SPECIAL APPEALS VACATED; CASE REMANDED TO THAT COURT WITH DIRECTIONS TO DISMISS THE APPEAL AS MOOT; EACH PARTY TO PAY ITS OWN COSTS. 

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Bernard FrancisGOLDBERG 
Misc. Docket (Subtitle BV) No. 50, September Term, 1985
 
Court of Appeals of Maryland
 
307 Md. 546; 515 A.2d 765; 1986 Md. LEXIS 307

 October  8, 1986

   PRIOR HISTORY: [***1]  
Circuit Court for  Anne Arundel  County, James C. Cawood, Jr., 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 BV 15 c, FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST BERNARD F. GOLDBERG.

CORE TERMS:  extenuating circumstances, own use, misappropriation, settlement, deposited, converted, sheintal, mortgage, spring

COUNSEL: Melvin Hirshman, Bar Counsel and Walter D. Murphy, Jr., Assistant Bar Counsel, for petitioner Attorney Grievance Commission of Maryland.

   No appearance on behalf of respondent.

JUDGES: Murphy, C.J., and Eldridge, Cole, Rodowsky, Couch, McAuliffe and Adkins, JJ.

OPINIONBY: RODOWSKY

OPINION: [*547] [**766] This attorney disciplinary proceeding concerns the misappropriation of substantial amounts of client funds.

   Bar Counsel, on behalf of the Attorney Grievance Commission, petitioned this Court for disciplinary action against Bernard F. Goldberg (Goldberg), a member of the Maryland Bar since June 28, 1951.  We referred the charges to Judge James C. Cawood, Jr. of the Circuit Court for Anne Arundel County for findings of fact.  Two separate transactions are involved.

   In the spring of 1984 Goldberg represented Mr. Sol Sheintal of Florida in the [***2] negotiation and sale of certain realty to the City of Frederick.  The purchase price of $1,888,825 was paid in installments with checks drawn solely to the order of Goldberg.  Goldberg deposited these checks into a personal or business account and converted to his own use substantial amounts of this money. In January 1985 Goldberg remitted $1,400,000 to Sheintal but the net balance due to the client, of at least $388,825, is still outstanding.  Goldberg thereby violated, as charged, DR 1-102(A)(1), (3), (4), (5), and (6), DR 7-101(A)(2) and (3), DR 7-102(A)(3), (5), and (8), DR 9-102(A)(1) and (2), and DR 9-102(B)(1), (2), (3), and (4).

   In the spring of 1985 Goldberg, acting as settlement officer for a title company, conducted a residential real estate settlement. The buyers, Mr. and Mrs. Larry E. Horsey, had financed the transaction through a mortgage company which issued the loan proceeds of $58,905.41 by check made payable solely to the order of Goldberg.  Goldberg deposited the check to his personal or office account and converted all, or substantial amounts, of the money to his own use. Goldberg's checks to the sellers for the net proceeds and to the realtors for commissions[***3] were returned for insufficient funds.  He failed to pay off the existing mortgage on the property.  In this transaction Goldberg violated, as charged, DR 1-102(A)(1), (3), (4), (5), and (6), DR 7-101(A)(2) and (3), DR 7-102(A)(3), (5), and (8), DR 9-102(A)(1) and (2), and DR 9-102(B)(1), (2), (3), and (4).

   [*548] Misappropriation by an attorney of the funds of others entrusted to him is a most grave form of professional misconduct.  Absent compelling extenuating circumstances the sanction for such misconduct is generally disbarment.  See Attorney Grievance Commission v. Velasquez, 301 Md. 450, 483 A.2d 354 (1984); Attorney Grievance Commission v. Boehm, 293 Md. 476, 446 A.2d 52 (1982); Attorney Grievance Commission v. Pattison, 292 Md. 599, 441 A.2d 328 (1982); Attorney Grievance Commission v. Burka, 292 Md. 221, 438 A.2d 514 (1981); Attorney Grievance Commission v. McBurney, 283 Md. 628, 392 A.2d 81 (1978). Here there is no finding of any compelling extenuating circumstances and Goldberg has not taken any exceptions to Judge Cawood's findings.

   Accordingly, we shall order that Bernard F. Goldberg be disbarred and that his name be stricken from the rolls of[***4] those authorized to practice law in this State.

   IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING [**767] COSTS OF ALL TRANSCRIPTS, PURSUANT TO MARYLAND RULE BV 15 c, FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST BERNARD F. GOLDBERG. 

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. James HenryGILBERT 
Misc. Docket (Subtitle BV) No. 6, September Term, 1985
 
Court of Appeals of Maryland
 
307 Md. 481; 515 A.2d 454; 1986 Md. LEXIS 306

 October  6, 1986

   SUBSEQUENT HISTORY: [***1]

   Motion for Reconsideration Denied November 21, 1986.

PRIOR HISTORY:  
Appeal from Circuit Court for  Anne Arundel  County, Raymond G. Thieme, Jr., Judge.

DISPOSITION: IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING THE COSTS OF TRANSCRIPTS, PURSUANT TO MARYLAND RULE BV15 c FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST JAMES HENRY GILBERT.

CORE TERMS:  murder, failure to disclose, involvement, disbarment, omission, moral character, civil suit, disciplinary, disclosure, fitness to practice law, intentionally, answered, lawsuit, materiality, failed to disclose, law school, misconduct, laches, civil litigation, material fact, forgery, criminal record, state of mind, non-disclosure, misread, gun, incomplete, plainly, State Board of Law Examiners, material information

COUNSEL: Melvin Hirshman, Bar Counsel and Glenn M. Grossman, Assistant Bar Counsel for the Attorney Grievance Commission of Maryland, Annapolis, for petitioner.

   James Henry Gilbert, Esquire, Baltimore, pro se, for respondent.

JUDGES: March 5, 1986: Murphy, C.J., and Smith, Eldridge, Cole, Rodowsky, Couch and McAuliffe, JJ.  September 8, 1986: Murphy, C.J., and Eldridge, Cole, Rodowsky, Couch, McAuliffe and Adkins, JJ.

OPINIONBY: MURPHY

OPINION: [*483] [**455] This case involves a petition for disciplinary action filed by the Attorney Grievance Commission against James Gilbert, a member of the Maryland Bar since 1983.  The Commission seeks Gilbert's disbarment for a claimed violation of DR 1-101(A) and DR 1-102(A)(1) and (4) due to his alleged intentional failure to disclose a material[***2] fact in his 1980 application for registration as a candidate for admission to the Maryland Bar. n1£ Specifically, the nondisclosure was of a civil suit filed by Gilbert in which he unsuccessfully sought, as beneficiary, to recover the proceeds of several [*484] life insurance policies procured by him on his deceased wife's life three months prior to her murder.

n1 DR 1-101(A) states:
 
"(A) A lawyer is subject to discipline if he has made a materially false statement in, or if he has deliberately failed to disclose a material fact requested in connection with, his application for admission to the bar."

   DR 1-102(A)(1) and (4) provide:
 
"(A) A lawyer shall not:
 
(1) Violate a Disciplinary Rule.
 
. . .
 
(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation."

   I.

   Prior to his admission to the Maryland Bar, Gilbert was involved in a series of criminal incidents, all of which occurred over a six-month period in 1967. As a result, he was charged with[***3] conspiracy to commit forgery, forgery and uttering, murder and accessory to commit murder, homicide and assault.  He pled nolo contendere to the charge of conspiracy to commit forgery for which in 1968 he received a suspended sentence.  He was found guilty of six counts of forgery and uttering arising out of the use of a misappropriated credit card and received a sentence of twenty months to five years incarceration.  Shortly after his enrollment in law school, he was arrested on murder and aggravated assault charges arising out of a Halloween night stabbing of a gas station attendant by one of his companions.  Gilbert was found not guilty of these offenses; subsequently, he pled nolo contendere to simple assault for which he received a suspended sentence.  During this same period in 1967, Gilbert was arrested for murder and conspiracy to commit murder in connection with the murder of his wife on June 4, 1967.  He was indicted for these offenses, along with his sister, on March 13, 1969.  The charges against Gilbert were nol prossed on June 24, 1974, following his sister's acquittal on March 13, 1972.

   Gilbert was initially incarcerated without bond until December 1967 and [***4]was later imprisoned for twenty-one months from November 1970 to August 1972 upon his convictions for forgery and uttering.  As a result, he was unable to continue law school. He resumed his law school studies after his release from incarceration and graduated in 1980.  He completed his application for admission to the Bar of Maryland on May 20, 1980.  On May 29, 1980, Gilbert filed a petition for the expungement of all records associated with the nol prossed indictment for his wife's murder. The petition was granted on June 23, 1980.  Gilbert [*485] successfully passed the July 1980 Bar Examination. Thereafter, the character investigation process was initiated to determine Gilbert's present moral character fitness for admission to the Maryland Bar.

   [**456] The Character Committee of the Third Judicial Circuit held a hearing on October 21, 1980 to determine whether Gilbert currently possessed the requisite moral character to justify his admission to the Bar.  See Rule 4 of the Rules Governing Admission to the Bar.  The Committee unanimously recommended to the State Board of Law Examiners that Gilbert be denied admission.  As authorized by Rule 4 c, the Board conducted[***5] its own evidentiary hearing on November 2, 1981; by a 3-2 vote, it concluded that Gilbert had demonstrated his present moral character fitness and recommended that he be admitted.

   We considered the matter at a hearing "upon the records made by the Character Committee and the Board."£ Rule 4c.  A divided Court ordered Gilbert's admission after concluding that the evidence was clear and convincing that he was completely rehabilitated and presently possessed good moral character. See In re Application of James G., 296 Md. 310, 462 A.2d 1198 (1983). In so concluding, we were conscious of Gilbert's difficult life experiences, including the continuous conflict between his parents that culminated in their separation; the birth of a Downs Syndrone child during his first marriage in 1964; and the fact that his first wife had been the victim of a murder in 1967.  In arriving at our evaluation of Gilbert's present moral character, we took into consideration the nature of the offenses for which he was convicted; that all his criminal offenses occurred within a six-month period; that the murder charge involving his wife's death was nol prossed; that sixteen years had since passed; that Gilbert[***6] had been admitted to the Bar of the District of Columbia in 1981 and had performed as a lawyer without any negative incidents; and that although Gilbert's crimes were serious and involved moral turpitude, he candidly and "readily admitted his responsibility for and his participation in the crimes in which he was involved and [*486] his remorse is fully evident and genuine."£ 296 Md. at 316, 462 A.2d 1198.

   Shortly after his admission to the Maryland Bar, Gilbert's involvement as a plaintiff in a civil suit, not disclosed on his admission application, came to the attention of the Attorney Grievance Commission.  That suit was filed by Gilbert on June 4, 1970 in the Circuit Court for Baltimore County to recover $110,000, representing the proceeds from two insurance policies which Gilbert had obtained insuring his wife's life.  The insurer had declined to pay the proceeds to Gilbert as beneficiary, contending that he was not entitled to them because he had intentionally caused the death of his wife.  At the conclusion of an evidentiary non-jury trial on November 10, 1970, Judge Kenneth C. Proctor denied Gilbert's claim to the proceeds, finding that "the evidence is overwhelming that [***7] [Gilbert] intentionally caused the death of his wife in order to reap the harvest, namely, the proceeds of these two life insurance policies, so that he could live, according to his light, happily ever after."

   In so concluding, Judge Proctor related in an oral opinion that the evidence showed that three months before his wife's murder, Gilbert obtained the two policies insuring his wife's life.  The murder took place at a tourist home operated by Gilbert and his wife.  According to Gilbert's sister, Janet, the door buzzer sounded that night and she answered. At the door was a man with a knife.  He followed Janet upstairs to where Gilbert's wife was watching television.  Gilbert was not then present.  The intruder forced Gilbert's wife into another room, demanded money from her and then, almost immediately, shot her with a gun which Gilbert and his wife had purchased the day prior to the crime.  According to Janet, she picked up the gun and shot at the assailant, who escaped.

   Judge Proctor deemed it suspicious that Janet's fingerprints were not found on the murder gun. He expressed concern that there was no explanation as to how the murderer obtained possession of the gun; that[***8] while the murderer [*487]demanded money, he immediately shot the victim without any [**457] further attempt to complete a robbery; that Janet waited a substantial time before calling the police; and that Gilbert inexplicably called home at 2:00 A.M. -- about an hour after the police arrived on the scene -- from his employer's home where he had spent the evening.

   Judge Proctor noted that there was testimony from Gilbert's employer that Gilbert told him he paid $5,000 to have his wife killed.  There was evidence tending to corroborate this testimony from police witnesses who overheard an incriminating conversation between Gilbert and his employer while on a stakeout at the employer's home.

   In completing his application to the Maryland Bar, Gilbert did not mention this civil suit despite the fact that Question 10 of the admission application required the following information:
 
"a complete list of all suits in equity, actions at law, suits in bankruptcy or other statutory proceedings, matters in probate, lunacy, guardianship, and every other judicial or administrative proceedings of every nature and kind, except criminal proceedings, to which I am or have ever been[***9] a party: (If 'None' so state)."
 
Gilbert answered "None" to this question.

   II.

   Following an evidentiary hearing before an Inquiry Panel, and upon the recommendation of the Review Board, the Attorney Grievance Commission filed its petition for disciplinary action on April 9, 1985, averring that Gilbert had intentionally failed to disclose a material fact by his negative answer to Question 10 of the admission application, and that he thereby violated the previously quoted disciplinary rules.  We referred the matter pursuant to Maryland Rule BV9 b to Judge Raymond G. Thieme, Jr. of the Circuit Court for Anne Arundel County.  After two evidentiary hearings, Judge Thieme filed extensive factual findings, concluding that Gilbert had intentionally failed to disclose the civil suit; that the information thereby withheld was of [*488] material fact; that the Character Committee, the State Board of Law Examiners, and this Court were deliberately deprived of material information; and that Gilbert had thereby violated DR 1-101(A) and DR 1-102(A)(1) and (4).

   Gilbert has taken exception to Judge Thieme's finding that he intentionally failed to disclose the Bankers Life litigation. [***10] Specifically, he objects to Judge Thieme's finding that he largely completed his application on May 17, 1980, and held it for three days before submitting it on May 20, 1980. He also contends that Judge Thieme could not properly find that he gave varying explanations for his failure to disclose Bankers Life on his application and that the language of Question 10 was clear.  While Gilbert now concedes that Question 10 requires the inclusion of all civil suits, he argues that applicants might think that Question 9(c) and (d) n2 required disclosure of all lawsuits where money is sought and that Question 10 concerns only civil suits other than where money is sought.  Furthermore, as evidence that he misread Question 10, Gilbert notes that [*489] there were five other civil suits that he did [**458]not list in response to that question.  He insists the failure to list these suits could not have been purposeful because their disclosure would not have prejudiced his application.

n2 Question 9(c) and (d), and Gilbert's responses, were as follows:
 
"(c) Are there any unsatisfied judgments against you?  yes/Yes or No
 
(which have been paid but for which I have not yet received an order of satisfaction) A default judgment was entered against me in January, 1969 when I was incarcerated.  I recently learned of it.  I have written a letter to the clerk of the circuit court requesting that it be set aside.
 
"(d) Have any judgments ever been entered against you?  yes (1)/Yes or No
 
If so, furnish certified copies of such judgments, whether satisfied or unsatisfied, and the names and present addresses (with zip code) of the holders. The judgment was for approx.  $88.05 obtained by May Department Stores (Hecht's).  Their attorney is Phillip Heller Sachs, 343 North Charles St., Baltimore, Md. 21201.  Order of satisfaction forthcoming, see (c) above."

[***11]

   At the first hearing before Judge Thieme, Gilbert said that he did not remember why he answered "none" to the application's question about involvement in civil litigation. He suggested that he misread the question, and that the haste with which he completed the application contributed to this misreading. He claimed that he would have answered Question 10 correctly if he had not misread it.  Furthermore, he maintained that he had disclosed the existence of judgments against him in answer to Question 9 of the application, and that he also revealed his involvement in "lawsuits" in the character interview.  He suggested that the Character Committee had focused on his criminal record and thus precluded him from making a more detailed disclosure of his involvement in "lawsuits," specifically the Bankers Life case.

   In his factual findings, Judge Thieme characterized the language of Question 10 as very clear.  He did not believe that Gilbert completed the application in any particular hurry.  He noted that Gilbert admitted that he had the application for some time and had procrastinated in filling it out.  From the dates of Gilbert's signatures on the application and its addendum, [***12] Judge Thieme concluded that he completed Question 10 at least three days before submitting the application, and that this fact undermined his claim of hurried preparation.

   Judge Thieme also found significant Gilbert's failure to disclose the Bankers Life suit at any time during his protracted admission process.  While recognizing that Gilbert had mentioned "some civil suits," Judge Thieme observed that he provided no details beyond those concerning an $88 judgment contained in his answer to Question 9.  Moreover, he noted that when Gilbert was asked about the reasons for the police suspecting his involvement in his [*490] wife's murder, he responded only that his in-laws had been pursuing a vendetta, failing to mention that Judge Proctor had found "overwhelming evidence" that he had caused his wife's death.

   Although Judge Thieme acknowledged the concentration on Gilbert's criminal record during the admission process, he observed that Gilbert controlled the flow of information during the hearings.  Furthermore, he said that the informality of the process provided ample opportunity for Gilbert to volunteer information omitted from his application.

   Judge Thieme's factual[***13] findings are, of course, prima facie correct and Gilbert's exception to the intent finding will not be disturbed unless clearly erroneous.  Attorney Griev. Comm'n v. Kemp, 303 Md. 664, 674, 496 A.2d 672 (1985). Based on our review of the record, we are unable to say that Judge Thieme's finding that Gilbert intentionally failed to disclose the Bankers Life suit was clearly erroneous.  Judge Thieme clearly did not believe Gilbert's explanation for his failure to disclose Bankers Life.  Ordinarily, the factfinder may believe or disbelieve a witness' testimony.  Gray v. Dep't of Correction, 230 Md. 508, 511-12, 187 A.2d 860 (1963). Question 10 plainly asks applicants to list their involvement in civil litigation. That a law school graduate would not understand this question strains our imagination, as it did of Judge Thieme.  The dates on the application do indicate, as Judge Thieme found, that Gilbert completed the application over a three-day period, not in haste as Gilbert claimed.  See In re Application of G.L.S., 292 Md. 378, 389, 439 A.2d 1107 (1982) (application on its face contradicted applicant's claim of hurried preparation).  Furthermore, Judge Thieme did[***14] not conclude that Gilbert gave varying explanations for his failure to disclose Bankers Life. Rather, he characterized Gilbert's explanation as "several species of the claim that he misread question 10."£ And although by a footnote he took cognizance of Gilbert's testimony before the Inquiry Panel, Judge [**459] Thieme did not rely on such testimony, but rather on Gilbert's testimony at [*491] the hearing before the court.  We thus find no merit in Gilbert's exceptions relating to Judge Thieme's finding of intent.

   Gilbert has also excepted to Judge Thieme's conclusion that the non-disclosure was material.  He argues that the information requested by Question 10 had no bearing on the principal issue of his present moral character. He suggests that the Character Committee evinced no interest in his involvement in civil litigation and thus would not have investigated the Bankers Life suit had it been disclosed.  Further, he contends that his comment that he had been involved in "lawsuits" sufficiently alerted the Committee to the need for further inquiry.

    Gilbert also argues that the Bankers Life suit involved the same issues as were involved in the criminal case[***15] and that by disclosing and discussing at length the indictment for the murder of his wife, he disclosed all the information that would have been available in the Bankers Life suit.

   In rejecting these arguments, Judge Thieme said that the Character Committee had no reason to question Gilbert about his involvement in civil litigation since he answered "none" to Question 10, and only revealed the $88 judgment against him listed in Questions 9(c) and 9(d).  Given the committee's close questioning of Gilbert concerning the murder charges, Judge Thieme found that his failure to disclose Judge Proctor's finding of involvement in his wife's death was of benefit to him in the character assessment process.

   Nor did Judge Thieme find merit in Gilbert's contention that disclosure of the criminal indictment was tantamount to disclosure of the civil action.  He said:

   "This is not true.  The criminal charges against Gilbert were never tried and no evidence of his involvement in Mrs. Gilbert's death was adduced.  Gilbert was free to characterize the charges against him, which he did in a very self-serving manner.  The civil action, on the other hand, including an affirmative defense alleging[***16] that Gilbert [*492] caused his wife's death, was tried to a conclusion.  Bankers Life presented evidence of Gilbert's involvement in that murder. A detailed summary of this evidence was included in Judge Proctor's opinion which concluded:
 
'[T]he evidence is overwhelming that Gilbert intentionally caused the death of his wife in order to reap the harvest, namely, the proceeds of these two life insurance policies. . . .'
 
This contrasts sharply with Gilbert's evaluation of the criminal charges as the groundless products of a family vendetta or inept prosecution.

   "Judge Proctor's findings destroy the credence of Respondent's assertion that he had nothing to gain by not disclosing Bankers Life and his further assertion that the facts not disclosed were not material to his application.  In view of the three narrow votes which preceded Respondent's admission to the Bar, this Court finds that Respondent certainly benefited from the freedom he enjoyed to characterize the charges against him without contradiction."

   We have not previously construed the word "material" in the context of its usage in DR 1-101(A).  In Matter of Howe, 257 N.W.2d 420, 422 (N.D.1977), [***17]however, the North Dakota Supreme Court defined a material omission within the contemplation of the same disciplinary rule as one that "has the effect of inhibiting the efforts of the bar to determine an applicant's fitness to practice law."

   This definition accords with judicial determinations of materiality in other contexts.  For example, in ruling on a summary judgment motion, the court must determine whether the resolution of any material matter of fact may affect the outcome of the case.  King v. Bankerd, 303 Md. 98, 111, 492 A.2d 608 (1985); Lynx, Inc. v. Ordnance Products, Inc., 273 Md. 1, 8, 327 A.2d 502 (1974). Similarly, a misrepresentation [**460] or omission in an application for insurance is material if it would affect the insurer's decision about providing insurance or evaluating the risk.  Maryland [*493] Indemnity v. Steers, 221 Md. 380, 385, 157 A.2d 803 (1960). In the law of evidence, materiality "is a broad concept that is generally understood to include any evidence which is reasonably capable of influencing a tribunal's decision, but it does not require that the evidence will necessarily do so."£ (Emphasis in original.)£ Breedon v. Maryland [***18]  Dep't of Educ., 45 Md.App. 73, 84, 411 A.2d 1073 (1980). See also Restatement of Torts (Second) § 538(2)(a) (1976) (materiality of representation determined by the importance a reasonable person would attach to fact in determining course of action).

   These standards focus on the effect of the particular fact or representation on the decision-making process.  They are consistent with the Howe standard, which we adopt, for determining the materiality under DR 1-101(A) of an omission or false statement on a bar admission application.

   We agree with Judge Thieme that the omitted information was clearly material. As he found, Gilbert's failure to disclose the Bankers Life suit kept highly relevant information concerning his wife's murder from the Character Committee, the Board and from us.  It also enabled Gilbert to characterize the criminal charges against him in a self-serving and plausible fashion.  Since the criminal charges were dismissed and expunged before the character evaluation process was initiated, the investigation's central focus was upon Gilbert's criminal convictions and the evidence that he had since been rehabilitated.  That the nondisclosure of the civil[***19] suit plainly inhibited efforts to assess Gilbert's present moral character fitness to practice law is, we think, entirely plain.

   Such a conclusion, Gilbert suggests, is inconsistent with In re Application of G.L.S., 292 Md. 378, 439 A.2d 1107 (1982). There, the applicant for admission failed to disclose the details of his criminal conviction on his bar application.  As he did list the date of the conviction, however, we found that he "provided sufficient information to alert the Committee to the need for further investigation and inquiry."£ [*494] Id. at 397, 439 A.2d 1107. Furthermore, the applicant acknowledged that the information was incomplete and he provided the details during the admission process.  Unlike G.L.S., Gilbert never provided the information about Bankers Life during the admission process. Manifestly, his comment about "lawsuits," when discussing the existence of a minor, unsatisfied judgment, did not provide any information on which to base further questions.

   Gilbert's reliance on the statement in Howe, supra, 257 N.W.2d at 422, that the court would not second-guess the bar admission committee is misplaced.  What the court said was that[***20] in determining materiality, it would not speculate about the course that the admission process would have actually taken had the applicant provided complete information.  Thus, Gilbert's suggestion that the Character Committee would in no event have inquired into the details of Bankers Life had he disclosed the existence of that litigation, in effect, second-guesses the effect of complete disclosure on the Committee and contradicts the direction in Howe.

   III.

   Gilbert also takes exception to several evidentiary rulings made by Judge Thieme.  He first asserts that Judge Thieme erroneously admitted the Bankers Life file in evidence, contending that that litigation had no relevance to the disciplinary proceedings because Question 10 did not require the actual disclosure of the information contained in the civil case.  He also claims that there was no evidence to show that his disclosure of Bankers Life would have caused a Character Committee or Board member to locate and read the file.  The civil case file, however, demonstrates what information would have been available had Gilbert disclosed the existence [**461] of the lawsuit, as required in Question 10.  Such[***21] information is obviously relevant to the determination of whether Gilbert deliberately failed to disclose a material fact during the admission process and thus bears directly on his present moral character fitness to practice law.

   [*495] Gilbert next objects to Judge Thieme's hearsay exclusion of much of Milton Parker's testimony at the hearing.  He urges that Parker's testimony should have been admissible to impeach testimony given in the Bankers Life trial.  Gilbert mistakes the nature of these disciplinary proceedings.  The veracity of a witness in a trial occurring sixteen years earlier was not at issue; the judgment in that case became final when Gilbert failed to appeal. Parker's proffered testimony, allegedly tending to impeach the witness, had no bearing on whether Gilbert failed to disclose material information on his bar application.

   Gilbert also contends that Judge Thieme erroneously excluded testimony by Gilbert's parents that would have tended to show his lack of intent to conceal Bankers Life.  Judge Thieme did, however, allow Gilbert's mother and father to testify about his state of mind as he worked on his application.  He excluded testimony from Gilbert's[***22] mother about her conversations with Gilbert, but permitted her to testify that Gilbert was worried about his criminal record and not his involvement in civil litigation. Judge Thieme also excluded similar testimony from Gilbert's father about Gilbert's state of mind when he was planning to return to law school in 1978.  Of course, Gilbert's state of mind when he returned to law school had no relationship to his state of mind when he answered "none" to Question 10.  Thus, Judge Thieme properly excluded that testimony by Respondent's father.

   Gilbert also argues that his father should have been allowed to testify to his evaluation of the evidence in Bankers Life.  As discussed above, the merits of Bankers Life are not at issue in these disciplinary proceedings, and the father's testimony was accordingly properly limited.

   Also lacking in merit is Gilbert's contention that the finding of materiality in the disciplinary proceedings effectively convicts him of his wife's murder and thus denies him due process of law.  Our determination that the non-disclosure [*496] was material relates only to Gilbert's fitness to practice law, not to his guilt or innocence.

   Gilbert's assertion[***23] that laches precludes these disciplinary proceedings is equally without merit.  In Anne Arundel Co. Bar Ass'n v. Collins, 272 Md. 578, 584, 325 A.2d 724 (1974), we quoted with approval from In Re Weinstein, 254 Or. 392, 459 P.2d 548, 549 (1969) as to the defense of laches in a disciplinary proceeding:
 
"'[T]he primary purpose of professional disciplinary proceedings is to protect the public. . . .  [I]t would not be in the public interest to dismiss the disciplinary proceedings for no reason other than the Bar's failure to prosecute them with the proper dispatch.'"£ (Emphasis added in Anne Arundel Co. Bar Ass'n v. Collins.)
 
In addition, we noted that the party asserting laches must demonstrate prejudice because of the delay.

   Gilbert claims prejudice because he can no longer remember why he answered "none" to Question 10.  He concedes, however, that the Commission did not delay unduly in instituting grievance proceedings against him.  Of course, laches operates to bar a claim only when a party delays in asserting a right.  See Credit Corp. v. Williams, 246 Md. 575, 587, 229 A.2d 712 (1967). Thus, by Gilbert's own admission, the defense of laches[***24] has no application to his case.

   IV.

   Having determined that Gilbert violated DR 1-101(A) and DR 1-102(A)(1) and (4), we must determine the appropriate sanction.  That no moral character qualification [**462] to practice law is more important than truthfulness and candor is well settled.  Attorney Griev. Comm'n v. Levitt, 286 Md. 231, 238, 406 A.2d 1296 (1979); In re Application of Allan S., 282 Md. 683, 689, 387 A.2d 271 (1978). Gilbert's deliberate failure to disclose Bankers Life plainly reflects on his truthfulness and candor during the application process and [*497]hence upon his present moral character fitness to practice law in this State.

   We previously determined that the reckless making of a material false statement on a bar application warranted strong disciplinary action.  Attorney Griev. Comm'n v. Rosen, 303 Md. 60, 492 A.2d 289 (1985). Other states have considered intentional omissions or false statements on bar applications as grounds for disbarment. See, e.g., State Bar v. Langert, 43 Cal.2d 636, 276 P.2d 596 (1954) (disbarment for concealment of charges of misconduct in another state on bar application); People v. Culpepper, 645 P.2d[***25] 5 (Colo.1982) (disbarment for use of false school transcripts in connection with an application); Florida Board of Law Examiners v. Lerner, 250 So.2d 852 (Fla.1971) (disbarment for concealment on application of charges of misconduct in another state); Matter of Farrar, 242 Ga. 312, 249 S.E.2d 12 (1978) (disbarment for failure to disclose a prior disbarment on bar application to another state); In re Jordan, 106 Ill.2d 162, 88 Ill.Dec. 1, 478 N.E.2d 316 (1985) (disbarment for failure to disclose 297 parking tickets, among other omissions, on bar application); State v. Hartman, 216 Ind. 89, 23 N.E.2d 477 (1939) (disbarment for failure to disclose on application numerous civil and criminal proceedings); Matter of Elliot, 268 S.C. 522, 235 S.E.2d 111 (1977) (disbarment for failure to disclose criminal record on bar application).

   Similarly, a number of states have refused admission to applicants who have omitted pertinent information from their applications.  See, e.g., Application of Greenberg, 126 Ariz. 290, 614 P.2d 832 (1980) (belated disclosure of information reflecting adversely on moral character); Application of Walker, 112 Ariz. 134, 539 P.2d 891 (1975),[***26] cert. denied, 424 U.S. 956, 96 S.Ct. 1433, 47 L.Ed.2d 363 (1976) (failure to disclose belated draft registration); In re Green, 464 A.2d 881 (Del.1983) (failure to disclose charges of misconduct in another state); In re Beasley, 243 Ga. 134, 252 S.E.2d 615 (1979) (omission of information about involvement in legal proceedings); In re Ascher, 81 Ill.2d 485, 44 Ill.Dec. 95, 411 [*498] N.E.2d 1 (1980) (failure to disclose pending lawsuit); In re Mitan, 75 Ill.2d 118, 25 Ill.Dec. 622, 387 N.E.2d 278, cert. denied, 444 U.S. 916, 100 S.Ct. 231, 62 L.Ed.2d 171 (1979) (numerous errors and omissions on application); In re Willis, 288 N.C. 1, 215 S.E.2d 771 (1975) (incomplete, inaccurate and inconsistent responses to questions about criminal activity); Application of Jenkins, 94 N.J. 458, 467 A.2d 1084 (1983) (failure to disclose involvement in both criminal and civil proceedings).

   Gilbert relies upon Hallinan v. Committee of Bar Examiners, 65 Cal.2d 447, 421 P.2d 76, 55 Cal.Rptr. 228 (1966) as supporting a lesser sanction than disbarment. There, the court determined that the applicant's omissions were not material.  Hallinan had listed numerous arrests, [***27] but failed to include a minor conviction in England, and to list his status as an intervenor in a will contest.  In light of Hallinan's actual disclosures and the court's characterization of his offenses, it concluded that the non-disclosures had no effect on the determination of Hallinan's fitness to practice law. 421 P.2d at 94-95, 55 Cal.Rptr. 256-57.

   Gilbert also relies on In re Hadzi-Antich, 497 A.2d 1062 (D.C.1985), a case in which the court ordered a public reprimand for an attorney who had misrepresented his credentials on an employment application.  Unlike either Hallinan's or Hadzi-Antich's misconduct, Gilbert deliberately failed to disclose vitally significant material information on his bar application that he knew raised very serious questions about his fitness to practice law.

   [**463] Not every purposefully dishonest misrepresentation on a bar application may warrant the extreme sanction of disbarment. In this case, however, considering the gravity of Gilbert's misconduct, and the absence of any compelling extenuating circumstances, we conclude that disbarment is the appropriate sanction. n3

n3 The United States District Court for the District of Maryland, on December 6, 1984, refused to admit Gilbert to practice in that court.  Gilbert had applied to that court for admission on August 13, 1984.  Shortly before a scheduled hearing before the District Court on Gilbert's application, the court was informed of the non-disclosure of the Bankers Life litigation and of Judge Proctor's findings.  At the ensuing hearing, Gilbert contended that the omission was unintended that he had no reason to conceal the existence of the civil suit; that knowledge of the civil suit would not have changed the outcome of the character investigation and that the unintended omission had no bearing on his character.

   In denying Gilbert's admission, the court noted that the application clearly asked for "all suits" to which Gilbert had been a party and that, while the criminal case against him had been dismissed without findings being made, Judge Proctor in the civil case had made extensive findings as to Gilbert's role in his wife's death.  The court recognized that neither the State Board of Law Examiners nor this Court knew of Judge Proctor's findings.  It opined that had such information been disclosed, it may have affected the outcome of the investigation.  The District Court concluded that Gilbert's omission of the civil suit was "not unintentional" and that "the omission evidences incomplete rehabilitation and lack of good private and public character."£ The court further noted its concern over Judge Proctor's findings since "[p]articipation in the murder of one's wife to collect insurance is clearly one of the most reprehensible acts imaginable, one far more serious than the crimes for which James G. has actually been convicted."£ See In the Matter of James G., Misc. No. 2270, filed December 6, 1984 (unreported).

[***28]

   [*499] IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING THE COSTS OF TRANSCRIPTS, PURSUANT TO MARYLAND RULE BV15 c FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST JAMES HENRY GILBERT. 

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. JamesSommervell DAWSON III 
Misc. Docket (Subtitle BV) No. 22, September Term, 1985
 
Court of Appeals of Maryland
 
307 Md. 404; 514 A.2d 23; 1986 Md. LEXIS 288

 September  4, 1986

   PRIOR HISTORY: [**1]
 
Application for leave to appeal from Circuit Court for  Anne Arundel  County; Raymond G. Thieme, Jr., Judge.

COUNSEL: Melvin Hirshman, Bar Counsel and Kendall Calhoun, Assistant Bar Counsel to the Attorney Grievance Commission of Maryland, for petitioner.

   James Sommervell Dawson III, Esquire, pro se, for respondent.

JUDGES: Murphy, C.J., and Smith, * Eldridge, Cole, Rodowsky, Couch and McAuliffe, JJ.

* Smith, 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.

OPINIONBY: PER CURIAM

OPINION: [*404] ORDER

   WHEREAS, the Court passed an Order on April 18, 1986 suggesting the possibility of an agreement between James S. Dawson III and Bar Counsel that Respondent seek resignation with prejudice from the Maryland Bar along with payment of costs in these proceedings in exchange for Bar Counsel's willingness to dismiss all pending charges against the Respondent, and

   [*405] WHEREAS, James S. Dawson III, a member of the Bar of the State of Maryland, filed on August 1, 1986, an application to[**2] resign from the Bar of Maryland in which he admits that he was convicted in Federal Court of illegal possession of controlled dangerous substances and he further states that his resignation will avoid the need for any further proceedings in this matter, and
 
   WHEREAS, Bar Counsel thereafter filed a notice with the Court stating that he had no objection to the Court's dismissal of the charges pending against Dawson, 

   NOW, THEREFORE, it is this 4th day of September, 1986

   ORDERED, by the Court of Appeals of Maryland, that the application to resign with prejudice from the further practice of law in this State filed by James S. Dawson III be, and it is hereby, accepted, and it is further

   ORDERED that all charges pending against the Respondent in the above captioned case be, and they are hereby, dismissed, and it is further

   ORDERED that the Clerk of this Court shall strike the name of James S. Dawson III from the register of attorneys, and pursuant to Maryland Rule BV13, shall certify that fact to the Trustees of the Clients' Security Trust Fund and the Clerks of all judicial tribunals in this State. 

George Benjamin FORD, Jr. v. Pearl Rose Holland FORD 
No. 91, September Term, 1985
 
Court of Appeals of Maryland
 
307 Md. 105; 512 A.2d 389; 1986 Md. LEXIS 272

 July  25, 1986

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals, Morris Turk, Judge.

DISPOSITION: JUDGMENT AFFIRMED; COSTS TO BE PAID BY GEORGE BENJAMIN FORD, JR.

CORE TERMS:  insane, slayer, killer, insanity, homicide, beneficiary, criminally responsible, killing, decedent, felonious, murder, murderer, killed, reason of insanity, manslaughter, claimant, civil proceeding, conform, public policy, criminal law, common law, kill, convicted, criminal conduct, mens rea, maxim, criminal responsibility, requirements of law, criminality, heir

COUNSEL: Rignal W. Baldwin, Jr. (Miller, Brassel & Baldwin, P.A., on the brief), all of Annapolis, Maryland, for appellant.

   Ellen Luff (Gill Cochran, on the brief), both of Annapolis, Maryland, for appellee.

JUDGES: Smith, Senior Judge, Eldridge, Cole, Rodowsky, Couch and McAuliffe, JJ., and Charles E. Orth, Jr., Associate Judge of the Court of Appeals (retired), Specially Assigned.  Cole, Judge, dissenting in which McAuliffe, Judge, joins. Judge McAuliffe, concurs in the views here stated.

OPINIONBY: ORTH, JR.

OPINION: [*107] [**390] I

   Pearl Rose Ford murdered her mother, Muriel L. Holland, by stabbing her some 40 times.  She wrapped the body in plastic garbage bags and deposited it in the backyard of her home.  She now seeks to obtain the property left her under her mother's will.  George Benjamin Ford, Jr., her son, asserts that Pearl forfeited her entitlement to the property by the matricide and claims the property as the alternative beneficiary named in the will.  The Orphans' Court[***2] for Anne Arundel County, in which the will was admitted to probate, ruled that George "be declared the heir" of the estate.  The Circuit Court for Anne Arundel County, on appeal by Pearl to it, decided that Pearl was entitled to the property.  We ordered that a writ of certiorari be issued to the Court of Special Appeals, to which George appealed, before decision by that court.

   II

   The Maryland Legislature has not enacted a "slayer's" statute establishing what principles govern when a person kills another and would be tangibly enriched by the death.  This Court, however, has addressed the matter in three of its decisions: Price v. Hitaffer, 164 Md. 505, 165 A. 470 (1933); Chase v. Jenifer, 219 Md. 564, 150 A.2d 251 (1959); and Schifanelli v. Wallace, 271 Md. 177, 315 A.2d 513 (1974). Through these cases the Court has created in the common law of this State, the equivalent of a "slayer's" [*108] statute, which we shall refer to herein as the "slayer's rule."

   Price concerned an appeal from an Orphans' Court order passed in the administration of the estate of an intestate.  The order excluded from participation in the distribution of the estate the heirs or personal[***3] representatives of the husband of the deceased, who, it was admitted and proved, shot and killed his wife and almost immediately thereafter committed suicide. The question before this Court was:
 
Can a murderer, or his heirs and representatives through him, be enriched by taking any portion of the estate of the one murdered?  164 Md. at 506, 165 A. 470.
 
The Court dealt with the question as one of first impression in Maryland and noted the conflicting decisions of other courts of last resort in this country. The decisions at that time represented two views.
 
One line of decisions apply the common-law principle of equity that no one shall be permitted to profit by his own fraud, to take advantage of his own wrong, to found any claim upon his own iniquity, or to acquire property by his own crime, and hold that provisions of a will and the statutes of descent and distribution should be interpreted in the light of those universally recognized principles of justice and morality; that such interpretation is justified and compelled by the public policy embraced in those principles or maxims, which must control the interpretation of law, statutes, and contracts.  The[***4] other and opposite view, as expressed in those decisions which reach a [**391] different conclusion, is that, while they recognize the public policy of the common law as declared in the principles and equitable maxims above set forth, such public policy founded upon the common law has been abrogated and denied, and a new and different public policy declared by the Legislature in the enactment of statutes to direct descents and distribution, or governing the execution and effect of testamentary disposition.  Some of the courts in the last mentioned group also rely upon constitutional or statutory declarations to the effect that conviction of [*109] crime shall not work a corruption of blood or forfeiture of estate.  Id. at 506-507, 165 A. 470.
 
The Court fully discussed the two views and forcefully rejected any view which would "result in sanctioning the enrichment of the perpetrator of the most heinous murder from the estate of his victim."£ Id. at 516-517, 165 A. 470.
 
Suffice it to say that we decline to follow the reasoning supporting any interpretation fraught with consequences so pernicious and so abhorrent to the sense of justice, equity, and morality[***5] entertained by what we are pleased to believe is the overwhelming majority of thoughtful and moral people, but prefer to give expression and adherence to the principles and reasoning so forcibly presented by those courts who have in the past adopted the views . . . expressed [in the common law].  Id. at 517, 165 A. 470.
 
We observed in Chase v. Jenifer, 219 Md. at 567, 150 A.2d 251, that the decision in Price, which "was rested upon the maxim that one cannot profit by his own wrong, and on a broad ground of public policy of the common law," was perhaps not then supported by a majority of the courts dealing with the question. "Nevertheless," we declared, "we regard the decision of the Maryland Court [in Price] as settled law."£ Chase, 219 Md. at 567, 150 A.2d 251. Thus, it is the basic rule of this State that a murderer, or his heirs or representatives through him, ordinarily may not profit by taking any portion of the estate of the one murdered.

   The Court in Price indicated that "the equitable maxims of the common law" which it followed in answering the question before it, would apply not only in the case of intestacy but equally to benefits by[***6] way of wills and life insurance policies.  164 Md. at 516, 165 A. 470. Chase v. Jenifer, 219 Md. 564, 150 A.2d 251, involved the proceeds of a life insurance policy.  The question was whether a wife, named as the beneficiary under the policy upon the life of her husband, "was disqualified from recovering the proceeds by reason of the fact that she killed her husband, was tried on a charge of murder," and was found not guilty of murder, but guilty of manslaughter. 219 Md. at 565, 150 [*110]A.2d 251. n1£ The criminal court judge had found the beneficiary not guilty of murder but guilty of manslaughter, without designating, of course, whether it was voluntary or involuntary manslaughter. n2£ It was contended in the civil proceeding that "an unintentional killing, even though unlawful and felonious," is not a bar to recovery.  Id. at 569, 150 A.2d 251. We did not reach that point, however, because the facts clearly supported a finding by the criminal court [**392] judge that the killing was intentional. n3£ There was "no room for a contention that the [killing] was merely negligent and unintended."£ Id. at 570, 150 A.2d 251. We held that where the killing is both [***7]felonious and intentional, the beneficiary cannot prevail.  Id.£ In that context, we refused to distinguish between murder and manslaughter.

n1 "The case [arose] upon an interpleader filed in the equity court by the insurer, against the wife and the decedent's daughter, who had been appointed administratrix of the husband's estate."£ Chase v. Jenifer, 219 Md. 564, 565, 150 A.2d 251 (1959).

n2 It is well settled that manslaughter, under the Maryland law, is a felony, and distinguished from murder by the presence or absence of malice aforethought. Manslaughter may, however, be voluntary or involuntary, depending upon the requisite intent.  The use of a deadly weapon directed at a vital part of the body may be evidence, among other facts, of a specific intent to take life.  It may also permit an inference of malice.  An unintentional killing may be manslaughter, if due to a wanton and reckless disregard of human life. (Citations omitted).
  
Chase v. Jenifer, 219 Md. at 569, 150 A.2d 251.

n3 We noted that even if the wife had been acquitted in the criminal trial, the holding would probably not be conclusive on the chancellor.  Chase v. Jenifer, 219 Md. at 569, 150 A.2d 251. See United States v. Burns, 103 F.Supp. 690, 691-692 (D.Md.), aff'd, 200 F.2d 106 (4th Cir.1952) (per curiam).

[***8]

   In Schifanelli v. Wallace, 271 Md. 177, 315 A.2d 513, we were presented with virtually the same question we did not reach in Chase -- whether the named beneficiary under a life insurance policy is precluded from collecting the proceeds by reason of the fact that he unintentionally killed his wife, the insured; the homicide was the result of gross negligence.  We found that "the overwhelming weight of [*111] authority allows recovery where the beneficiary causes the death of the insured unintentionally or not feloniously."£ 271 Md. at 188, 315 A.2d 513 (citations omitted).  We observed, on the authority of cases cited, that
 
[t]he rule which prevents a beneficiary who has intentionally killed the insured from recovering on an insurance policy is grounded on the public policy against permitting a wilful and felonious killer to profit by his felony.  Thus, it has no application where even though the acts of the beneficiary cause death, they are without the intent to do so, Tippens v. Metropolitan Life Ins. Co., [99 F.2d 671 (5th Cir.1938)] supra; where the death is the result of accident, or even when caused by such gross negligence on the part of[***9] the beneficiary that he is guilty of involuntary manslaughter, the beneficiary may still recover, Commercial Travelers Mutual Acc. Ass'n v. Witte, [406 S.W.2d 145 (Ky.1966)] supra; the basic rule is that while a beneficiary cannot recover where the death of the insured has been intentionally caused by his act, if it is the result of carelessness and is not intentional, the beneficiary's rights under the policy are not barred. . . .  Id. [271 Md.] at 188-189, 315 A.2d 513 (citations omitted).
 
We held that the husband (the beneficiary) was not barred from recovering the policy proceeds merely because the death of his wife (the insured) "was the result of his gross negligence where that determination was accompanied by an express finding that the death was caused unintentionally."£ Id. at 189, 315 A.2d 513.

   As established by Price, Chase and Schifanelli, the present status of the law of Maryland is:
 
1) A person who kills another
 
a) may not share in the distribution of the decedent's estate as an heir by way of statutes of descent and distribution, or as a devisee or legatee under the decedent's will, nor may he collect the proceeds[***10] as a beneficiary under a policy of insurance on the decedent's life when the homicide is felonious and intentional;
  
[*112] b) may share in the distribution of the decedent's estate as an heir by way of statutes of descent and distribution, or as a devisee or legatee under the decedent's will and may collect the proceeds as a beneficiary under a policy of insurance on the decedent's life when the homicide is unintentional even though it is the result of such gross negligence as would render the killer criminally guilty of involuntary manslaughter.
 
2) These principles apply not only to the killer but to those claiming through or under him.
 
3) The disposition of a criminal cause is not conclusive of the character of the homicide or of the criminal agency of the putative killer in a civil proceeding concerning [**393] entitlement to assets of the decedent.
 
a) It is not dispositive that no criminal prosecution was brought against the alleged killer, or that charges against him were dismissed on constitutional, statutory or procedural grounds or otherwise, or that, upon a criminal trial he was found not guilty for whatever reason, or was convicted[***11] of murder in the first or second degree or of manslaughter.
 
b) In the determination of who is entitled to the assets of the decedent, whether the alleged killer was the criminal agent and whether the homicide was intentional and felonious or unintentional is a function within the ambit of the civil proceeding. In short, the lack of or result of a criminal proceeding is not res judicata in a subsequent civil action.

   III

   It is not disputed that Pearl killed her mother and that under the criminal law she was guilty of first degree murder in that the homicide was "wilful, deliberate and premeditated."£ Md.Code (1957, 1982 Repl.Vol.) Art. 27, § 407. Were this the posture of the case, it is clear that under the "slayer's rule" adopted by the Price-Chase-Schifanelli trilogy, Pearl would be precluded from sharing in the estate of her victim; her conduct would be both felonious [*113]and intentional.  But in addition to the fact that Pearl was the criminal agent of a first degree murder, it is also undisputed that at the time the crime was committed, she was not criminally responsible by reason of insanity. n4£ In short, she stands as guilty of murder in the first[***12] degree but insane. See generally Pouncey v. State, 297 Md. 264, 465 A.2d 475 (1983) (Criminal defendant can be found both guilty of the crime and insane at the time of its commission).  The question is, therefore, what impact does the fact that Pearl was "insane" at the time she committed the crime have on the "slayer's rule" established by Price-Chase-Schifanelli?

n4 According to facts stipulated before us, Pearl is confined in Crownsville Hospital Center.  Psychiatric evaluations of her "indicate that she suffers from schizophrenia of the paranoid type and is a seriously disturbed individual who probably will never recover from her present condition."

   The Maryland Legislature has substantially changed the definition and consequences of "criminal insanity" from the concept of the common law evidenced by the M'Naghten-Spencer rule.  See Acts 1967, ch. 709; Acts 1970, ch. 407; Acts 1982, ch. 21; Acts 1984, ch. 501; see also, Pouncey v. State, supra; Langworthy v. State, 284 Md. 588, 399 A.2d 578[***13] (1979), cert. denied, 450 U.S. 960, 101 S.Ct. 1419, 67 L.Ed.2d 384 (1981); Spencer v. State, 69 Md. 28, 13 A. 809 (1888); Young v. State, 14 Md.App. 538, 288 A.2d 198 (1972). The M'Naghten-Spencer test of responsibility for criminal conduct came to be expressed as whether the accused had the capacity and reason to distinguish between right and wrong and understand the nature and consequences of his acts as applied to himself.  Bradford v. State, 234 Md. 505, 510, 200 A.2d 150 (1964). Under this test, mens rea cannot exist without sanity.  In other words, insanity as defined under M'Naghten-Spencer "involves the mens rea or intent which is an essential element of the offense which the State must prove."£ Id. at 514, 200 A.2d 150. It follows that if an accused is found to be insane under that test, he must be acquitted for he did not have [*114] the requisite intent so as to make his conduct criminal, and thus could not be said to have committed a crime.

   The statutory definition of "criminal insanity" which supplanted the M'Naghten-Spencer test, is, as in effect today and at the time Pearl murdered her mother, that
 
[a] defendant is not criminally[***14] responsible for criminal conduct if, at the time of that conduct, the defendant, because of a mental disorder or mental retardation, lacks substantial capacity:
 
[**394] (1) To appreciate the criminality of that conduct; or
 
(2) To conform that conduct to the requirements of law. n5£ Md.Code (1982, 1985 Cum.Supp.)£ § 12-108 (a) of the Health-General Article.
 
We have declared that, unlike a finding of insanity under the M'Naghten-Spencer test, under the statutory test
 
the clear legislative intent regarding the successful interposition of a plea of insanity is not that an accused is to be found not guilty of the criminal act it was proved he committed, but that he shall not be punished therefor.  Langworthy , 284 Md. at 598, 399 A.2d 578.
 
We noted in Langworthy that a finding that a defendant was insane at the time of the commission of the crime under the statutory test did not mean that there was no crime thereby establishing a lack of mens rea.  We thought that neither prong of the test "is necessarily at variance with a general intent to commit a crime."£ Id. at 599 n.12, 399 A.2d 578 (citation omitted).  We applied these views[***15] in Pouncey v. State, 297 Md. 264, 465 A.2d 475. In that case a mother drowned her child and was convicted of first degree murder and found to be insane at the time of the commission of the crime.  We declared that a criminal defendant may be found guilty but insane. Id. at 269, 465 A.2d 475. We explained that
 
 [*115] a finding of insanity is not tantamount to an absence of mens rea, or inconsistent with a general intent to commit a crime.  In drowning her child, the [mother] specifically intended to kill him, n[6] and while her successful insanity defense means that she is not criminally responsible for her conduct, that determination merely relieves her of liability for punishment under the criminal law. No criminal sentence may ever be entered on the guilty verdict in this case and the appellant, therefore, does not stand 'convicted' of the murder offense in the traditional sense of the criminal law. Id. at 269-270, 465 A.2d 475.
 
The comments of the Governor's Task Force to Review the Defense of Insanity, which proposed the legislation enacted by Acts 1984, ch. 501, support this view. With respect to the test for insanity set out in §[***16] 12-108(a) of the Health Article, the Task Force commented:
 
The traditional theory that an insanity defense if proved means that the defendant was mentally incapable of forming criminal intent is not an established fact under the definition of criminal responsibility in § 12-108 of [the Health-General Article].  '. . . as presently defined, neither prong of the insanity defense -- either lack of capacity "[t]o appreciate the criminality of one's conduct" [§ 12-108(a)(1) of this title] or the lack of capacity "[t]o conform that conduct to the requirements of law" [§ 12-108(a)(2) of this title] -- is necessarily inconsistent with general criminal intent.  Second, the volitional prong -- the lack of capacity "[t]o conform one's conduct to the requirements of law" [§ 12-108(a)(2) of this title] -- does not necessarily affect the person's ability to form a particular specific criminal intent.' Code (1982, 1985 Cum.Supp.)£ Task Force Comment following § 12-109 of the Health-General Art. at p. 110 (emphasis in original).
 
[*116] In light of this, the reason for the procedure to be followed upon receipt of a plea of not guilty and an additional[***17] plea of "not criminally responsible by reason of insanity" -- Health-General Art., § 12-109(a)(2); Md.Rule 4-242(a) -- is readily apparent.  Section 12-109(c) provides:
 
If the trier of fact finds that the State has proved beyond a reasonable doubt [**395]that the defendant committed the criminal act charged, then, if the defendant has pleaded not criminally responsible, the trier of fact separately shall find, by a preponderance of the evidence, whether the defendant was at the time criminally responsible or not criminally responsible by reason of insanity under the test for criminal responsibility . . . .
 
This provision, according to the Task Force, merely clarifies the current state law.  "[T]he trier of fact first determines whether the State proved beyond a reasonable doubt all the elements of the crime.  The determination is made before considering the plea of not criminally responsible."£ Code (1982, 1985 Cum.Supp.)£ Task Force Comment to § 12-109(c) of the Health-General Art. at p. 110.  The Task Force adds: "If the [trier of fact] finds the defendant not guilty, there is no determination made of the plea of not criminally responsible."£ Id.£ We[***18] discussed in Pouncey the effect of a determination that a defendant was not criminally responsible. We said:
 
The legislature, however, has not seen fit to remove all consequences of committing a criminal act while insane, e.g., the defendant may be held in a mental institution until it is determined that a release would not constitute a danger to the individual or to the person or property of others. . . .  There is thus no support for the view that noncriminal collateral consequences are in all circumstances inconsistent with guilty but insane verdicts.  297 Md. at 270, 465 A.2d 475 (citation omitted).
 
This view is also supported by the Task Force.  Its Comment to § 12-108(a) setting out the test for "insanity" is that the test is phrased to make clear
 
[*117] to the defendant, the jury, and to society that the defendant remains morally and personally responsible for committing criminal acts, but the State does not hold a defendant subject to criminal punishment, if this test is met. Code (1982, 1985 Cum.Supp.)£ Task Force Comment to § 12-108 of the Health-General Art. at p. 108.

n5 This is in substance the definition spelled out in Acts 1970, ch. 407. Acts 1982, ch. 21 and Acts 1984, ch. 501 made no material change applicable in the context of the discussion here.

[***19] 

n6 The evidence at the trial disclosed that the mother drowned her child because she believed that the devil was pursuing him and that the only way to prevent him from going to hell was to kill him.  Pouncey v. State, 297 Md. 264, 265, 465 A.2d 475 (1983).

   IV

   Pearl Rose Ford went to trial before a jury in the Circuit Court for Anne Arundel County on pleas of not guilty and "not guilty by reason of insanity."£ While the jury was deliberating its verdicts (four days were consumed before the case went to the jury) she "moved to enter a plea of not guilty by reason of insanity."£ The court accepted the plea and took the case from the jury.  A docket entry reads that Pearl "waived right to jury in open Court" and reflects the verdicts rendered by the judge in these words:
 
Finding: That there was sufficient evidence to establish the defendant's guilt if sane.  That the defendant is not guilty by reason of insanity.
 
The court committed her to the Department of Health and Mental Hygiene for examination and evaluation and subsequently ordered that she be treated on an in-patient basis[***20] at Crownsville Hospital Center until further order. n7£ Although the verdicts as rendered could have been better expressed in light of the existing law, we are satisfied that to all intent and purpose, they were in accord with the required procedure as the equivalent of "Guilty of murder in the first degree" and "Not criminally responsible by reason of [*118] insanity under the test for criminal responsibility."£ In other words, the verdicts were, in effect, albeit [**396] not literally, "guilty" and "insane."£ A judge is assumed to know the law.  State v. Babb, 258 Md. 547, 550-551, 267 A.2d 190 (1970); Lapides v. Lapides, 50 Md.App. 248, 252, 437 A.2d 251 (1981). Here, the appropriate verdicts consistent with the judge's findings were "guilty" and "insane," and we so consider them.  The subsequent disposition of Pearl by the judge is in accord with this view. n8

n7 Pearl Rose Ford noted an appeal to the Court of Special Appeals from the judgment entered in her criminal trial.  She questioned the propriety of the judgment, however, only on a narrow procedural ground.  She contended that the court erred in denying her motion to dismiss the indictment for violation of former Rule 746, which required that a trial date be set not later than 180 days after the appearance of counsel.  The Court of Special Appeals affirmed the judgment in an unreported per curiam opinion, Ford v. State, No. 144, September Term, 1984, filed 5 November 1984.  No petition was submitted to this Court for the issuance of a writ of certiorari.

[***21] 

n8 We noted in Langworthy v. State, 284 Md. 588, 599 n. 12, 399 A.2d 578 (1979), cert. denied, 450 U.S. 960, 101 S.Ct. 1419, 67 L.Ed.2d 384 (1981), that after the M'Naghten-Spencer test was jettisoned by the legislature of Maryland, a "reference to 'not guilty by reason of insanity' [was] a holdover from common law concepts and prior statutory provisions regarding insanity and the commission of crimes."

   The Governor's Task Force to Review the Defense of Insanity recommended avoiding the terms "insane" and "insanity."£ It recognized, however, that they "are legal terms that convey long-understood concepts of the law" so that there is "unpreventable carryover" of them.  Md.Code (1982, 1985 Cum.Supp.)£ Task Force Comment to § 12-109 of the Health General Art. at p. 109.

   V

   The orderly way for the civil proceeding in the circuit court n9 to be conducted in circumstances comparable to those here would be for the claimant to establish prima facie his entitlement to the property by proving the validity of the will and his designation as legatee.  Then the burden would shift to the person[***22] protesting his claim.  The protester would attempt to prove by a preponderance of the evidence that the claimant had killed the testator and that the homicide was felonious and intentional, so that under [*119] the slayer's rule the claimant would be excluded from the distribution of the estate.  The claimant would defend against this by evidence refuting his guilt of felonious and intentional homicide or by establishing that, if he did commit it, at the time of its commission, he lacked the capacity to appreciate the criminality of his conduct or to conform that conduct to the requirements of law because of a mental disorder or mental retardation.  The judge would then make the necessary findings of fact, apply the applicable law, and render a decision.

n9 Instead of a direct appeal to the Court of Special Appeals a party may appeal to the circuit court for the county from a final judgment of an orphans' court.
 
The appeal shall be heard de novo by the circuit court.  The de novo appeal shall be treated as if it were a new proceeding and as if there had never been a prior hearing or judgment by the orphans' court.  The circuit court shall give judgment according to the equity of the matter.  Md.Code (1973, 1984 Repl.Vol.) § 12-502(a) of the Courts and Judicial Proceedings Article.

[***23]

   In the case sub judice the validity of the will was established by its admission in probate, and the entitlement of Pearl was prima facie shown by her designation in the will as a beneficiary. It was undisputed that Pearl was the criminal agent in the first degree murder of her mother and that at the time of the matricide she was criminally insane. The judge presiding at the civil proceeding accepted those facts as undisputed.  He recognized that he was not bound by the verdicts of the criminal court.  Then he went astray however.  He believed that because Pearl was criminally "insane" at the time of the killing, no crime was committed.  He correctly observed that Pearl had been indicted for murder in the first degree.  That the charge entailed willfulness, deliberation and premeditation, and that in order to prove those elements "the State must prove that the Defendant had 'the actual intent, the fully formed purpose to kill'. . . ."£ But then he said that "[i]nsanity involves the mens rea or intent, which is an essential element of a crime."£ He concluded: "Mrs. Ford, who was insane at the time of the killing, was incapable of forming the requisite intent for first[***24] degree murder."£ It is clear that this conclusion was based solely on the fact that Pearl lacked substantial capacity to appreciate the criminality of her conduct or to conform that conduct to the requirements of law. In other words, the judge believed that the fact that a person was criminally [**397] insane, as now defined, at the time of the commission of an offense was necessarily inconsistent with criminal intent. This concept led inescapably to the result [*120] that, as a matter of law, no crime was committed. n10£ While this view may have been sound when criminal responsibility was tested under the M'Naghten-Spencer standard, it is not correct under the present standard.  As we have seen, now it is encumbent upon the judge to find as a fact by a preponderance of the evidence whether the killer intended to kill. Of course, the lack of or result of criminal proceedings, although not necessarily dispositive of a subsequent civil proceeding, has probative value as a factor to be considered.  In any event, the judge, on the incorrect premise that Pearl was legally incapable of the requisite intent by reason of her mental condition, deemed that her conduct was [***25]unintentional, and looking to Schifanelli v. Wallace, 271 Md. 177, 315 A.2d 513, decided that her conduct did not preclude her from receiving a share under her mother's will. n11

 n10 There is nothing in the record before us to support a factual finding that Pearl did or did not intend to kill her mother.  The record before us does not include a transcript of the criminal proceedings.  The record from the orphans' court gives no help in this regard nor does the transcript of the proceedings on appeal to the circuit court.  The reports of the psychiatric examinations made of Pearl state that she persistently denied that she had anything to do with her mother's death, merely asserting that her mother had been missing.  The reports show that she suffered delusions such as that she had been married to the movie star Omar Shariff at age seven, that Gary Coleman of television fame was her son, and that some 40 years ago her mother had poisoned her father.  The examiners were of a mind that at the time of the commission of the offense she was suffering from a mental disorder of such severity that it caused her to lack the capacity to appreciate the criminality of her conduct, or to conform her conduct to the requirements of law.

[***26] 

n11 Apparently, the judge hearing the appeal in the civil proceeding construed the verdicts in the criminal proceeding to be an outright acquittal of the murder charge.  The opinion of the civil proceeding judge ended thusly:
 
In closing, this Court wishes to make clear that it is dealing only with the case before it, i.e., a person found not guilty by reason of insanity. This Court is aware that Maryland recognizes the adjudication of a person as 'guilty but insane' and it expresses no opinion regarding whether such person may inherit from her victim's estate.
 
As we see it, when this case is put in proper perspective in light of the applicable law, an opinion regarding whether a person who is guilty but insane may inherit from the victim's estate is required.  That issue is the crux of this case.

   [*121] VI

   As we have seen, for the slayer's rule to be invoked the killing must have been both felonious and intentional.  We have found that it is a function of the trier of fact in a civil proceeding regarding the entitlement of the assets of a decedent alleged to have been killed[***27] by a claimant to make an independent determination of the corpus delicti of the crime.  The trier of fact must decide on a preponderance of the evidence whether the manner of the decedent's death was homicide, whether the homicide was murder or manslaughter and whether the claimant was the criminal agent.  Unlike a criminal prosecution, the civil proceeding does not call for a determination of the degree of murder. Both first and second degree murder are per se felonious and intentional.  The civil inquiry, however, must go a step further than is necessary in a criminal prosecution if the finding is that the homicide is manslaughter. See Connor v. State, 225 Md. 543, 558-559, 171 A.2d 699, cert. denied, 368 U.S. 906, 82 S.Ct. 186, 7 L.Ed.2d 100 (1961). Then the trier of fact in the civil proceeding must ascertain whether the manslaughter was voluntary or involuntary.  Manslaughter generally, be it voluntary or involuntary, is a felony.  Code, Art. 27, § 387. See supra note 2.  But see Code, Art. 27, § 388.  Voluntary manslaughter is intentional; involuntary manslaughter is, by definition, unintentional.  Rolfes v. State, 10 Md.App. 204, 207, 268 A.2d 795 (1970).[***28] Schifanelli, 271 Md. 177, 315 A.2d 513, teaches that if the killing is unintentional it is without the [**398] ambit of the slayer's rule even though it is felonious. If the civil inquiry were to stop here, a determination that the killing was homicide, that the homicide was murder or voluntary manslaughter and that the claimant was the criminal agent would raise the bar of the slayer's rule.

   All the above determinations are to be made on the assumption that the claimant was responsible for his criminal [*122] conduct, that he was "sane" at the time of the commission of the killing. The inquiry continues, however, upon the suggestion that the killer was "insane" within the meaning of our criminal responsibility law at the time he committed the offense. n12£ The trier of fact must determine whether, at the time the claimant killed the decedent, he lacked substantial capacity to appreciate the criminality of that conduct, or to conform that conduct to the requirements of law, because of a mental disorder or mental retardation.  If the claimant were in that category, he would not be criminally responsible for the killing. It is at this point, upon a finding that the claimant[***29] was not criminally responsible for his criminal conduct, that the question we noted supra, arises, namely what impact does the fact that the claimant was "insane" at the time of the commission of the crime have on the slayer's rule.  The answer is that the slayer's rule is simply not applicable when the killer was not criminally responsible at the time he committed the homicide.

n12 By Acts 1984, ch. 501, § 2, "[t]he defendant has the burden to establish, by a preponderance of the evidence, the defense of not criminally responsible."£ Md.Code, § 12-109(b) of the Health-General Article.  Prior to the Act it was the obligation of the State to prove beyond a reasonable doubt that the defendant was sane.

   Our decision in Schifanelli supports the propriety of this view.  In that case we held that the slayer's rule did not apply to bar a killer when the homicide was involuntary manslaughter and therefore unintentional, even though the felon was sane, fully responsible for his criminal conduct and convicted [***30]and punished therefore.  Certainly a killer who is not responsible for his criminal conduct and as a matter of public policy cannot be punished, is no more culpable than a killer under the circumstances of Schifanelli.

   Our view is not in conflict with the maxims which support the slayer's rule which we have judicially adopted.  The rule is based upon principles of equity, justice and morality and on a broad ground of the public policy of the common law. [*123] Chase v. Jenifer, 219 Md. at 567, 150 A.2d 251; Price v. Hitaffer, 164 Md. at 511, 516-518, 165 A. 470. Equally a matter of equity, justice and morality and a reflection of public policy is the present enlighted definition of criminal insanity under which punishment for the commission of a crime is prohibited.  The terms of that definition simply make the maxims prompting the rule -- no one shall be permitted to profit by his own fraud, to take advantage of his own iniquity, or to acquire property by his own crime -- inappropriate when a person is criminally insane. A person who suffers a mental disorder or is mentally retarded and falls under the cognitive and volitive components of the criminal responsibility[***31] statute does not, by the very terms of those components, act with an unfettered will.  His conduct is controlled and his will is dominated by his mental impairment.  Fundamentally, a killing is "felonious" when the homicide is a felony.  In the frame of reference of the slayer's rule, however, the legislative policy regarding criminal responsibility leads to a qualification of this meaning.  We believe that for a homicide to be "felonious" in the context of the slayer's rule, it must be a felony for which the killer is criminally responsible under Maryland's criminal insanity test.  Therefore, if a killer is "insane" at the time he killed, the killing is not felonious in the contemplation of the slayer's rule.  If the killing is not felonious, even though it may be intentional, the rule does not apply.  Our view does not do violence to the broad public policies inherent in both the rule and the criminal insanity statutes.  On the contrary, [**399] it furthers the principles of equity, justice and morality recognized by both the rule and the statutes.

   The result that we reach is in complete accord with the decisions of our sister states which have addressed the problem.  Forty-three[***32] other states have adopted by legislative enactment a slayer's rule comparable in effect to our rule, and several have embraced such a rule through its case law. See Appendix A.  We find that the courts in only 16 of those states, however, have construed the rule, in rendering a decision or by way of obiter dictum, in light of [*124] the killer's insanity. See Appendix B.  But each and every one of those courts have reached the same result -- the slayer's rule does not operate to bar a killer who, at the time of the commission of the homicide, was insane. It appears that there is unanimity in the result, even though there is no uniformity in the manner of reaching it.  For example, some of the courts, especially in those jurisdictions which apply the M'Naghten definition of insanity, reason that under that test a person found to be insane is, in fact, acquitted of the criminal charge.  Since he was not guilty of committing the homicide, the rule is not invoked.  A popular reason given is that under the definition of insanity applicable, be it M'Naghten's or one predicated upon a mental disease, defect or disorder, a killer within that definition could not entertain[***33] the requisite intent to make his act criminal so that the homicide was not intentional or unlawful or felonious. In some of the states in which the slayer's rule speaks in terms of a "conviction" and the insanity statute permits a verdict of guilty but precludes the imposition of punishment, as does ours, the courts have concluded that since no criminal sentence may be entered on the guilty verdict, there is no judgment in the criminal cause and the killer does not stand "convicted." n13£ Therefore, the killer is not within the ambit of the rule.  One court simply looked to the "humane rule that an insane killer is not a murderer" as overriding the maxim against a wrongdoer profiting from an intentional wrong.  See Appendix B under "Illinois."£ The short of it is that the courts in other states which we find have addressed the matter have unanimously held for a variety of reasons and upon various tests for criminal insanity that a person who is not responsible for his criminal act at the time of its commission is without the purview of a slayer's statute or rule, which, regardless of [*125] the way it is phrased, in its effect precludes a killer from being enriched by reason[***34] of his criminal conduct. The common thread running through all the cases is that permitting the insane killer to share in the distribution of his victim's assets is consistent with the common law principle of equity which prompted the adoption of a slayer's rule in the first place.

n13 We said in Pouncey v. State, 297 Md. 264, 269-270, 465 A.2d 475:
 
No criminal sentence may ever be entered on the guilty verdict in this case [where the second verdict was 'insane'] and the [slayer], therefore, does not stand 'convicted' of the murder offense in the traditional sense of the criminal law.

   We reach the same conclusion as did the circuit court but by a different route.  Even though the court below did not march to the beat of the same drummer as do we in arriving at a decision, it is the judgment of the court that we review, not the reasons set out in its opinion, even though they may be incorrect.  We hold that the slayer's rule does not operate to preclude Pearl Rose Ford from inheriting under[***35] the will of her victim, Muriel L. Holland.  The judgment of the Circuit Court for Anne Arundel County is affirmed. 

   JUDGMENT AFFIRMED; COSTS TO BE PAID BY GEORGE BENJAMIN FORD, JR.

   APPENDIX A
 
Slayer's Statutes
 
Ala.Code § 43-8-253 (1982 Repl.Vol.);
 
Alaska Stat. § 13.11.305 (1979);
 
Ark.Stat.Ann. § 61-230 (1971 Repl.Vol.);
 
[**400] Ariz.Rev.Stat. § 14-2803 (1975, Cum.Supp.1985);
 
Cal.Probate Code § 250 (West 1956, Cum.Supp.1986);
 
Colo.Rev.Stat. § 15-11-803 (1973);
 
Conn.Gen.Stat. § 45-279 (1985);
 
Fla.Stat. § 732.802(1) (1976, Cum.Supp.1986);
 
Ga.Code Ann. § 53-4-6 (1982);
 
Hawaii Rev.Stat. § 560:2-803 (1976 Repl.Vol.);
 
Idaho Code § 15-2-803 (1979);
  
Ill.Ann.Stat. Ch. 110 1/2, § 2-6 (1978, Cum.Supp.1986);
 
[*126] Ind.Code Ann. § 29-1-2-12.1 (Burns 1972, Cum.Supp.1986);
 
Iowa Code Ann. § 633.535 (West 1964);
 
Kan.Stat.Ann. § 59-513 (1983);
 
Ky.Rev.Stat. § 381.280 (Bobbs-Merrill 1972);
 
La.Civ.Code Ann. art. 966 (West 1975);
 
Me.Rev.Stat.Ann. tit. 18-A, § 2-803 (1981);
 
Mich.Comp.Laws Ann. § 700.251 (1980, Cum.Supp.1986);
 
Minn.Stat.Ann. § 524.2-803 (West 1975, Cum.Supp.1986);
 
Miss.Code[***36] Ann. § 91-1-25 (1972);
 
Mont.Code Ann. § 72-2-204 (1985);
 
Neb.Rev.Stat. § 30-2354 (1985);
 
Nev.Rev.Stat. § 134.007 (1986);
 
3B N.J.Stat.Ann. 7-1 (1983);
 
N.M.Stat.Ann. § 45-2-803 (1978);
 
N.C.Gen.Stat. § 31A-4 (1984);
 
N.D.Cent.Code § 30.1-10-03 (1976 Repl.Vol.);
 
Ohio Rev.Code Ann. § 2105.19 (Page 1976, Cum.Supp.1985);
 
Okla.Stat.Ann. tit. 84 § 231 (1970, Cum.Supp.1985);
 
Or.Rev.Stat. § 112.465 (1985);
 
20 Pa.Cons.Stat.Ann. § 8801 (Purdon 1975);
 
R.I.Gen.Laws § 33-1.1-1 (1984);
 
S.C.Code Ann. § 21-1-50 (1977);
 
S.D.Codified Laws Ann. § 29-9-1 (1984);
 
Tenn.Code Ann. § 31-1-106 (1984 Repl.Vol.);
 
Tex.Prob.Code Ann. § 41(d) (Vernon 1980);
 
Utah Code Ann. § 75-2-804 (1978);
  
Ver.Stat.Ann. tit. 14 § 551(6) (1974);
 
Va.Code § 55-401 (1986 Repl.Vol.);
 
Wash.Rev.Code § 11.84.010 (1985);
 
W.Va.Code § 42-4-2 (1982 Repl.Vol.);
 
[*127] Wis.Stat.Ann. § 852.01 (2m) (1971, Cum.Supp.1985); and
 
Wyo.Stat. § 2-14-101 (1980).

   APPENDIX B

   Alabama -- Although Alabama does not specifically address the issue of insanity, its Supreme Court quotes from a South Dakota case wherein[***37] the rule was cited as: "We think that the principle of sound public policy which demands that a sane, felonious killer should not profit by his crime should be applied as often as and whenever any claim is made by such killer, whether under contract, will or statute."£ Weaver v. Hollis, 247 Ala. 57, 22 So.2d 525, 527 (1945) (quoting DeZotell v. Mutual Life Insurance Co., 60 S.D. 532, 245 N.W. 58, 65 (1932) (emphasis added)).  The Weaver case was one of first impression in Alabama, hence, various foreign precedents were examined, including Price v. Hitaffer, 164 Md. 505, 165 A. 470 (1933). The Alabama court held that a husband, convicted of second degree murder, could not take an intestate share of his deceased wife's estate.  The Alabama legislature later passed a slayer's statute precluding from taking one who "feloniously and intentionally kills the decedent."£ Ala.Code § 43-8-253 (1982 Repl.Vol.).

   California -- The California Court of Appeal specifically addressed the effect of a slayer's insanity in Estate of Ladd, 91 Cal.App.3d 219, 153 Cal.Rptr. 888 (1979). The slayer-mother was found guilty of the murder in the first degree of her two sons [***38] and insane at the time of the crimes' commissions.  [**401] The mother was committed to a state institution for treatment.  The issue on appeal was whether the mother was precluded from inheriting from her deceased sons' estates premised upon the California slayer's statute.  The applicable statute precluded inheritance by one who "unlawfully and intentionally caused the death of the decedent. . . ."£ (Note -- the statutory language has since been changed to one "who feloniously and intentionally kills the decedent. . . ."£ Cal.Probate Code § 250(a) (West 1956, [*128] Cum.Supp.1986).)£ "Specifically, the court must determine what effect the Legislature intended a finding of insanity under Penal Code section 1026 n[1] to have on the issue of whether a person 'unlawfully and intentionally' caused the death of a decedent" under the slayer's statute.  91 Cal. App.3d at 223. After reviewing the legislative history of their slayer's statute, the court observed that "[i]nferably, the Legislature based these classifications [of slayers] on the mental state or culpability of the person who caused the death of a decedent, or on the punitive value of [the slayer's statute]."£ [***39]Id. at 225.

 n1 The Ladd court recited the insanity defense in a footnote: "A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law."£ 91 Cal.App.3d at 226 n. 2 (citation omitted) (brackets in original).

   The Court then examined the procedure at the criminal trial and concluded that despite the finding of guilt, there was no "conviction" for purposes of the slayer's statute.  A "conviction" under the slayer's statute was deemed to be conclusive proof of "unlawfulness." n2£ The court avoided the finding of a "conviction" by reasoning that there was no judgment pronounced thereafter; instead, the defendant was deemed to be insane and committed to a state hospital.  Such action was construed to be an "acquittal" for purposes of the slayer's statute.  Id. at 225. The court further reasoned that[***40] such a conclusion was consistent with the purpose of the insanity test; that is, determining who should not be held criminally responsible. Id. at 226. Insane persons are not of sound mind, and, accordingly, cannot act "intentionally" for purposes of the slayer's statute.  Id.

n2 As previously noted, the Legislature later substituted the term "feloniously" for "unlawfully."

   Colorado -- Although the Colorado courts have not specifically addressed the plight of an insane slayer, they have noted certain exceptions to slayer's statutes, including the [*129] situation wherein "the person who committed the homicide was insane at the time. . . ."£ Strickland v. Wysowatcky, 128 Colo. 221, 250 P.2d 199, 200 (1952) (citations omitted).  Factually, the case concerned a slayer-husband convicted of voluntary manslaughter. The husband was allowed to take because the statute in force at that time spoke only to first and second degree murder. (It has since been amended to include manslaughter, see[***41] Colo.Rev.Stat. § 15-11-803 (1973).)

   Florida -- In Hill v. Morris, 85 So.2d 847 (Fla.Sup.Ct. 1956) the court addressed the following issue: "[W]hether or not a widow who has been duly acquitted, by reason of insanity, from a charge of murdering her husband is entitled as a matter of law to participate in his estate by way of dower."£ 85 So.2d at 849. The slayer's statute in force at the time precluded inheritance by "any person convicted of the murder of a decedent. . . ."£ (The legislature has since changed the statute to "a surviving person who unlawfully and intentionally kills or participates in procuring the death of the decedent. . . ."£ Fla.Stat. § 732.802(1) (1976, Cum. Supp.1986).)£ The wife was allowed to take specifically because she was not convicted, as required by the statute. "The effect of the judgment of acquittal by reason of insanity was to establish conclusively that petitioner was not guilty of the public offense with which she was charged, because as a matter of criminal law she lacked the capacity to commit the crime.  This should suffice to clear the record of [**402] such epithets as 'felonious killer' and the like, with which it is replete, [***42]and which are properly applicable only in the criminal law."£ Id. at 851 (emphasis in original).

   Illinois -- The issue of an insane beneficiary's right to take the proceeds of the deceased's life insurance policy was addressed in Blair v. Travelers Insurance Co., 30 Ill.App.2d 191, 174 N.E.2d 209 (1961). The court held that the proceeds of the policy were not forfeited if the slayer was insane, citing the "humane rule that an insane killer is not a murderer."£ 174 N.E.2d at 211 (citation omitted).  [*130] Essentially, that "rule" overrides the "maxim" against a wrongdoer profiting from an intentional wrong.

   Indiana -- In Turner v. Estate of Turner, 454 N.E.2d 1247 (1983) the Court of Appeals of Indiana permitted an insane slayer, who shot and killed his parents but was found to be not responsible by reason of insanity, to receive his intestate share of his parents' estate and insurance proceeds.  The court examined the trend of decisions permitting an insane slayer to inherit.  "In finding Allen was insane, the jury in his criminal trial determined, in essence, that Allen lacked any wrongful intent when he killed his parents.  Indeed, to quote from the applicable[***43] statute, Allen was found to lack the 'substantial capacity either to appreciate the wrongfulness of the conduct or to conform his conduct to the requirements of law' Ind.Code § 35-41-3-6(a)."£ Id. at 1252.

   The court limited itself to the verdict of not responsible by reason of insanity -- noting that such plea had been stricken by the legislature and supplanted by "guilty but mentally ill."£ Id. at 1249 n. 5. The slayer's statute was also amended to include one who is guilty but mentally ill.  See Ind.Code Ann. § 29-1-2-12.1 (Burns 1972, Cum.Supp. 1986).

   Minnesota -- In a case decided outside of the slayer's statute, a slayer-husband was permitted to take, by way of survivorship, the property he held in joint tenancy with his deceased wife.  Anderson v. Grasberg, 247 Minn. 538, 78 N.W.2d 450 (1956). The husband was deemed incompetent, hence, never tried in criminal court for his wife's shooting.

   The court noted that Minnesota adheres to "the equitable doctrine that a person should not profit by his wrong;" and, to that end, a constructive trust may be imposed.  "When the killer is insane, however, examination is necessary to determine whether the basis upon[***44] which the doctrine rests still exists."£ 78 N.W.2d at 456. The court noted that insanity is recognized as a defense against criminal punishment "because, if the perpetrator is so mentally diseased [*131] that he does not have the intent or animus in the commission of the crime, the act lacks the elements which constitute the crime the law seeks to punish."£ Id. (footnote omitted).  Furthermore, these principles apply equally in a civil case determining survivorship rights "for if his mind was so diseased that it was the disease and not his own will which caused the act to be committed, it cannot fairly be said that he has committed a wrong for which the law should upset the customary legal rights of property ownership."£ Id.

   At the time of this case, Minnesota applied the M'Naghten test for sanity. Id. at 457. See Minn.Stat.Ann. § 611.026 (West 1964, Cum.Supp.1986).  The court did not apply M'Naghten under these circumstances noting that it "would not be appropriate in this case where the defendant apparently knew that what he did was wrong, and yet it was his mental disease and not his own conscious act that caused the death of his wife."£ Id. at 460. The[***45] judicial rule enunciated in such civil proceedings was "the slayer will not be barred from taking the property where his unlawful act was the product of mental disease."£ Id. at 461. In such an instance, the equitable doctrine precluding one from profiting from his own wrong does not apply.

   Missouri -- In Eisenhardt v. Siegel, 343 Mo. 22, 119 S.W.2d 810 (1938), the Supreme Court of Missouri addressed the issue of sanity in a title dispute.  One brother, who [**403] was conceded to be insane at the time of the homicide, shot and killed his brother, thus triggering a reversion of title in certain property.  The fact of the "murder" did not preclude the reversion for the reason that the slayer was insane. The defense of insanity, per M'Naghten, eradicated the murder, i.e., since the slayer was insane there was no murder.

   New Hampshire -- In Kelley v. State, 105 N.H. 240, 196 A.2d 68 (1963) a husband convicted of first degree manslaughter was allowed to take property from his deceased wife when "the property she had at the time of her death [*132] was in substance his property and the estate he inherits from her 'is considerably less than what' he has[***46] expended for her during their marriage of ten months."£ 196 A.2d at 71. The court reasoned that the "constructive trust" is intended to prevent unjust enrichment and hence would not apply in such circumstance.  It also would not apply if the slayer was insane, (citing Anderson v. Grasberg, 247 Minn. 538, 78 N.W.2d 450 (1956)) or if the slayer had a vested interest in the property at interest.  196 A.2d at 70.

   New Jersey -- In Campbell v. Ray, 102 N.J.Super. 235, 245 A.2d 761 (1968), aff'd mem., 107 N.J.Super. 509, 259 A.2d 473 (1969), aff'd mem., 56 N.J. 52, 264 A.2d 441 (1970), the court addressed the issue of whether an insane slayer is entitled to insurance proceeds and an intestate share of her husband's estate. In answering this issue in the affirmative, the court noted that a constructive trust, applied to carry out the equitable doctrine that a person should not profit by his own wrong, is imposed to prevent unconscionability and unjust enrichment.  245 A.2d at 765. It is proper to inquire as to the doctrine's applicability if the slayer is insane. Id.
 
So in a case where one benefits from an unlawful act, such as a killing, committed without[***47] intent because of disease of the mind, it cannot be concluded that he perpetrated the act with the end in view of profitting thereby.  In such circumstances, if it was not his will that the act be perpetrated, it does not seem proper for the law to conclude that he has committed a wrong such as to bar him from receiving benefits which arise solely because of the death of an individual which in fact was not intended.
 
Id.

   New Jersey applies the M'Naghten test in determining an accused's sanity. See 2C N.J.Stat.Ann. 4-1 (1982).

   In a case decided after a slayer's statute was passed in New Jersey, an insane slayer was allowed to inherit from her husband's estate.  In re Vadlamudi Estate, 183 N.J. Super. 342, [*133] 443 A.2d 1113 (1982). The wife, who killed her husband with an ax, was found not guilty by reason of insanity. 443 A.2d at 1114. The issue was whether the killing was "intentional" under the slayer's statute.  (Note -- the current statute requires that the killing be criminal and intentional, see 3B N.J.Stat.Ann. 7-1 (1983).)£ The court held that the passage of the slayer's statute did not alter the common law approach as to insane slayers. 443[***48] A.2d at 1116. "If a homicide was accidental or committed by the beneficiary in self-defense or while legally insane, the killing was not 'intentional' for purposes of disqualifying a beneficiary from succession to property of the decedent, and recovery was permitted."£ 443 A.2d at 1116-17.

   New York -- There are several New York cases allowing the insane slayer to take.  In re Eckhardt's Estate, 184 Misc. 748, 54 N.Y.S.2d 484 (1945) is the most often cited.  Mrs. Eckhardt was acquitted of her husband's murder "upon the ground that she did not know at the time the nature and quality of her act and that at the time of the trial she was sane."£ 54 N.Y.S.2d at 485. Initially, the court cited its adherence to the equitable maxim that "[n]o one shall be permitted to profit by his own fraud, or to take advantage of his own wrong. . . ."£ Id. at 487. The surrogate judge concluded "that legally the wife committed no wrong, not knowing at the time the nature and quality of her act and that therefore she is [**404] entitled to take as a distributee."£ Id. at 490. The wife also retained title to jointly owned properties.  Again, indicating that no legal wrong had been committed[***49] by the wife, "the principle barring one from profiting from his own wrongs is inapplicable."£ Id. at 492. See also In re Estate of Wirth, 59 Misc.2d 300, 298 N.Y.S.2d 565 (1969). New York applies a somewhat modified version of M'Naghten.  See N.Y.Penal Law § 40.15 (Consol.1984).

   North Carolina -- In Quick v. United Benefit Life Ins. Co., 287 N.C. 47, 213 S.E.2d 563 (1975) the court addressed a wife's right to insurance proceeds following her conviction for involuntary manslaughter. In discussing a special [*134]drafting committee's comment it was noted that "the term 'slayer' instead of felon or murderer [is used] and [the statute] is limited to 'wilful and unlawful' killings. These latter words would prevent the statute's application to cases of involuntary manslaughter, justifiable or excusable homicide, accidental killing or where the slayer was insane."£ 213 S.E.2d at 566.

   Pennsylvania -- A wife who allegedly killed her husband, but found to be insane and hence never tried, was allowed to share in her husband's estate despite a slayer's statute.  "Letha Hoffman is insane, incapable of being tried for crime, innocent in the eyes of the law, [***50] and we conclude entitled to share presently in her husband's estate."£ Hoffman's Estate, 39 D. & C. 208, 209-10 (1940). Justice favors those who are presumptively innocent.  The Pennsylvania insanity statute, 18 Pa.Cons.Stat.Ann. § 315(b) (Purdon 1983), follows M'Naghten.

   South Dakota -- As previously indicated, herein under the Alabama heading, South Dakota's slayer's rule requires that the killer be "sane" for it to apply. DeZotell v. Mutual Life Insurance Co., 60 S.D. 532, 245 N.W. 58, 65 (1932).

   Texas -- An insane husband who shot and killed his wife was permitted to take his share of her estate and to collect the proceeds from her insurance policies. Simon v. Dibble, 380 S.W.2d 898 (Tex.Civ.App.1964). "The husband is insane, and therefore not capable of willfully taking the life of his wife."£ 380 S.W.2d at 899. Texas applies the M'Naghten test.  See Tex.Penal Code Ann. § 8.01 (Vernon 1974, Cum.Supp.1986).

   Vermont -- In In re Estate of Mahoney, 126 Vt. 31, 220 A.2d 475 (1966), in dictum, the Supreme Court of Vermont stated that the legal fiction of a constructive trust would not apply if the killer was insane. 220 A.2d at 478. The principle[***51] behind this approach is, again, that one should not profit by their own wrong, but that principle would not be applicable if the slayer was insane or had a vested interest [*135] in the property.  Id. Note -- Vermont has since passed a slayer's statute, see Ver.Stat.Ann. tit. 14 § 551(6) (1974).)

DISSENTBY: COLE

DISSENT: COLE, Judge, dissenting in which McAULIFFE, Judge, joins.

   The majority holds that one who has wilfully, deliberately and with premeditation killed another may be enriched by inheriting from the victim's estate because the killer was found not to be criminally responsible for the murder by virtue of her insanity. In light of our state's recognition that insane criminals are guilty of the crimes they commit and are personally and morally responsible for those crimes, I find the majority's position to be untenable.  I thus respectfully dissent.

   This Court adopted "the slayer's rule" in Price v. Hitaffer, 164 Md. 505, 165 A. 470 (1933), on the basis that allowing a murderer to inherit from the estate of his victim is repugnant to public policy. The Court applied the equitable rule that "no one shall be permitted to profit by his own fraud, to take advantage[***52] of his own wrong, to found any claim upon his own iniquity or to acquire property by his own crime," id. at 506 and 511, 165 A.2d 470, and held that a killer, by virtue of his murderous act, acquires no beneficial interest in the estate of his victim.  Id. at 508, 165 A.2d 470.

   [**405] As the majority recognizes in Part III of its opinion, an insane murderer who has been found to have acted with the requisite intent or mens rea has committed the crime of murder. See Langworthy v. State, 284 Md. 588, 399 A.2d 578 (1978); see also Pouncey v. State, 297 Md. 264, 465 A.2d 475 (1983). He is guilty, and his insanity neither justifies nor excuses his act.  His misdeed is equally abhorrent as a murder committed by one sane, and although the criminal consequence -- imprisonment -- will be dispensed with, the murderer has not been forgiven.

   Our legislature has clearly shown that the purpose of adjudging the killer's sanity is not to determine whether the [*136] crime will be annulled, but to determine whether the killer should be criminally punished.  Code (1982, 1985 Cum. Supp.), § 12-108 of the Health General Article, sets forth the test for insanity:[***53]

   (a) Test -- In general.  -- a defendant is not criminally responsible for criminal conduct if, at the time of that conduct, the defendant, because of a mental disorder or mental retardation, lacks substantial capacity:

   (1) To appreciate the criminality of that conduct; or
 
   (2) To conform that conduct to the requirements of the law.  [Emphasis supplied.]
 
In its comment to § 12-108(a), the Governor's Task Force to Review the Defense of Insanity states:
 
the phrase "not criminally responsible" is substituted for the phrase "not responsible" [which appeared in the former test under § 12-107] as being a more accurate statement of the defendant's status under criminal law. The Task Force recommends the adoption of this term to make clear to the defendant, the jury, and to society that the defendant remains morally and personally responsible for committing criminal acts, but the State does not hold the defendant subject to criminal punishment, if this test is met.  [Emphasis supplied.]

   The reason that the insane murderer will not be criminally punished is that "the State has determined that it cannot morally punish the defendant."£ Governor's[***54] Task Force to Review Defense of Insanity Report 30 (1984). 

   A dichotomy exists, then, between the moral responsibility of the State -- which dictates that it should not imprison the insane murderer, and the moral responsibility which society expects from its citizens -- which dictates that an insane murderer is responsible for his crime.  We recognized this dichotomy in Pouncey v. State, supra. In Pouncey, the appellant, who had drowned her son because she believed him to be pursued by the devil, was found by the trial court to be both guilty of first degree murder and insane at the time of the offense.  She appealed, alleging [*137] that the verdicts of guilty and the finding of insanity were inconsistent.  This Court rejected her claim and cited Langworthy v. State, supra, for the proposition that a defendant may be found both guilty and insane. The appellant nonetheless sought "to avoid the effect of Langworthy [and] argue[d] that because 'she was ultimately found insane, the finding of guilt was divested of legal significance for purposes of her future status as a criminal or non-criminal.'"£ 297 Md. at 268-69, 465 A.2d at 478. The appellant further argued[***55] 
 
that if she is burdened by a record of conviction of first degree murder, she will in a practical sense have been found responsible for her conduct; that the stigma of such a "conviction" punishes her for her conduct in that, among other things, it prohibits her from voting, from serving on a jury, from acquiring licenses or contracts, and also inhibits future employment opportunities since prospective employers will ascertain that she was found guilty of first degree murder.
 
Id.

   In this Court's view, however, such results were not incongruous with a finding of insanity. The Court observed:
 
[**406] [A] finding of insanity is not tantamount to an absence of mens rea, or inconsistent with an intent to commit a crime.  In drowning her child, the appellant specifically intended to kill him, and while her successful insanity defense means that she is not criminally responsible for her conduct, that determination merely relieves her of liability for punishment under the criminal law.  No criminal sentence may ever be entered on the guilty verdict in this case and the appellant, therefore, does not stand "convicted" of the murder offense[***56] in the traditional sense of the criminal law. The legislature, however, has not seen fit to remove all consequences of committing a criminal act while insane, e.g., the defendant may be held in a mental institution until it has determined that a release would not constitute a danger to the [*138] individual or to the person or property of others. § 12-114(b)(1)(ii).  There is thus no support for the view that non-criminal collateral consequences are in all circumstances inconsistent with guilty but insane verdicts.
 
Id. at 270, 465 A.2d at 478 (emphasis supplied).  Thus, the Court recognized that the civil consequences of an insane criminal's act are not controlled by the fact that the person has received dispensation from criminal punishment.

   Turning to the instant case, it is clear to me that the fact that the State cannot criminally punish an insane defendant is irrelevant to a determination of whether it is equitable for the killer to inherit from her victim.  It is one thing to say that the State should not imprison one who was insane when she committed the murder. It is quite another to say that the insane murderer can profit from her crime.  The only[***57] relevant focus here must be upon the killer's moral and personal responsibility for the crime.

   As developed in Price v. Hitaffer, supra, Chase v. Jenifer, 219 Md. 564, 150 A.2d 251 (1958) and Schifanneli v. Wallace, 271 Md. 177, 315 A.2d 513 (1974), the operation of the "slayer's rule" requires two findings: that the killing was intentional and that it was committed "feloniously."£ With respect to the first finding, our decisions in Pouncey and Langworthy, as well as the statute defining insanity, make clear that an insane person may have the intent requisite for the commission of the crime.  As to the second finding, these cases and the statute also demonstrate that an insane killer can commit a felonious act.  The majority acknowledges that a killing is felonious when the homicide committed is a felony.  As indicated by Pouncey and Langworthy, an insane person can be found to possess the requisite mens rea, and thus can be found guilty of committing a felony.  Indeed, as evidenced by our criminal responsibility statute, the existence of the crime itself is independent of a finding of insanity. The statute requires that the State prove beyond a reasonable[***58] doubt each element of the crime before the issue of insanity is addressed.  Thus, for [*139] purposes of the application of the slayer's rule, a trial judge may find that a killer did in fact commit a felony and that the homicide committed was intentional without addressing the insanity issue.

   I believe that our prior readings of the criminal responsibility statute reaffirm this conclusion.  In Pouncey and Langworthy, we stated that the legislative intent of the statute was not to negate the existence of the crime but to relieve the insane person of liability for punishment under the criminal law. Thus, a finding of insanity under the statute in no way diminishes the wrongfulness of the actor's conduct.  Rather, it merely removes the possibility of criminal sanction.  Because the actor's conduct remains wrongful notwithstanding the finding of insanity, the slayer's rule, in barring an individual from profiting from his own wrong, remains applicable.

   I realize that the insane killer committed the crime either because she could not appreciate the criminality of her conduct or because she could not conform her conduct to the requirements of the law.  But this [**407] [***59]reason for the killer's volition has no bearing upon the equitable principle embodied in the slayer's rule.  If the insane killer has intentionally killed her victim, if she has acted with the required mens rea for the crime, she is personally and morally responsible for her wrong, and equity demands that she shall not benefit from the deed.  It is repugnant to decency to say that an insane murderer can finance her rehabilitation with new found wealth from her victim's estate.

   Finally, I note that each of the cases from other jurisdictions cited by the majority is distinguishable in that no case addresses the question under an insanity law similar to Maryland law.  Most of the cases cited apply either the M'Naughten standard or a similar test and hold that the "slayer's rule" does not apply either because a finding of insanity is tantamount to an acquittal, Estate of Ladd, 91 Cal.App.3d 219, 153 Cal.Rptr. 888 (1979); Hill v. Morris, 85 So.2d 847 [*140] (Fla.Sup.Ct.1956); In re Eckhardt's Estate, 184 Misc. 748, 54 N.Y.S.2d 484 (1945), or because an insane person cannot have the requisite intent for the murder, Estate of Ladd, supra, Turner v. Estate of Turner [***60], 454 N.E.2d 1247 (Ind.App.1983); Anderson v. Grasberg, 247 Minn. 538, 78 N.W.2d 450 (1956); Kelley v. State, 105 N.H. 240, 196 A.2d 68 (1983); Campbell v. Ray, 102 N.J.Super 235, 245 A.2d 761 (1968), aff'd mem. 107 N.J. Super 509, 259 A.2d 473 (1969), aff'd mem., 56 N.J. 52, 264 A.2d 441 (1970); Quick v. United Benefit Life Ins. Co., 287 N.C. 47, 213 S.E.2d 563 (1973); Simon v. Dibble, 380 S.W.2d 898 (Tex.Civ.App.1964)). Other cases simply note that an insane killer is not a murderer, and thus the "slayer's rule" should not apply. See Blair v. Travelers Ins. Co., 30 Ill.App.2d 191, 174 N.E.2d 209 (1961); Eisenhardt v. Siegel, 343 Mo. 22, 119 S.W.2d 810 (1938); Hoffman's Estate, 39 D & C 208 (1940). In contrast, under Maryland law, a killer deemed to be insane is not acquitted of the crime, Langworthy, supra, the insane killer can be found to have the requisite intent for the crime, and the killer is in essence found to be guilty of committing that crime.  We should not blindly follow those jurisdictions which base their holdings upon standards of insanity to which our legislature has shown its express intent not to adhere. [***61]

   In conclusion, I note that because Pearl Ford should be disqualified as devisee under her mother's will, her son is the appropriate substitute legatee. Although the general rule is that a murderer's heirs cannot through the murderer take from the victim's estate, see Price v. Hitaffer, supra, 164 Md. at 506, 518, 165 A. 470 where the heir is also an heir of the victim and the natural beneficiary of victim's bounty, he is the proper substitute beneficiary. See Am.Jur.2d, Descent and Distribution § 109 (1983).  Here George Benjamin Ford, Jr., the son of the murderess, is the grandson of the victim and is the victim's only lineal descendant.  Therefore, I would hold that George is the proper beneficiary of his grandmother's estate.

   [*141] For these reasons, I would reverse the judgment of the circuit court. 

William F. ASHBURN II v. ANNE ARUNDEL COUNTY, Maryland etal. 
No. 10, September Term, 1985
 
Court of Appeals of Maryland
 
306 Md. 617; 510 A.2d 1078; 1986 Md. LEXIS 257

 July  10, 1986

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals, James C. Cawood, Judge.

DISPOSITION: JUDGMENT AFFIRMED.  APPELLANT TO PAY THE COSTS.

CORE TERMS:  duty, police officer, special relationship, driver, detain, driving, intoxicated, prisoner, drunk driver, discretionary, owed, public official, ministerial, drive, civil liability, deputy, mandatory, law enforcement, duty to protect, immunity, supplied, truck, jail, legislative intent, emergency vehicle, police officers, third person, public duty, foreseeability, affirmatively

COUNSEL: Leonard A. Orman, Baltimore, Maryland, for appellant.

   Karen A. Murphy Jensen, Assistant County Solicitor (Stephen R. Beard, County Solicitor and Robert C. Wilcox, Deputy County Solicitor, on the brief), all of Annapolis, Maryland, for appellee.

JUDGES: Smith, Eldridge, Cole, Rodowsky, Couch, McAuliffe and James C. Morton, Jr., (Retired, Specially Assigned), JJ.

OPINIONBY: COLE

OPINION: [*619] [**1079] In this case, we must determine whether a police officer may be held liable to a person injured by a drunk driver where the officer detected the driver's condition before the accident but failed to stop and detain him.

   The parties have agreed to the following facts.  On February 18, 1983, Officer Dennis Freeberger of the Anne Arundel County Police Department found John J. Millham in a pickup truck on the parking lot of a 7-11 store.  Millham was intoxicated and sitting behind the wheel of the truck with its engine running and lights on.  It is agreed [*620] that Millham was driving the [***2]vehicle and that, under Maryland law, Millham could have been charged with drunk driving.
 
   Apparently noticing Millham's condition, Officer Freeberger told Millham to pull his truck to the side of the lot and to discontinue driving that evening. As soon as Officer Freeberger left the scene, however, Millham drove the truck away from the lot, proceeded a short distance and collided with appellant, John F. Ashburn, II, a pedestrian.  Ashburn, who lost his left leg and suffered other injuries, brought suit against Millham, Officer Freeberger, Anne Arundel County and the Police Department in the Circuit Court for Anne Arundel County.  He based his claim against the latter three on the theory that the police had a mandatory duty to detain all suspected drunk drivers under Md. Code (1977, 1984 Repl.Vol.), § 16-205.1(b)(2) of the Transportation Article.  The circuit court granted appellees' Motion to Dismiss and, in an opinion and order dated October 19, 1984, held that Anne Arundel County Police Department was not a separate legal entity, that Officer Freeberger and Anne Arundel County were immune from civil suit, and that Officer Freeberger owed no special duty to appellant. Appellant[***3] filed a timely appeal.  We granted certiorari on our own motion before consideration by the intermediate appellate court.

   Appellant argues that Officer Freeberger is not immune from suit under the doctrine of public official immunity because Freeberger negligently failed to perform the mandatory (as opposed to discretionary) act of detaining a drunken driver. Appellant also argues that, under the circumstances of this case, a special duty was imposed upon Officer Freeberger to protect appellant. Appellees respond that the doctrine of public official immunity precludes suit by appellant against Officer Freeberger.  Furthermore, appellees argue, even if public official immunity is unavailable to Freeberger, the officer owed no special [**1080] duty to Ashburn to protect him from injuries sustained as a result of the [*621] accident caused by defendant Millham.  Appellees therefore maintain that the cause of action in negligence must fail.

   I

   It was generally held in American courts prior to the mid-part of this century that all public employees were liable for their own torts.  See Prosser and Keeton on Torts § 132 (W. Keeton 5th ed. 1984); 63A Am.Jur.2d Public Officers [***4]  and Employees § 358 (1984).  This Court recognized before the turn of the century, however, the importance of shielding a public officer from liability where the officer's alleged negligence arose from the performance of his job in a manner which involved judgment and discretion.  Cocking v. Wade, 87 Md. 529, 40 A. 104 (1898).

   Cocking arose from a suit against the bond of a sheriff of Charles County for the sheriff's alleged negligence in guarding a prisoner. In the face of danger to the prisoner from mob violence, the sheriff moved the prisoner first to a jail in Baltimore City and then again to a dilapidated building which had been used as a jail in Charles County.  While the prisoner was jailed in the Charles County building, a change of venue was granted, which increased unrest among the citizens of Charles County.  Although the prisoner and his counsel repeatedly asked the sheriff to move the prisoner to a safer jail, the sheriff refused. Shortly thereafter, the prisoner was taken from the jail by a group of unknown men and hanged.  This Court held that no action would lie against the sheriff by the children of the prisoner. The Court explained that the manner in[***5] which a sheriff carries forth his job function with regard to a prisoner:
 
 may often be a matter of great difficulty, and one calling for the exercise of much judgment and high degree of courage.  He will be required to take careful account of all the circumstances that surround him, estimate in cases of outside attack the forces he must encounter, and compare them with his means of defense, and after due deliberation, determine what course is best for him to [*622] pursue.  If he does this honestly, with a full purpose to perform his whole duty, even though he make a mistake whereby a prisoner is injured, it would be monstrous to hold him civilly liable for damages to such prisoner. "A public officer is not liable to an action, if he falls into error in a case where the act to be done is not merely a ministerial one, but is one in relation to which it is his duty to exercise judgment and discretion, even though an individual may suffer by his mistake.  A contrary principle would, indeed, be pregnant with the greatest mischief."
 
Id. at 541, 40 A. at 106 (citations omitted, emphasis supplied).

   Since Cocking, the rule which we have applied to tort claims[***6] against a governmental representative is that the actor will be relieved of liability for his non-malicious acts where: (1) he "is a public official rather than a mere government employee or agent; and (2) his tortious conduct occurred while he was performing discretionary, as opposed to ministerial, acts in furtherance of his official duties."£ James v. Prince George's County, 288 Md. 315, 323, 418 A.2d 1173, 1178 (1980) (emphasis in original).  See also Bradshaw v. Prince George's County, 284 Md. 294, 303, 396 A.2d 255, 261 (1970), overruled in part on other grounds in James, supra; Robinson v. Bd. of County Comm'rs, 262 Md. 342, 346-47, 278 A.2d 71, 74 (1971); Duncan v. Koustenis, 260 Md. 98, 104, 271 A.2d 547, 550 (1970); Clark v. Ferling, 220 Md. 109, 113-14, 151 A.2d 137, 139 (1959).

   We now turn to an analysis of the case sub judice.  Clearly, Officer Freeberger is a public official when acting within the scope of his law enforcement function.  See Bradshaw, supra, 284 Md. at 302, 396 A.2d at 261; Robinson, supra, 262 Md. at 347, 278 A.2d at 74. The question we must resolve, then, is whether Officer Freeberger [**1081] was[***7] acting in a discretionary capacity when he encountered the drunk driver.

   [*623] In addressing the difference between discretionary and ministerial actions, our predecessors noted in Schneider v. Hawkins, 179 Md. 21, 25, 16 A.2d 861, 864 (1940):
 
The term "discretion" denotes freedom to act according to one's judgment in the absence of a hard and fast rule.  When applied to public officials, "discretion" is the power conferred upon them by law to act officially under certain circumstances according to the dictates of their own judgment and conscience, and uncontrolled by the judgment or conscience of others.
 
Almost any action, however, may involve the use of discretion.  Thus, we noted in James, supra, 288 Md. at 327, 418 A.2d at 1180:

   When attempting to classify the particular actions of a public official, a court should be careful not to let the mere fact that decisions are made in performing the questioned task be determinative of whether liability attaches to the conduct, for "[i]n a strict sense, every action of a government employee, except perhaps a conditioned reflex action, involves the use of some degree of discretion."£ Swanson v. United [***8]  States, 229 F.Supp. 217, 219-20 (N.D.Cal.1964). Or as has been otherwise expressed: "it would be difficult to conceive of any official act, no matter how directly ministerial, that did not admit of some discretion in the manner of its performance, even if it involved only the driving of a nail."£ Johnson v. State, 69 Cal.2d 782, 447 P.2d 352, 357, 73 Cal.Rptr. 240 (1968) (en banc).  Thus, an act falls within the discretionary function of a public official if the decision which involves an exercise of his personal judgment also includes, to more than a minor degree, the manner in which the police power of the State should be utilized.  [Emphasis supplied.]
 
The James Court went on to state that in the case before it, the driving of an emergency vehicle involved only to a "minimal degree, if at all, the exercise of discretion with regard to the State's sovereignty."£ 288 Md. at 327-28, 418 A.2d at 1180. Thus, the Court held that the operation of [*624] such an emergency vehicle "is not ordinarily a discretionary act for which immunity will shield the driver from liability for negligence."£ Id. at 328, 418 A.2d at 1180-81. The driving of an emergency vehicle, [***9] as in James, however, is different from making a decision as to whether a citizen shall be apprehended.  When a police officer performs this function, he is acting in a discretionary capacity. Robinson v. Bd. of County Comm'rs, supra, 262 Md. at 347, 278 A.2d at 74.

   Appellant argues, nevertheless, that Officer Freeberger was not acting in a discretionary capacity when he encountered the drunk driver because, appellant contends, Freeberger had a mandatory (and thus purely ministerial) duty to detain the drunk driver in accordance with § 16.205.1(b)(2) of the Transportation Article, which reads:

   Except as provided in subsection (c) of this section, if a police officer stops or detains any individual who the police officer has reasonable grounds to believe is or has been driving or attempting to drive a motor vehicle while intoxicated or while under the influence of alcohol and who is not unconscious or otherwise incapable of refusing to take a chemical test for alcohol, the police officer shall:

   (i) Detain the individual;

   (ii) Request that the individual permit a chemical test to be taken of the individual's blood or breath to determine the alcohol content of[***10] the individual's blood;

   (iii) Advise the individual of the administrative penalties that shall be imposed for refusal to take the test; and

   (iv) If the individual refuses to take the test, send a sworn report to the Administration within 72 hours after the detention, that states . . . . [Emphasis supplied.]
 
[**1082] Appellant contends that this section prescribes a mandatory procedure for the handling of drunk drivers and that because Freeberger failed to carry forth this mandatory duty, he is liable for all results which flow from his error.  [*625] Appellant points to the word "shall" in § 16-205.1(b)(2), and he argues that this word placed a mandatory duty upon Freeberger to stop, detain and administer sobriety tests to Millham.  We disagree.  What appellant fails to note is that the word "shall" is preceded by the wording "if a police officer stops or detains any individual."£ We believe that this introductory clause makes clear that Freeberger was not required by § 16-205.1(b)(2) to detain Millham (under subsection (i)) or to request that Millham take a chemical test (under subsections (ii)-(iv)).

   We have stated time and again that where a statute[***11] is plain and unambiguous, we will look no further than the words of the statute to ascertain legislative intent. State v. Berry, 287 Md. 491, 413 A.2d 557 (1980); Collier v. Connolley, 285 Md. 123, 400 A.2d 1107 (1979); Mauzy v. Hornbeck, 285 Md. 84, 400 A.2d 1091 (1979); Massage Parlors v. City of Balto., 284 Md. 490, 398 A.2d 52 (1979). By the plain meaning of this statute, its directives are not invoked until the officer "stops or detains any individual."£ In Willis v. State, 302 Md. 363, 376, 488 A.2d 171, 178 (1985), we equated the phrase "stop or detain" in § 16-205.1 with the word "apprehension" ("apprehended" as used in Md. Code (1974, 1980 Repl.Vol.), § 10-303 of the Courts and Judicial Proceedings Article).  We held in Willis that "an accused is 'apprehended' when a police officer has reasonable grounds to believe that the person is or has been driving a motor vehicle while intoxicated or while under the influence of alcohol and the police officer reasonably acts upon that information by stopping or detaining the person."£ Id. Webster's Third New International Dictionary (1981) defines the verb "detain" as "to hold or keep in or as if[***12] in custody . . . to restrain especially from proceeding . . . ." n1£ [*626] The verb "stop" is defined in Webster's, in relevant part, as "to keep confined . . . to hinder or prevent the passage of . . . to close up or block off access to . . . to make impassable . . . to keep from carrying out a proposed action: hold back: RESTRAIN . . . ."

n1 We note that the word "detain" is used twice in § 16-205.1(b)(2): "if a police officer . . . detains . . . the police officer shall: (1) detain the individual."£ We do not believe that the second use of the word detain denotes a meaning different from or more restrictive than the first.  Cf. Willis v. State, supra.  Simply put, the proper interpretation of the section is: if the officer first detains (or stops) one whom he has reasonable grounds to believe is driving while intoxicated, the officer shall further detain the individual in order to carry out the procedures prescribed by the section.

   Applying the facts of this case to these definitions, it[***13] does not appear that Officer Freeberger stopped or detained the drunk driver. Here, Officer Freeberger "found" the drunk driver sitting in a truck and "told" the driver to pull to the side of the lot and to discontinue driving. Freeberger then left the scene.  Freeberger did not confine or restrain Millham.  He did not begin an investigation of Millham.  Instead, Freeberger told him to drive the car to the side of the parking lot, and then Freeberger left.  Because Freeberger did not "stop or detain" Millham, the requirements of § 16-205.1(b)(2) simply were not invoked.  Under these facts, § 16-205.1(b)(2) did not make it mandatory that Freeberger detain Millham.  Consequently, because Freeberger was acting in a discretionary capacity, he is immune from suit under the circumstances of this case.

   II

   Even if we were to assume that § 16-205.1 required Freeberger to stop or detain Millham, i.e., that the statute made Freeberger's actions ministerial, and thus nondiscretionary, appellant's cause would still fail because he did not establish that Freeberger owed him a duty in tort.  Judge McSherry stated for this Court over eighty years ago that:
 
[**1083] there can be[***14] no negligence where there is no duty that is due; for negligence is the breach of some duty that one person owes to another.  It is consequently relative and can have no existence apart from some duty expressly or impliedly imposed.  In every instance, before negligence can be predicated of a given act, back of the act must be [*627] sought and found a duty to the individual complaining, the observance of which duty would have averted or avoided the injury . . . .  As the duty varies with circumstances and with the relation to each other of the individuals concerned, so the alleged negligence varies, and the act complained of never amounts to negligence in law or in fact, if there has been no breach of duty.
 
W. Va. Central R. Co. v. Fuller, 96 Md. 652, 666, 54 A. 669, 671 (1903). Judge McSherry's comments remain viable today: negligence is a breach of a duty owed to one, and absent that duty, there can be no negligence.

   "Duty" in negligence has been 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, supra, § 53.  There is no set formula for this determination. [***15] As Dean Prosser noted, "duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection."£ Id.£ In broad terms, these policies include: "convenience of administration, capacity of the parties to bear the loss, a policy of preventing future injuries, [and] the moral blame attached to the wrongdoer . . . ."£ Id.£ As one court suggested, there are a number of variables to be considered in determining if a duty exists to another, such as:
 
the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered the injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame 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.
 
Tarasoff v. Regents of University of California, 17 Cal.3d 425, 434, 131 Cal.Rptr. 14, [***16] 22, 551 P.2d 334, 342 (1976).

   [*628] Perhaps among these the factor deemed most important is foreseeability. See id.£ However, "foreseeability" must not be confused with "duty."£ The fact that a result may be foreseeable does not itself impose a duty in negligence terms.  This principle is apparent in the acceptance by most jurisdictions and by this Court of the general rule that there is no duty to control a third person's conduct so as to prevent personal harm to another, unless a "special relationship" exists either between the actor and the third person or between the actor and the person injured.  See Lamb v. Hopkins, 303 Md. 236, 242-44, 492 A.2d 1297, 1300-01 (1985); Restatement (Second) of Torts § 315 (1965); Scott v. Watson, 278 Md. 160, 166, 359 A.2d 548, 552 (1976) ("a private person is under no special duty to protect another from criminal acts by a third person, in the absence of statutes, or of a special relationship.").

   Thus, we recognize the general rule, as do most courts, that absent a "special relationship" between police and victim, liability for failure to protect an individual citizen against injury caused by another citizen does not lie[***17] against police officers. See Davidson v. City of Westminster, 32 Cal.3d 197, 649 P.2d 894, 185 Cal.Rptr. 252 (1982); Trautman v. City of Stamford , 32 Conn.Supp. 258, 350 A.2d 782 (1975); Morgan v. District of Columbia, 468 A.2d 1306 (D.C.1983); Shore v. Town of Stonington, 187 Conn. 147, 444 A.2d 1379 (1982); Morris v. Musser, 84 Pa.Cmwlth. 170, 478 A.2d 937 (1984); Porter v. City of Urbana, 88 Ill.App.3d 443, 43 Ill.Dec. 610, 410 N.E.2d 610 (1980); Dauffenbach v. City of Wichita, 233 Kan. 1028, [**1084] 667 P.2d 380 (1983); Crosby v. Town of Bethlehem, 90 A.D.2d 134, 457 N.Y.S.2d 618 (1982); J & B Development Co. v. King County, 100 Wash.2d 299, 669 P.2d 468 (1983). Rather, the "duty" owed by the police by virtue of their positions as officers is a duty to protect the public, and the breach of that duty is most properly actionable by the public in the form of criminal prosecution or administrative disposition. See, e.g., Morgan v. District of Columbia, supra, 468 A.2d at 1311 ("duty to protect individuals from criminal conduct [*629] 'is a public duty, for neglect of which the officer is amenable to the public, and punishable by indictment[***18] only'", citing South v. Maryland, 59 U.S. (18 How.) 396, 403, 15 L.Ed. 433 (1856)); Shore v. Town of Stonington, supra, 444 A.2d at 1381-82; Chapman v. City of Philadelphia, 290 Pa.Super.Ct. 281, 434 A.2d 753, 754 (1984) (duty of city to provide police protection is a public one); see also 2 Cooley On Torts § 300, at 385-86 (4th ed. 1932) ("if the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, must be a public and not an individual injury, and must be redressed, if at all, in some form of public prosecution.").  As the District of Columbia Court of Appeals stated in Morgan v. District of Columbia, supra, 468 A.2d at 1311:
 
public officials who act and react in the milieu of criminal activity where every decision to deploy law enforcement personnel is fraught with uncertainty must have broad discretion to proceed without fear of civil liability in the "unflinching discharge of their duties."£ Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir.1949). As the Connecticut Supreme Court recognized the public interest is not served "by allowing a jury of lay[***19] (persons) with the benefit of 20/20 hindsight to second-guess the exercise of a police [officer]'s discretionary professional duty. Such discretion is no discretion at all."£ Shore v. Town of Stonington, [187 Conn. 147, 444 A.2d 1379, 1381 (1982)].

   * * *
 
[I]f the police were held to a duty enforceable by each individual member of the public, then every complaint -- whether real, imagined, or frivolous would raise the spectre of civil liability for failure to respond.  Rather than exercise reasoned discretion and evaluate each particular allegation on its own merits the police may well be pressured to make hasty arrests solely to eliminate the threat of personal prosecution by the putative victim.  Porter v. City of Urbana, supra, 88 Ill.App.3d at 445, 43 Ill.Dec. at 612, 410 N.E.2d at 612. Such a result historically [*630] has been viewed, and rightly so, as untenable, unworkable and unwise.

   Furthermore, a policy which places a duty on a police officer to insure the safety of each member of the community would create an unnecessary burden on the judicial system.  See Morgan, supra, 468 A.2d at 1311; see also Porter v. City of Urbana, supra, 43[***20] Ill.Dec. at 612, 410 N.E.2d at 612; Walters v. Hampton, 14 Wash.App. 548, 554, 543 P.2d 648, 652 (1975). Under such circumstances, the slightest error of a policeman would give rise to a potential law suit.

   Presently, the police officer is subject to disciplinary proceedings or criminal prosecution for any dereliction of duty, see Md. Code (1957, 1982 Repl.Vol.), Art. 27, §§ 727 to 734D, and these proceedings are better suited to review charges against the police officer for the breach of a duty which his job, rather than his responsibility as a member of the public, imposes upon him. Moreover, as stated by the District of Columbia Court of Appeals in Morgan, supra,
 
while public prosecution does little to console those who suffer from the mistakes of police officials, on balance, the community is better served by a policy that both protects the exercise of law enforcement discretion and affords a means of review by those who, in supervisory [**1085] roles, are best able to evaluate the conduct of their charges.
 
468 A.2d at 1312.

   A proper plaintiff, however, is not without recourse.  If he alleges sufficient facts to show that the defendant policeman[***21] created a "special relationship" with him n2 upon which he relied, he may maintain his action in [*631] negligence.  See Restatement (Second) of Torts § 315(b). This "special duty rule," as it has been termed by the courts, is nothing more than a modified application of the principle that although generally there is no duty in negligence terms to act for the benefit of any particular person, when one does indeed act for the benefit of another, he must act in a reasonable manner.  See Scott v. Watson, supra, 278 Md. at 170-71, 359 A.2d at 555; Penna R.R. Co. v. Yingling, 148 Md. 169, 129 A. 36 (1925). In order for a special relationship between police officer and victim to be found, it must be shown that the local government or the police officer affirmatively acted to protect the specific victim or a specific group of individuals like the victim, thereby inducing the victim's specific reliance upon the police protection.  See Williams v. State, 34 Cal.3d 18, 192 Cal.Rptr. 233, 664 P.2d 137, 140 (1983); Morgan v. District of Columbia, supra, 468 A.2d at 1313-15; Florence v. Goldberg , 44 N.Y.2d 189, 196-97, 404 N.Y.S.2d 583, 587, 375 N.E.2d 763, 767 (1978); [***22]Morris v. Muser, supra, 478 A.2d at 940; Chambers-Castanes v. King County, 100 Wash.2d 275, 669 P.2d 451, 458 (1983).

n2 We also note that under § 315(a) of the Restatement (Second) of Torts a duty would be imposed upon an officer to prevent physical harm caused by another to a third person where a special relationship exists between the police officer and the actor.  Such special relationships have been found as to: parent and child, master and servant, landowner and licensee, those in charge of persons with known dangerous propensities, and those who have custody of others. See Lamb v. Hopkins, 303 Md. 236, 492 A.2d 1297 (1985); Restatement (Second) of Torts §§ 316 to 320.  In order for such a relationship to be found between police and perpetrator, it must be alleged that there was some type of ongoing custodial relationship between the police officer and the actor.  Lamb v. Hopkins, supra; see Jackson v. Clements, 146 Cal.App.3d 983, 194 Cal.Rptr. 553, 555 (1983). Such was not the case sub judice.  As the court in Bailey v. Town of Forks, 38 Wash.App. 656, 688 P.2d 526, 531 (1984) noted:
 
a police officer's mere contact with an intoxicated person hardly creates the same type of relationship as exists between a psychiatrist and his patient or a custodian and his inmate . . . .  [S]uch a fleeting contact fails to rise to a "special relationship" which would justify imposing an affirmative duty of care to prevent an intoxicated person from causing harm to others.

[***23]

   Appellant argues that the circumstances of this case imposed a special duty upon Officer Freeberger and Anne Arundel County to protect appellant.  We disagree.  Appellant has alleged no facts which show that Officer Freeberger [*632]affirmatively acted specifically for appellant's benefit or that Freeberger's actions induced appellant's reliance upon him.  Although it is true that Freeberger affirmatively acted in approaching the driver and advising him to cease driving that evening, these actions on Freeberger's part created no special relationship with appellant.

   The majority of jurisdictions which have addressed the issue of special relationship under similar circumstances agree with us, that no special relationship exists between the officer and the person injured by the drunk driver. In Jackson v. Clements, 146 Cal.App.3d 983, 194 Cal.Rptr. 553 (1983), the defendant officers were called to investigate a party where alcohol was being served to minors.  The officers knew that two of the minors had been drinking, that based on their observations, the minors were too intoxicated to drive and that the minors intended to drive themselves away from the party. Nevertheless, [***24] the officers failed to detain either driver. Both drivers were involved in accidents thereafter, and the injured parties brought suit against the officers.  The Jackson court stated that the police officers owed no duty to the injured person unless a "special relationship" had been created.  The court held that no special relationship between the [**1086] victim (only one of the victims raised this issue) and the officers was created because "[t]he officers did not create the peril to [the victim], they did not voluntarily assume a duty to protect her, they made no promise or statement to induce her reliance, nor did they alter the risk to her that would have otherwise existed."£ 196 Cal.Rptr. at 556.

   The Supreme Court of Florida addressed the issue of public duty and special relationship recently in Everton v. Willard, 468 So.2d 936 (1985). In Everton, a sheriff's deputy had stopped a driver for a minor traffic violation.  The deputy recognized that the driver had been drinking alcohol, but the deputy did not charge the driver with an intoxicated driving offense.  Instead, the deputy issued the [*633] driver a citation for the traffic offense and permitted [***25]the driver to continue driving. Shortly thereafter, the driver was involved in a collision with the petitioners.  The petitioners filed suit against the driver, the deputy, the sheriff's department and the county.  The court stated:
 
There has never been a common law duty of care owed to an individual with respect to the discretionary judgmental power granted to a police officer to make an arrest and to enforce the law.  This discretionary power is considered basic to the police power function of governmental entities and is recognized as critical to a law enforcement officer's ability to carry out his duties . . . . We recognize that, if a special relationship exists between an individual and a governmental entity, there could be a duty of care owed to the individual.
 
Id. at 938. The court found no special relationship on the facts before it.

   Similarly in Crosby v. Town of Bethlehem, 90 A.D.2d 134, 457 N.Y.S.2d 618 (1982), the court held that where an off-duty police officer observed and talked to an intoxicated guest of the officer's next door neighbor, and the officer later observed the guest drive away, neither the officer nor other officers alerted by[***26] the off-duty officer owed any special duty to a pedestrian struck and killed by the driver. See also Evers v. Westerberg, 38 A.D.2d 751, 329 N.Y.S.2d 615 (1972) (where officer who investigated accident scene failed to take drunk driver into custody, and drunk driver drove away and killed plaintiff's decedant, municipality owed no special duty to decedant).

   In Bailey v. Town of Forks, 38 Wash.App. 656, 688 P.2d 526 (1984), a police officer responded to an altercation involving a driver whom the officer knew or should have known was drunk.  Instead of detaining the driver, the officer ordered him to leave the area.  The court discussed the "public duty" doctrine and declared that it would find a "special relationship" in any given case where:
 
[*634] (1) There is some form of privity between the police department and the victim that sets the victim apart from the general public and (2) there are explicit assurances of protection that give rise to reliance on the part of the victim.
 
688 P.2d at 529. The court noted that neither factor was present before it and held that there was no special relationship created between the police officer and the victim. [***27]

   Appellant cites Irwin v. Town of Ware, 392 Mass. 745, 467 N.E.2d 1292 (1984) to support its position that a special relationship had been created here.  In Irwin, town police officers stopped a driver who was apparently intoxicated and then allowed the driver to continue driving. The driver later negligently caused a head-on collision, killing several members of a family.  The Supreme Judicial Court of Massachusetts, over a strong dissent, found a special relationship under the facts before it between the police officer and the victims.  The court based its holding upon the foreseeability of the consequences of the police officer failing to detain the drunk driver as well as the fact that the state's statutes dealing with intoxicated persons "evidence a legislative intent to protect both intoxicated [**1087] persons and other users of the highway."£ 467 N.E.2d at 1304.

    Appellant urges us to follow Irwin and to hold that § 16-205.1(b)(2) of the Transportation Article evinces the intent of our legislature to impose civil liability upon a police officer who fails to comply with the section.  We do not see that the legislature intended § 16-205.1 to provide a civil[***28] cause of action for third parties injured by drunk drivers, and we decline to so hold. The purpose of § 16-205.1(b)(2) clearly is to set forth procedures for a police officer who has stopped or detained a driver whom he believes to be intoxicated. Our statutory provisions concerning drunk driving embody a legislative intent "to discourage [*635] persons from drinking and driving, to enable law enforcement officers to identify those who drink and drive, and to afford certain rights to drivers who disclaimed that they were driving while drunk."£ Willis v. State, supra, 302 Md. at 374, 488 A.2d at 177. Of course, the underlying concern of the statutes is the safety of the public.  In order to impose a special relationship between police and victim, and thereby to create a duty in tort, however, a statute must "set forth mandatory acts clearly for the protection of a particular class of persons rather than the public as a whole."£ Morgan, supra, 468 A.2d at 1314 (quoting Cracraft [v. City of St. Louis Park], supra, 279 N.W.2d [801] at 807 [1979]; emphasis supplied); see Florence v. Goldberg, 44 N.Y.2d 189, 404 N.Y.S.2d 583, 375 N.E.2d 763 (1978)[***29] (where police regulations set forth procedures to be followed in supervision of crosswalks and police assigned guards to crosswalk, police voluntarily assumed "special relationship" with special class of persons -- school children).

   We believe that if the legislature intended to impose civil liability upon a policeman who failed to comply with § 16-205.1(b)(2), it would have so stated. Cf.£ Md.Code (1957, 1984 Repl.Vol.), §§ 19-101 and 19-102 of the Transportation Article (imposing civil liability upon police officer for damages and injuries caused by officer directing driver of motor vehicle to assist him in enforcing law or commandeering vehicle used in roadblock).  Because there was no special relationship created by Freeberger's acts or by statute, Officer Freeberger owed no duty in tort to appellant.

   Accordingly, we shall affirm the judgment of the circuit court.

   JUDGMENT AFFIRMED.

   APPELLANT TO PAY THE COSTS. 

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Bruce WidenorHAUPT 
Misc. Docket (Subtitle BV) No. 12, September Term, 1981,Misc. Docket (Subtitle BV) No. 11, September Term, 1984
 
Court of Appeals of Maryland
 
306 Md. 612; 510 A.2d 590; 1986 Md. LEXIS 252

 July  1, 1986

   SUBSEQUENT HISTORY: [***1]

   Motion for Reconsideration Denied August 21, 1986.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County, H. Chester Goudy, Jr., 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 BV 15 c, FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST BRUCE WIDENOR HAUPT.

CORE TERMS:  suspension, disbarred, neglect, mitigation, cocaine, drug addiction, adverse party, divorce case, alcoholism, disbarment, suspended, idiosyncrasy, indefinite, addiction, sexual

COUNSEL: Melvin Hirshman, Bar Counsel, for Attorney Grievance Commission of Maryland, for petitioner.

   Jerome T. May, Esquire, Annapolis, Maryland, for respondent.

JUDGES: Murphy, C.J., and Smith, Cole, Rodowsky, Couch and McAuliffe, JJ.

OPINIONBY: RODOWSKY

OPINION: [*613] [**591] Respondent, Bruce Widenor Haupt (Haupt), was admitted to the Bar of this Court on June 23, 1973.  He was also admitted to the Bar of the District of Columbia.  This disciplinary proceeding involves the third and fourth petitions in this State charging Haupt with professional misconduct.

   We suspended him for thirty days in Montgomery County Bar Association v. Haupt, 277 Md. 326, 353 A.2d 629 (1976). At the end of a high speed automobile chase of the adverse party in a divorce case, Haupt had entered[***2] a private home uninvited and directly confronted the adverse party. We suspended him for ninety days in Attorney Grievance Commission v. Haupt, 285 Md. 39, 399 A.2d 1350 (1979), for misrepresentation to a jailer.  In order for the female friend of one of Haupt's clients to visit the client in a lockup, Haupt represented the woman to be his legal assistant.  Haupt has never been reinstated in Maryland.  Following the 1979 suspension he moved his office from Silver Spring to the District of Columbia.

   The instant proceeding consolidates two petitions, one filed in 1981 and the other in June of 1984.  Resolution of these petitions was delayed because Bar Counsel could not [*614] serve Haupt until October 1985.  The petitions are respectively based on determinations by the District of Columbia Court of Appeals in two separate proceedings.  In re Haupt, 422 A.2d 768 (D.C.App.1980) resulted in respondent's suspension from practice in the District of Columbia for three years.  Haupt had neglected a divorce case and then lied to Bar Counsel of the District of Columbia when that official investigated the client's complaint.

   The District of Columbia Court of Appeals disbarred[***3] respondent in In re Haupt, 444 A.2d 317 (D.C.App.1982). The violations therein described which involve thirteen different clients reveal a pattern of taking fees in advance and then neglecting the client's matter.

   Maryland Rule BV 10 e 1 provides that "[a] final adjudication . . . of a judicial tribunal that an attorney has been guilty of misconduct is conclusive proof of the misconduct."£ Applying that rule to the charges in Maryland, Judge H. Chester Goudy, Jr. of the Circuit Court for Anne Arundel County found that Haupt had violated Disciplinary Rules 1-102(A)(4) and (5), 2-106(A), 2-110(A)(2), 6-101(A)(3), 7-101(A)(1) and (2), 7-106(C)(6), and 9-102(B)(4).

   Repeated serious neglect warrants disbarment. See Attorney Grievance Commission v. Sherman, 297 Md. 318, 465 A.2d 1161 (1983) and Maryland State Bar Association v. Phoebus, 276 Md. 353, 347 A.2d 556 (1975).

   In mitigation Haupt testified that during the late 1970's he had become addicted to cocaine and did not manage his life.  In October 1985 he completed a thirty day Veterans Administration rehabilitation program in Richmond, and he currently attends meetings of the Washington, D.C. Chapter of Cocaine Anonymous [***4]which he says he helped found.  Haupt's counsel specifically asked Judge Goudy to find that Haupt's addiction was "the cause of his behavior as a lawyer."£ Judge Goudy found that Haupt's "new found dependence on cocaine resulted in tension in his marriage, neglect of his law practice, and an intensification of his sexual idiosyncrasy towards transvestism."

   [*615] In this Court Haupt excepts to the failure of Judge Goudy to find that the "addiction [**592] had a profound impact upon all aspects of his life" and submits that the proper sanction is an indefinite suspension.

   In Attorney Grievance Commission v. Willemain, 297 Md. 386, 395, 466 A.2d 1271, 1275 (1983), we acknowledged that "[w]e have looked at the shortcomings of attorneys in a somewhat different light where we have concluded that the acts giving rise to the charges against an attorney have resulted to a substantial extent from the physical and mental maladies the attorney was suffering, particularly where alcoholism was involved."£ See also Attorney Grievance Commission v. Nothstein, 300 Md. 667, 685, 480 A.2d 807, 816 (1984). A number of factors distinguish the case before us from those in which mitigation[***5] of the type described in Willemain, supra, resulted in an indefinite suspension, with or without special conditions for reinstatement.  Here, although requested to do so, Judge Goudy did not find that the pattern of neglect was solely, or even substantially, due to drug addiction. Indeed, causation in this case is not at all clear.  Haupt's other problems, manifested by, but perhaps not limited to, his "sexual idiosyncrasy" help to confuse the picture. n1£ Unlike Attorney Grievance Commission v. Flynn, 283 Md. 41, 387 A.2d 775 (1978), where the attorney had a long record of excellent service to clients which changed dramatically as a result of his succumbing to alcoholism, Haupt's professional conduct was unacceptable before he discovered cocaine. Haupt did not present any medical records or expert opinion evidence to Judge Goudy.  Nor do the reported opinions of the Court of Appeals of the District of Columbia reflect that Haupt advanced drug addiction in mitigation there.  None of the cases in which we have, because of medical reasons, [*616] imposed some form of suspension for conduct otherwise calling for disbarment involved an attorney who had been disbarred in[***6] another jurisdiction for the same conduct.

n1 After the hearing before this Court Haupt furnished us with a self-composed, forty-four page supplemental memorandum which opens by discussing whether the biblical prophet Ezekial saw flying saucers.

   For these reasons we overrule Haupt's exceptions.  We shall order that Bruce Widenor Haupt be disbarred and that his name be stricken from the rolls of those authorized to practice law in this State.

   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 BV 15 c, FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST BRUCE WIDENOR HAUPT. 

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. John BaconWRIGHT 
Misc. (Subtitle BV) No. 14, September Term, 1985
 
Court of Appeals of Maryland
 
306 Md. 93; 507 A.2d 618; 1986 Md. LEXIS 228

 May  2, 1986

   PRIOR HISTORY: [***1]  
Circuit Court for  Anne Arundel  County, Raymond G. Thieme, Jr. Judge.

DISPOSITION: PETITION DISMISSED.  COSTS TO BE PAID BY ATTORNEY GRIEVANCE COMMISSION OF MARYLAND.

CORE TERMS:  excessive, tenant, skill, legal fee, surviving, hourly rate, reasonableness, savings, inheritance tax, legal services, time spent, decedent, spent, required to perform, legal service, legal fees, inflated, computation, tabulation, contingent, accounting, one-third, deducting, billing, hourly, advise, modest, legal work, clerical, Disciplinary Rule

COUNSEL: Melvin Hirshman, Bar Counsel and Glenn M. Grossman, Assistant Bar Counsel for the Attorney Grievance Commission of Maryland, for petitioner.

   Ronald A. Baradel, Esquire of Annapolis, Maryland for respondent.

JUDGES: Murphy, C.J., and Smith, Cole, Rodowsky, Couch and McAuliffe, JJ.  Cole, Judge, concurring.

OPINIONBY: RODOWSKY

OPINION: [*95] [**618] This attorney discipline proceeding concerns both the use of an hourly rate in billing for legal services and the ethical restraints on that method of billing.

   The Attorney Grievance Commission (the Commission), through Bar Counsel, petitioned this Court for disciplinary action against John Bacon Wright (Wright), a member of the Maryland bar since June 28, 1949.  The principal accusation was that Wright had violated Disciplinary Rule (DR) 2-106(A) by charging a clearly excessive fee for his work in closing two joint savings accounts and in paying therefrom the collateral inheritance taxes due by his clients.  Pursuant to Maryland Rule BV 9(b), we submitted the matter to Judge [***2]Raymond G. Thieme, Jr. of the Circuit Court for Anne Arundel County for an evidentiary hearing.  Judge Thieme found that the Commission failed to prove misconduct by clear and convincing evidence.  Although our analysis differs from that of [**619] the trial judge, we shall dismiss the petition for the reasons given below.

   Wright, in his capacity as counsel to the special administrator of a decedent's estate, had on September 1, 1983, gained access to, and inventoried the contents of, the decedent's safe deposit box at an Annapolis savings and loan association.  Among the contents were passbooks for the two joint savings accounts at that institution which are involved here.  On one account the owners by survivorship were Howard E. Armiger and Dorothy M. Bosley.  The owners of the other account were Louise M. Deale and Charles E. Armiger.  Wright took custody of the two passbooks and on September 2 wrote to the two sets of surviving joint tenants. He informed each set of what he then believed to be the balance in their respective accounts, $9,975.11 as to the Bosley-Howard Armiger account and $10,084.81 as to the Deale-Charles Armiger account.  The letter advised that a ten[***3] percent inheritance tax was payable on one-third of the account balance.  Each letter then concluded identically as follows:

   [*96] We can arrange to have this account retitled in your two joint names, if you wish; or with your authority under a Limited Power of Attorney which we will prepare it can be closed out, the applicable tax and legal fees paid and separate $4,650.00 checks individually mailed to each of you.
 
None of the clients testified before Judge Thieme, but it is undisputed that each chose to have Wright handle the matter.  When Wright deducted $300 as his legal fee from the remittance to each of the four clients, their reaction caused Wright to prepare and send a typewritten tabulation explaining to the clients his method of determining the fee charged. n1£ It read:

                  Legal time to close joint savings accounts
     Date                             Item                             Time
9-1-83          Inspection of decedent's
                safe deposit box and in-
                ventorying her joint sav-
               ings accounts                                       1.4
9-2-83          Letter to each joint sav-
               ings account owner                                  1.2
9-12-83         Preparation and mailing
                Limited Power of Attor-
                ney to each joint sav-
               ings account owner                                  1.8
9-13-83         Preparation and mailing
                Application to Fix Inher-
                itance Tax for each joint
               savings account                                     1.4
9-19-83         Closing each account at
                Vermont Federal Sav-
                ings and Loan Associa-
                tion (successor to Capi-
                tal City Federal Savings
                & Loan Association) and
                receiving final checks to
                be deposited in special
                trustee account for dis-
               bursement                                           3.2
9-23-83         Letter to each joint ac-

                count owner with final
               check                                               1.0
Future          Payment of applicable
time            10% Maryland inheri-
                tance tax on joint ac-
                counts to Orphans'
                Court for Anne Arundel
                County; answering ques-
                tions from each account
               owner                                               2.0
                    Total time                                    12.0 hours

 [***4]
 
[*97] Wright's position is that the foregoing tabulation is accurate and that he was entitled to bill at his usual rate of $100 per hour for all of this time.

n1 At the hearing before Judge Thieme, Wright was not asked to, and did not on his own initiative, produce any time records of original entry.

   DR 2-106(A) provides that "[a] lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee."£ Factors which bear on the reasonableness of a fee are enumerated in DR 2-106(B) which reads:
 
(B) A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee.  Factors to be considered as guides in determining the reasonableness [**620] 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.
 
(2) [***5] 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 the ability of the lawyer or lawyers performing the services.
 
[*98] (8) Whether the fee is fixed or contingent.
 
   At the evidentiary hearing, Bar Counsel produced three attorneys who opined that Wright's fee was clearly excessive, and Wright produced three attorneys who opined that the fee was reasonable.  Judge Thieme made the following fact-findings:

   Inflated accounting of time spent on Complainants' behalf.

   One of the factors to be weighed in determining whether a legal fee is clearly excessive is the time and labor required of the attorney to perform the tasks involved.  Both the Petitioner's and Respondent's witnesses at the hearing conceded that the Respondent's hourly fee of $100 was reasonable. [***6] However, the testimony revealed the considerably contrasting opinions of the expert witnesses of the Petitioner and the Respondent regarding the reasonableness of the Respondent's accounting of the time he spent working for the Complainants.  Disregarding for the moment the Petitioner's allegation that the labor expended by the Respondent was unnecessary (discussed below), the Petitioner and its witnesses contended that the Respondent's accounting of his time spent working on behalf of the Complainants was inflated. Specifically, they considered the time purportedly spent by the Respondent on preparing the Limited Powers of Attorney, preparing the Applications to Fix Inheritance Tax, and the closing of the joint accounts -- 1.8 hours, 1.4 hours, and 3.2 hours, respectively -- inflated and excessive.

   On the other hand, the Respondent's expert witnesses, each of whom certainly qualifies as "a lawyer of ordinary prudence" under DR 2-106(B), deemed the time spent by the Respondent on behalf of the Complainants to be reasonable.  In reaching their conclusions, the Respondent's experts considered the adaptations that had to be made to each Limited Power of Attorney form, the time necessary [***7]to perform the limited arithmetic to compute [*99] the respective inheritance taxes, and the delay at the Savings and Loan Association caused by the bank's personnel confirming the Respondent's authority to act.

   The burden is on the Bar Counsel to prove misconduct by clear and convincing evidence.  Bar Association of Baltimore City v. Marshall, 269 Md. 510, 516, 307 A.2d 677, 681 (1983); Maryland Rule BV 10(d).  In view of the facts testified to at the hearing and the well-reasoned but conflicting opinions of the respective expert witnesses produced by the Petitioner and the Respondent, the Court cannot find that this burden has been met.
 
Difficulty of and skill required to perform the legal services involved, and duty to inform Complainants that they do not require the services of an attorney .

   Other factors to consider in deciding whether a legal fee is clearly excessive [**621] include the difficulty of the services rendered and the degree of skill required to perform such services properly.  Here again, the opinions of the parties' respective experts were polar opposites again regarding not only whether the Respondent employed the best procedure in closing[***8] the two joint accounts by utilizing Limited Powers of Attorney, but the witnesses also disagreed as to whether the Complainants even needed the assistance of legal counsel, and if not, whether the Respondent was obligated to so inform them.

    The Petitioner urges the Complainants were totally without need for the Respondent's services, since the Complainants, with proper identification and proof of the decedent's passing, could have retitled the joint accounts or withdrawn funds therefrom on their own.  The Petitioner's experts further testified that the computation of the applicable inheritance tax was sufficiently simple for the Complainants to have performed the arithmetic and paid the taxes themselves.  Most significantly, the Petitioner alleged that, at a minimum, the Respondent should have informed the Complainants that his services were not required by them, and only then should the Respondent [*100]have allowed the Complainants to decide whether they wished to retain him.  As Abel Merrill, Esquire, one of the Petitioner's experts, testified:
 
". . . But I think what's missing in our discussion here is the full knowledge of the client as to what's involved.  A lawyer[***9] has superior knowledge as to what's necessary and what's not.  And I think there would first have to be full disclosure to the client as to what's necessary and what's not . . .
 
I read Mr. Wright's letter [of September 2, 1983] which didn't mention that the accounts could have been closed by each individual account owner . . ."

   The Respondent countered the Petitioner's allegations by contending that his use of the Limited Powers of Attorney was an acceptable method of proceeding. As William A. Franch, Esquire, testified on behalf of the Respondent:
 
". . . Mr. Wright used a perfectly acceptable standard in his method of closing out the accounts.  There are any number of ways in which this can be done . . . any of which . . . which have been referred to in the testimony here to today [sic] . . . are perfectly acceptable."

   In response to the Petitioner's contention that the Complainants did not need the services of an attorney, William Mitchell, Jr., Esquire, after being qualified as an expert, testified as follows:
 
". . . [W]hen you have to pay the tax on one-third for the decedent, and you have two other people, you divide it into sixths.  A lot of[***10] people don't understand that.  And I think it does need a lawyer, or someone who knows about it to tell them.  Mr. Wright had to do the calculations . . ."

   Mr. Mitchell further testified that it would have been unwise for the Respondent to advise the Complainants that they did not need the assistance of legal counsel:
 
". . . Well, I don't think it's very safe advice . . .  I sat here and listened to that contention by the Petitioner [*101] that the Complainants should have been told that they did not need an attorney and I wondered if the malpractice carriers would like you to advise clients that they can do things themselves.  I will say there's a possibility that this can be done by you.  But I'm not sure.  I'm not going to tell you to do [sic] out and do it yourself . . ."

   Although the Petitioner argued that the Respondent was under an affirmative obligation to inform the Complainants that they could have closed the joint accounts themselves, he could cite no support for this proposition; namely, that an attorney must advise his client of all possible methods of proceeding. Moreover, [**622] the Court is unaware of any such authority.  Finally, the foregoing[***11] must be considered in view of the facts that one of the Complainants -- Louise M. Deale -- was an employee of a Savings and Loan Association and thus familiar with the requisites for closing a joint account; that Ms. Deale discussed this matter with her co-complainants, and that the Complainants nevertheless elected to retain the services of the Respondent.

   In light of the conflicting perceptions of the undisputed facts by the Petitioner and the Respondent, and the equally conflicting opinions of the witnesses testifying at the hearing, all of whom the Court knows to be attorneys of impeccable reputation, the Court cannot conclude that the conduct of the Respondent was in violation of any Disciplinary Rule.

   Whether Wright actually devoted to the various tasks involved the amount of time presented in his tabulation is a credibility issue which was for the trial judge to decide.  We cannot say that Judge Thieme's findings of fact on that aspect of the case are clearly erroneous.  For the same reason, we shall not disturb Judge Thieme's finding that an hourly rate of $100 for an attorney of Mr. Wright's experience is a reasonable rate for his services when legal knowledge and skill[***12] are required.  But the fallacy in the analysis employed below lies in ending the inquiry with the product [*102] of rate and time.  DR 2-106(B) sets forth the principal factors to be considered as guides in determining the reasonableness of a fee.  As quoted above, these include, in addition to time and labor, the novelty and difficulty of the questions involved, the skill required to perform the legal service properly, the results obtained, and the "likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer."

   The result obtained for the clients in this case was to close two joint accounts at the same thrift institution, on behalf of two persons as to each account, and to pay the collateral inheritance tax of ten percent on the portion of each account which passed by operation of law to the surviving joint tenants. The thrift, Wright's office, the four surviving joint tenants, and the tax collector all have Annapolis addresses.  The level of legal skill required for the services rendered by Wright was modest indeed.  The services involved here are commonly performed by nonprofessionals -- in small law[***13] offices by secretaries and in larger firms by paralegals -- without detailed direction and under minimal supervision by way of review of the final product.

   The degree of responsibility assumed by Wright, other than as a pure custodian, was also modest. Each account's balance was approximately $10,000. In round figures the total theoretical tax exposure of any one client was approximately $167, so that the fee charged each was almost twice the tax.  As a practical matter there was no risk of an adverse result to any client because only a simple multiplication was involved.  Even then an error in computing the tax liability reported could be cured without loss because the after tax funds, less fee, were disbursed to the clients and not to third parties.

   The theory underlying the use of time records and hourly rates for the billing of legal services is that the resultant bill will be a reasonable one within the range established by the governing factors set forth in DR 2-106(B). [*103] The Appellate Court of Illinois, in a recent case involving legal fees in a probate matter, described the use of hourly rates in the following fashion:
 
Under the alternative computation[***14] method, the fee awarded is premised upon the number of hours spent on the case and the attorney's hourly billing rate.  These factors are viewed as reflecting the other considerations enumerated above [i.e., the DR 2-106(B) factors].  Adjustments in the amount so determined may be made to reflect any special circumstances in the case, and the hourly rate may be varied for different attorneys and different activities . . . .  Regardless of the [**623] method used for computation, however, the time expended is a very important factor in determining the amount of recovery, but the decision should not be based solely on the basis of a multiplication of the hourly rate by the time claimed to have been spent. [Estate of Healy v. Tierney, 137 Ill.App.3d 406, 409-410, 484 N.E.2d 890, 893 (1985).]

   A frequently cited case which sets forth twelve factors to be considered in determining the reasonableness of legal fees is Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974). The first factor listed is the time and labor required, as to which the court said:
 
It is appropriate to distinguish between legal work, in the strict sense, and investigation, [***15] clerical work, compilation of facts and statistics and other work which can often be accomplished by non-lawyers but which a lawyer may do because he has no other help available.  Such non-legal work may command a lesser rate.  Its dollar value is not enhanced just because a lawyer does it. [Id. at 717.]

   Although decided in the era of bar association fee schedules and suggested minimum fees, In re Estate of Bacheller, 437 S.W.2d 132, 140 (Mo.Ct.App.1968) illustrates a principle which remains valid today.  That court said:

   It appears from the testimony of Mr. Potter that much of the time for which he claimed compensation at $25.00 an hour, in fact represented the performance of clerical [*104] functions which normally would have been performed by his secretary or the executrix and in acting as messenger boy in carrying checks to the bank, in wrapping and mailing items of jewelry, silver, etc., which were the subjects of the specific bequests in the will, and other routine and nonprofessional services.  The attorney is not entitled to fees at professional legal rates for time spent in such menial endeavors.
 
And see In re Estate of Larson, 103 Wash.2d[***16] 517, 531, 694 P.2d 1051, 1059 (1985) ("Moreover, an attorney is not entitled to fees at professional legal rates for tasks that should be performed by staff, such as depositing checks in a bank.").

   Measured solely by the level of legal knowledge, skill, and experience required and responsibility assumed to render the services involved here, a $1,200 fee among the four clients was clearly excessive.

   In substance what occurred here is that the surviving owners of the two accounts employed Wright, essentially as a convenience, to do that which they could have done themselves.  Under those circumstances Judge Thieme rested his analysis entirely on an approach which valued Wright's services by the rate which Wright can command for his time when rendering substantial legal service. An analogous concept is that the person who chooses to rent a Cadillac in order to get from point A to point B should pay the hire of a Cadillac even though that person could get from point A to point B in a compact car.  In the relation of attorney and client, however, if a fee for work requiring only modest legal ability is to be based on the higher value of more complex legal work which the attorney[***17] is capable of performing, but which he is unable to perform because of the employment, then DR 2-106(B)(2) requires some kind of effective disclosure to the client as part of the terms of the [*105]engagement. n2£ One way for an attorney to disclose that, in effect, the fee will not be on a quantum meruit basis, is to have a special contract with the client.

n2 Under the Maryland Model Rules of Professional Conduct, to be effective January 1, 1987, Rule 1.5(b) will provide that "[w]hen the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation."

   Although there was no express, hourly rate contract in this case, there was a special contract.  It is evidenced by the letters dated September 2, 1983, to the surviving joint tenants. As to the Bosley-Howard [**624] Armiger account, Wright's letter referred to a balance of $9,975.11.  After deducting [***18]a tax of $332.50, computed according to the directions therein contained (10% of 1/3), the balance would be $9,642.61, so that each joint tenant's share was $4,821.31, or $171.31 more than the $4,650 which Wright stated in the letter he would disburse to each.  That $171.31 per each of those two clients is the legal fee effectively quoted to them by Wright.  Wright's letter to the owners of the Deale-Charles Armiger account stated the balance to be $10,084.81.  After deducting an inheritance tax of $336.16, the difference between each tenant's share and the promised distributions of $4,650 reflects a legal fee of $224.33 per surviving tenant on that account.

   In actuality, Wright deducted $300 from the distribution to each tenant. On the Bosley-Howard Armiger account that is an increase of seventy-five percent over what he said he would charge, and on the Deale-Charles Armiger account that is an increase of thirty-three and one-third percent.

   Wright's September 2 letters did not present the net distribution, and thereby the fee, simply as an estimated figure.  Nor was a quoted fee in any way contingent on the after tax amount ultimately determined to be the balance in [***19]the respective account. n3£ Where the attorney and client [*106] have a special fee arrangement they may, after disclosures appropriate to the existing confidential relationship, agree on a modification of that arrangement, but there was no modification here.  Even if we interpret Wright's deduction of $300 from each tenant's share as a request by him for client approval of an increased fee, the complaints made by the clients manifest a refusal to agree. Thus, Wright violated the Disciplinary Rules by continuing to hold monies in excess of the fee which he told the clients he would charge and to which they agreed.

 n3 The disbursement checks drawn on Wright's escrow account and any letters covering transmittal of those checks are not in the record.  It nevertheless appears from orphans' court records in evidence that inheritance tax was paid as to the Deale-Charles Armiger account on a principal balance of $10,648.28 and as to the Bosley-Howard Armiger account on a principal balance of $10,532.45. Wright's September 2, 1983, letters were written before accrued interest was determined.  On these revised figures the net distribution to each client exceeds the $4,650 stated by Wright in his September 2 letters, even after deducting a $300 per client legal fee. Because the fee was not contingent, the increase in the net distribution actually made is immaterial.

[***20]

   The difficulty is that the violation most probably is of DR 9-102(B)(4) which provides:
 
A lawyer shall
 
. . . .
 
(4) Promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.
 
The charges filed against Wright and the case as tried by Bar Counsel did not embody this theory.  For that reason the petition must be dismissed.  See In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968).

   PETITION DISMISSED.  COSTS TO BE PAID BY ATTORNEY GRIEVANCE COMMISSION OF MARYLAND.

CONCURBY: COLE

CONCUR: COLE, Judge, concurring.

   The majority opinion is a sterling admonition to counsel to charge a fee commensurate with the legal services rendered.  However, it is not a review of the case presented to, [*107] argued before, and decided by Judge Thieme. The issue before Judge Thieme was whether the fees charged by the respondent under the circumstances described were clearly excessive and unreasonable.  As proof of each side's position, three eminent and outstanding members of the Bar testified.  Judge Thieme was unpersuaded by either side, and[***21] he thus concluded that Bar Counsel had not met his burden.  The issue for us is simple: were Judge Thieme's conclusions clearly erroneous?  We cannot say that they were, and [**625] for this reason, we should affirm the judgment.  Hence, I concur. 

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Bernard BETTIS 
Misc. Docket (Subtitle BV) No. 27, September Term, 1984
 
Court of Appeals of Maryland
 
305 Md. 452; 505 A.2d 492; 1986 Md. LEXIS 202

 March  5, 1986

   PRIOR HISTORY: [***1]  
Circuit Court for  Anne Arundel  County, Raymond G. Thieme, Jr., 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 BV15c, FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST BERNARD BETTIS.

CORE TERMS:  disbarment, extenuating circumstances, funds received, personal use, own use, disciplinary, accomplished, entrusted, guardian, handling, notice

COUNSEL: Melvin Hirshman, Bar Counsel and Walter D. Murphy, Jr., Assistant Bar Counsel, for the Attorney Grievance Commission, for petitioner.

   No Appearance on Behalf of Respondent.

JUDGES: Smith, Eldridge, Cole, Rodowsky, Couch, McAuliffe, JJ., and Charles E. Orth, Jr., Associate Judge of the Court of Appeals (retired, Specially Assigned).

OPINIONBY: McAULIFFE

OPINION: [*453] [**492] A Petition for Disciplinary Action was filed against Bernard Bettis on February 8, 1985.  Bettis was served with a summons, and with copies of the petition and discovery documents, but failed to respond. n1£ Following entry of an order of default and the giving of notice thereof to the respondent, Judge Raymond G. Thieme conducted a hearing on October 2, 1985, at which respondent did not appear.

n1 Service upon the respondent was accomplished by a private person in Arlington, Virginia, and affidavits evidencing service were properly filed. Affidavits were also filed by a person identifying himself as Chester B. Smith, who contended that service had been made upon him rather than upon Bettis. Respondent has not filed any challenge to the service of process.  Judge Thieme found from the evidence of record that proper service was made on the respondent, and we accept this finding.

[***2]

   The findings of fact made by Judge Thieme, to which no exception was taken, show that Bettis is guilty of multiple violations of disciplinary rules arising out of his handling of two separate matters.  We summarize the findings in each. 

   The Lunsford Guardianship

   On February 5, 1976, the Superior Court of District of Columbia appointed Bettis as successor guardian of the estate of five minor children of Zelda Lunsford, deceased.  At that time, Bettis was a member of the bar of this State and of the District of Columbia, and maintained an office for the practice of law in Silver Spring, Maryland.  Thereafter, and until his removal as guardian in January of 1979, [*454] Bettis converted [**493] to his own use funds received for the benefit of the estate, filed a false statement of account with the Superior Court of the District of Columbia, failed to maintain records of disbursements of estate funds, and commingled estate funds with his own.

   The conversion of estate funds was accomplished by the failure to deposit in the guardianship account funds received for the benefit of the children, and by more than twenty separate withdrawals of funds from the account for the personal [***3] use of the respondent.  The total defalcation amounted to more than $8,500.00 at one point, although respondent's final indebtedness to the estate was reduced in December of 1978 by his return of $7,050.00 to the account.

   Judge Thieme found, and we agree, that by this conduct Bettis violated DR 1-102(A)(3), (4), and (6) (engaging in conduct involving dishonesty and moral turpitude, and conduct prejudicial to the administration of justice); DR 7-102(A)(5) (knowingly making a false statement of fact); DR 9-102(A) (commingling of funds); and DR 9-102(B)(3) (failure to maintain complete records of funds of a client coming into an attorney's possession).

   The Glaspie Case

   In October of 1981 Willie Glaspie retained Bettis to represent him in an appeal from a finding of paternity and order for payment of support.  Bettis filed a timely order for appeal, instructed Glaspie not to make support payments, and took no further action in the matter.  Two months later the Court of Special Appeals dismissed the appeal because it had not been perfected. Although notice of the dismissal was sent to Bettis, he failed to notify Glaspie, or to instruct him to resume support payments.  In June[***4] of 1982 Glaspie was found in contempt for non-payment of support and detained in the Prince George's County jail until payment of the amount in arrears.

   We agree with Judge Thieme's findings that this conduct constituted violations of DR 6-101(A)(3) (neglect of a legal [*455] matter entrusted to him) and DR 7-101(A)(2) (failure to carry out a contract of employment entered into with a client).

    Sanction

   Disciplinary proceedings brought against the respondent in the District of Columbia and based upon the same allegations of misconduct resulted in respondent's disbarment by consent.  Section 17 of Rule XI of the Rules Governing the Bar of the District of Columbia is similar to Maryland Rule BV12, and provides that an attorney consenting to disbarment while charges are pending against him acknowledges the truth of the material facts and his inability to successfully defend against them.

   We repeat what Judge Digges said for the Court in Bar Ass'n. v. Marshall, 269 Md. 510, 519, 307 A.2d 677 (1973):
 
[I]t is essential that all members of the legal fraternity be strongly and constantly impressed with the truism that in handling moneys and properties belonging to[***5] their clients or others that they accept them in trust and are strictly accountable for their conduct in administering that trust, so they dare not appropriate those funds and properties for their personal use. The misappropriation by an attorney of funds of others entrusted to his care, be the amount small or large, is of great concern and represents the gravest form of professional misconduct.  Balliet v. Balto. Co. Bar Ass'n., 259 Md. 474, 479, 270 A.2d 465 (1970); In the Matter of Lombard, 242 Md. 202, 218 A.2d 208 (1966); In Re Williams, 180 Md. 689, 23 A.2d 7 (1941).
 
In the absence of extenuating circumstances disbarment is the appropriate sanction for an attorney converting the funds of a client to his own use. Attorney Griev. Comm'n. v. Velasquez, 301 Md. 450, 459, 483 A.2d 354 (1984); Attorney Griev. Comm'n. v. Boehm, 293 Md. 476, 481, 446 A.2d 52 (1982); Attorney Griev. Comm'n. [**494] v. Pattison, 292 Md. 599, 609, [*456] 441 A.2d 328 (1982); Attorney Griev. Comm'n. v. Burka, 292 Md. 221, 225, 438 A.2d 514 (1981). We find no extenuating circumstances in this case, and direct that the name of Bernard Bettis be stricken from the[***6] rolls of those authorized to practice law in this State.

   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 BV15c, FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST BERNARD BETTIS. 

A.H. ROHRBAUGH v. ESTATE OF Charlotte A. STERN 
No. 28, September Term, 1985
 
Court of Appeals of Maryland
 
305 Md. 443; 505 A.2d 113; 1986 Md. LEXIS 196; 63 A.L.R.4th893

 February  28, 1986

   PRIOR HISTORY: [***1]  
Certiorari to the Circuit Court for  Anne Arundel  County, Morris Turk, Judge.

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REMAND THE CASE TO THE DISTRICT COURT FOR ENTRY OF JUDGMENT NOT INCONSISTENT WITH THIS OPINION.  COSTS TO BE EQUALLY DIVIDED BETWEEN THE PARTIES.

CORE TERMS:  withheld, security deposit, reasonable basis, landlord, threefold, punitive damages, clearly erroneous, entire amount, treble damages, withhold, tenant, statutory provision, termination, withholding, preceding, apartment, ambiguity, statutory language, landlord-tenant, modify, personal representative, plus accrued interest, scope of review, recodification, accompanied, incorrectly, wrongfully, italicized, calculated, modified

COUNSEL: Robert A. Rohrbaugh, Rockville, Maryland, for appellant.

   Stuart R. Cohen (Charles H. Dorsey, Ilene J. Jacobs and Marcia Conrad, Legal Aid Bureau, Inc., on the brief), all of Baltimore, Maryland, for appellee.

JUDGES: Murphy, C.J., and Smith, Eldridge, Cole, Rodowsky, Couch and McAuliffe, JJ.

OPINIONBY: MURPHY

OPINION: [*445] [**114] Maryland Code (1981 Repl.Vol.), § 8-203(f)(4) of the Real Property Article, provides that "[i]f the landlord, without a reasonable basis, fails to return any part of the security deposit, plus accrued interest, within 45 days after the termination of the tenancy, the tenant has an action of up to threefold of the withheld amount, plus reasonable attorney's fees." n1£ We granted certiorari to resolve an ambiguity in this statutory provision: whether the amount subject to treble damages is the entire amount withheld[***2] by the landlord or only the amount withheld without a reasonable basis.

 n1 Unless otherwise indicated, all statutory provisions cited in this opinion are within the Real Property Article.

   I.

   From July 1981 until her death in May 1983, Charlotte Stern resided in an apartment she rented from A.H. Rohrbaugh.  [*446] The lease required a security deposit of $675, and this sum was duly paid by Stern.  Shortly after Stern's death, Rohrbaugh inspected the apartment accompanied by Linda Greenberg, Stern's daughter and the personal representative of Stern's estate.  By letter dated June 3, 1983, Rohrbaugh notified Greenberg that he intended to withhold the entire security deposit to cover alleged damage to the apartment, unpaid rent, and certain other costs.

   On December 16, 1983, Greenberg, as the personal representative of Stern's estate, sued Rohrbaugh in the District Court of Maryland in Anne Arundel County, seeking return of the security deposit plus punitive damages as provided by § 8-203(f)(4).  On January[***3] 22, 1984, Rohrbaugh counterclaimed for damages in excess of the security [**115] deposit. The District Court concluded that Rohrbaugh was entitled to withhold only $587.50 of the security deposit, and that the balance of the security deposit had been withheld without a reasonable basis. The court then applied the treble damages provision of § 8-203(f)(4) and entered a judgment in favor of the estate in the amount of $2,097.50 plus costs, calculated as follows: threefold the entire amount withheld by Rohrbaugh ($675 X 3 = $2,025), plus reasonable attorney's fees ($660), less the amount properly withheld by Rohrbaugh ($587.50).  Judgment was also entered in favor of Stern's estate on the counterclaim.

   From the judgment of the District Court, Rohrbaugh filed a timely appeal on the record to the Circuit Court for Anne Arundel County.  The circuit court reduced the amount of attorney's fees awarded from $660 to $500, the amount requested in the complaint, and increased the amount Rohrbaugh was held entitled to retain from $587.50 to $607.50, the difference being attributable to a mathematical error by the District Court.  The circuit court then affirmed the District Court's[***4] judgment as modified. n2£ We [*447] granted Rohrbaugh's petition for certiorari, which seeks review of the validity of the lower court's interpretation of § 8-203(f)(4).

n2 In upholding the trial court's interpretation of § 8-203(f)(4), the circuit court stated that it
 
"could not reverse the District Court based upon a fair reading of the statute. A Circuit Court can only reverse a lower court if the decision was clearly erroneous. Ryan v. Thurston, 276 Md. 390 [, 347 A.2d 834] (1975).  A court could read the statute and interpret it as [did the District Court].  Therefore, this Court believes that the District Court was not clearly erroneous in trebling the security deposit and then deducting for damages caused to the premises."

   The scope of review of an appeal from a judgment of the District Court is set forth in Maryland Rule 1386:

   "In the appeals to be decided on the record of the lower court, the appellate court will review the case upon both the law and the evidence, but the judgment of the lower court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses."
In Ryan, the case relied upon by the circuit court, we held that Rule 1386 requires that factual determinations of the District Court be upheld on appeal unless found to be clearly erroneous. 276 Md. 390, 347 A.2d 834 passim; see also Loch Hill Constr. Co. v. Fricke, 284 Md. 708, 717, 399 A.2d 883 (1979); Kowell Ford, Inc. v. Doolan, 283 Md. 579, 584, 391 A.2d 840 (1978).

   We also held in Ryan, however, that "the scope of review of an appeal taken on the record from the District Court is the same as that applicable under Rules 886 and 1086, and that the cases applying these rules are controlling authority governing the interpretation of the scope of appellate review under Rule 1386."£ 276 Md. at 392, 347 A.2d 834. In light of our cases applying Rule 886, the "clearly erroneous" standard does not apply to legal determinations of the District Court.  The lower court's interpretations of law enjoy no presumption of correctness on review: the appellate court must apply the law as it understands it to be.  See, e.g., Elza v. Elza, 300 Md. 51, 55-60, 475 A.2d 1180 (1984); Davis v. Davis, 280 Md. 119, 124-131, 372 A.2d 231, cert. denied, 434 U.S. 939, 98 S.Ct. 430, 54 L.Ed.2d 299 (1977); SICA v. Retail Credit Co., 245 Md. 606, 611-621, 227 A.2d 33 (1967); Cassell v. Pfaifer, 243 Md. 447, 453-458, 221 A.2d 668 (1966). The circuit court thus erred in upholding the District Court's interpretation of § 8-203(f)(4) on the basis that the interpretation was not clearly erroneous.

[***5]

   II.

   That the statute contains an ambiguity is, we think, manifest.  The words "the withheld amount," in the context of § 8-203(f)(4), literally may be read as referring to either the entire amount withheld or the amount withheld without [*448]a reasonable basis. The estate argues that because the word "withheld" is not modified by the adjacent adverb "wrongfully," it can only mean the entire amount withheld. We disagree.  Earlier in the same sentence, the phrase "without a reasonable basis" is used to specify the manner in which a landlord must withhold the security deposit to trigger the penalty provisions of this section.  The term "the withheld amount" in the treble damages clause may be understood to refer back to the amount mentioned earlier in the sentence, that is, the [**116] amount withheld without a reasonable basis.

   Several commentators have ascribed the latter interpretation to § 8-203(f)(4), suggesting that the statute's language will at least bear this meaning.  In a law review article authored while he was Reporter for the Maryland Governor's Commission on Landlord-Tenant Law Revision, the committee that drafted § 8-203(f)(4), Professor Steven Davison[***6] stated that "[t]he Maryland statute authorizes punitive damages up to threefold the amount withheld 'without reasonable basis' after 45 days from termination of the lease, plus reasonable attorney's fees."£ (Emphasis deleted.) Davison, The Uniform Residential Landlord and Tenant Act and Its Potential Effects Upon Maryland Landlord-Tenant Law, 5 U.Balt.L.Rev. 247, 269 (1976). The statute is similarly interpreted in a widely used treatise on Maryland landlord-tenant law: "Should the landlord withhold all or part of the security deposit wrongfully, § 8-203(f)(4) provides for a penalty of up to three times that portion of the security deposit wrongfully withheld."£ D. Bregman & G. Everngam, Maryland Landlord-Tenant Law, Practice and Procedure 51 (1983).

   The ambiguity was introduced into this statutory provision during its recodification as part of the new Real Property Article in 1974.  Before 1974, the provision was [*449] codified in Maryland Code (1957, 1973 Repl.Vol.), Art. 21, § 8-213(f)(iv), as follows:

   "If the landlord shall, without a reasonable basis, fail to return all or any part of the security deposit, plus accrued interest, within 45 days after the termination[***7] of the tenancy, the tenant has an action of up to threefold of the amount so withheld, plus reasonable attorney's fees."£ (Emphasis added.)
 
We think the word "so," as used in the italicized portion of this section, was intended by the legislature to mean "in the manner indicated in a preceding phrase."£ See Webster's Third New International Dictionary 2159-60 (unabridged, 1971).  The punitive damages available under this section, therefore, were to be based not upon the entire amount withheld, but only upon the amount withheld in the manner indicated in a preceding phrase.  The only preceding phrase in this section that specifies a manner of withholding is "without a reasonable basis."£ Thus, prior to its recodification in 1974, this statutory provision provided unambiguously for punitive damages of up to threefold the amount withheld without a reasonable basis.

   As we reiterated earlier this Term,
 
"'[r]ecodification of statutes is presumed to be for the purpose of clarity rather than change of meaning.  Thus, even a change in the phraseology of a statute by a codification will not ordinarily modify the law unless the change is so material that the intention[***8] of the General Assembly to modify the law appears unmistakably from the language of the Code.'"
 
Consumer Protection v. Consumer Pub., 304 Md. 731, 768, 501 A.2d 48 (1985) (quoting In re Special Investigation No. 236, 295 Md. 573, 576-77, 458 A.2d 75 (1983)).
 
See also Duffy v. Conaway, 295 Md. 242, 257-58, 455 A.2d 955 (1983); Office & Prof. Employees Int'l v. MTA, 295 Md. 88, 100, 453 A.2d 1191 (1982); Hoffman v. Key Fed.Sav. & Loan, 286 Md. 28, 43, 416 A.2d 1265 (1979); Bureau of [*450] Mines v. George's Creek, 272 Md. 143, 155, 321 A.2d 748 (1974).

   In the case now before us, this presumption is reinforced by the revisor's note to § 8-203, which indicates that the change in the italicized statutory language quoted above, to read "threefold of the withheld amount," was intended to be stylistic only.  The revisor's note follows § 8-203 in the 1974 volume of the session laws, and accompanied the legislation during its enactment by the General Assembly.  See chapter 12 of the Acts of 1974.  Thus, although not part of the law or the enactment itself, see § 5 of chapter 12, the revisor's note is a [**117] useful guide to the legislative[***9] purpose underlying this change in statutory language. See Ex Parte Collett, 337 U.S. 55, 68-71, 69 S.Ct. 944, 951-52, 93 L.Ed. 1207 (1949); Office & Prof. Employees, supra, 295 Md. at 100-01, 453 A.2d 1191; Briggs v. State, 289 Md. 23, 30-31, 421 A.2d 1369 (1980); Bureau of Mines, supra, 272 Md. at 155, 321 A.2d 748; 2A N. Singer, Sutherland on Statutes and Statutory Construction § 47.14 (rev. 4th ed. 1984).  We conclude, therefore, that the ambiguous language in § 8-203(f)(4) must be accorded the meaning of its pre-1974 precursor: the punitive damages recoverable under this section may not exceed threefold the amount of the security deposit withheld without a reasonable basis by the landlord, plus reasonable attorney's fees. n3

n3 Both parties cite numerous cases from other states in which statutes somewhat analogous to § 8-203(f)(4) have been interpreted as prescribing various formulae for imposing punitive damages for a landlord's improper withholding of a tenant's security deposit. See Guzman v. McDonald, 194 Colo. 160, 570 P.2d 532 (1977); Turner v. Lyon, 189 Colo. 234, 539 P.2d 1241 (1975); Cohen v. Meola, 37 Conn.Supp. 27, 429 A.2d 152 (Conn.Super.Ct.1980), aff'd per curiam, 184 Conn. 218, 439 A.2d 966 (1981); Roeder v. Nolan, 321 N.W.2d 1 (Iowa 1982); Robbins v. Foley, 469 A.2d 840 (Maine 1983); Jaremback v. Butler Ridge Apartments, 166 N.J.Super. 84, 398 A.2d 1339 (N.J.Super.Ct.App.Div.1979); Alston v. Thomas, 161 N.J.Super. 403, 391 A.2d 978 (Essex County Ct.1978); Dwork v. Offenberg, 66 Ohio App.2d 14 (1979); Konig v. Bella Dora Management, Inc., 9 Ohio Misc.2d 7, 458 N.E.2d 477 (Akron Mun.Ct.1983). The holdings of these cases necessarily reflect the particular language of the statutes involved, however, and are therefore of little guidance in interpreting § 8-203(f)(4).

[***10]

   [*451] In light of this interpretation, a trier of fact in an action under § 8-203(f)(4) must make two distinct determinations: whether the landlord withheld more of the security deposit than that to which he was entitled; and, if so, whether any part of this excess was withheld without a reasonable basis. Although the tenant, of course, may recover any part of the security deposit incorrectly withheld by the landlord, the treble damages available under § 8-203(f)(4) may be based only on the amount withheld without a reasonable basis. Subject to this constraint, the amount of punitive damages actually awarded lies primarily within the trial court's sound discretion, and will depend on the egregiousness of the landlord's conduct in withholding the excessive amount.

   The trial judge in this case found from the evidence that $67.50 of the $675 security deposit was incorrectly withheld, and, furthermore, that the entire $67.50 was withheld without a reasonable basis. Accordingly, the amount of the judgment could not have been greater than $702.50 plus costs, calculated as follows: threefold the amount withheld without a reasonable basis ($67.50 X 3 = $202.50), plus reasonable[***11] attorney's fees ($500).

    JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REMAND THE CASE TO THE DISTRICT COURT FOR ENTRY OF JUDGMENT NOT INCONSISTENT WITH THIS OPINION.  COSTS TO BE EQUALLY DIVIDED BETWEEN THE PARTIES. 

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Eugene PatrickHINES 
Misc. (Subtitle BV) No. 4, September Term, 1985
 
Court of Appeals of Maryland
 
304 Md. 625; 500 A.2d 646; 1985 Md. LEXIS 884

 December  2, 1985

   PRIOR HISTORY: [***1]  
Circuit Court for  Anne Arundel  County, Raymond G. Thieme, Jr. 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 BV15 c FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST EUGENE PATRICK HINES.

CORE TERMS:  disciplinary rule, personal account, suspension, deposit, misconduct, suspended, misrepresentation, deposited, certiorari denied, financial difficulties, business account, practice of law, readmission, restaurant, dishonesty, handling, suspend

COUNSEL: Melvin Hirshman, Annapolis, Bar Counsel for Attorney Grievance Commission of Maryland, for petitioner.

   Alan J. Goldstein, Esquire, Greenbelt, Maryland, for respondent.

JUDGES: Murphy, C.J., and Smith, Eldridge, Cole, Rodowsky, Couch and McAuliffe, JJ.

OPINIONBY: PER CURIAM

OPINION: [*626] [**646] The Attorney Grievance Commission, acting through Bar Counsel, filed a petition for disciplinary action against Eugene Patrick Hines, alleging violations of the disciplinary rules of the Code of Professional Responsibility.  We referred the matter, pursuant to Maryland Rule BV9 b, to [*627] Judge Raymond G. Thieme, Jr. of the Circuit Court for Anne Arundel County to make findings of fact and conclusions of law.  After conducting a hearing, Judge Thieme made findings and conclusions as follows:

   [**647] "The handling of two particular cases[***2] by the Respondent are the impetus for the petition.  The first involved the representation of a Ms. Linda Shakkour and a Ms. Kathleen Flynn and their efforts to secure a proper location for their restaurant. Respondent was retained to negotiate on their behalf for a suitable property in the District of Columbia.  He advised his clients that a deposit would be needed to reserve any sought property.  He received a check in the amount of $2,850; this check was subsequently deposited in his personal account on January 23, 1980.  On February 4, 1980, $2,500 was removed from Respondent's personal account and deposited into a business account. In February Ms. Shakkour and Ms. Flynn advised him that they had abandoned their restaurant venture.  Thereupon, Respondent sent a bill for his services in the amount of $3,581.  Some disagreements about this bill arose and Respondent suggested that a lien could be placed on the deposit money.  A complaint was filed with the Attorney Grievance Committee for the District of Columbia.

   "The District of Columbia Court of Appeals in an opinion dated September 26, 1984, found that the Respondent had, by placing Ms. Shakkour's and Ms. Flynn's deposit[***3] in his personal account, violated the District's DR 9-103. That conduct, the Court wrote, was done in reckless disregard for the status of the accounts of his clients and gave rise to the inference that the Respondent had engaged in conduct involving dishonesty in violation of DR 1-102(A)(4).

   "The second incident giving rise to this case involved the handling of a legal claim against an estate by Respondent on behalf of Ms. Jane Nusbaum in the early part of 1980.  Pursuant to an agreement with Ms. Nusbaum all proceeds of the claim against the estate would be divided fifty-fifty between Respondent and client.  A total of $8,136 was [*628] secured from the estate.  Ms. Nusbaum's share was diminished, by agreement, by $682.00 for past unrelated legal services rendered.  Ms. Nusbaum was entitled to a total of $3,386.00. Ms. Nusbaum requested that the Respondent deliver to her directly $1,886.00. The remaining $1500.00 was to be placed by him into his client's checking account located in Riggs National Bank.  Respondent deposited the entire check from the estate into his professional account, and as requested, immediately drew a check payable to Ms. Nusbaum in the amount of[***4] $1,886.00.  He did not deposit $1500.00 into his client's account at Riggs National Bank and on two occasions, April 18, 1980 and April 22, 1980, he misrepresented to Ms. Nusbaum his reasons for his failure to so follow her instructions.  Ms. Nusbaum subsequently suffered financial difficulties at her bank directly attributable to the actions of Respondent.

   "The Court of Appeals for the District of Columbia found that the actions of the Respondent violated DR 1-102(A)(4).  They constituted a deliberate misrepresentation to a client while in the service of that client.  The failure to keep Ms. Nusbaum's $1500.00 in an identifiable bank account was a violation of the District's DR 9-103(A).  DR 9-103(B)(4) was violated when Respondent declined to follow Ms. Nusbaum's request to transfer the $1500.00 to Riggs National Bank.  The resulting damage to Ms. Nusbaum represented a violation of DR 7-101(A)(3) according to the D.C. Court of Appeals.

   "FINDINGS OF LAW

   "Attorneys at law are officers of the court, Attorney Grievance Commission v. Levitt, 286 Md. 231, 406 A.2d 1296 (1979). Their conduct, in their professional capacity as attorneys, is subject to the scrutiny of the Court[***5] of Appeals, Andresen v. Bar Association of Montgomery County, 269 Md. 313, 305 A.2d 845 (1973) certiorari denied 414 U.S. 1065. The Court of Appeals has promulgated rules for this purpose, Attorney Grievance Commission of Maryland v. Kerpelman, 288 Md. 341, 420 A.2d 940 (1980) certiorari [*629] denied 450 U.S. 970. [**648]These rules are the Code of Professional Responsibility and it is by these rules that this Court must examine Respondent's conduct.

   "Disciplinary Rule 1-102(A)(4) requires that an attorney abstain from conduct involving dishonesty, fraud, deceit or misrepresentation. The statements Respondent made to Ms. Nusbaum in April of 1980 with reference to her monies the Respondent controlled were clear misrepresentations and thus violative of DR1-102(A)(4).  With regard to the statements Respondent made to Ms. Shakkour and Ms. Flynn, that the Attorney Grievance Commission contends are evidence that Respondent had an intent to use their funds for his own behalf, the Court is not convinced.

   "Disciplinary Rule 7-101(A)(3) obligates an attorney not to prejudice or damage his client in the course of his representation.  As noted in the agreed upon stipulation, [***6] Ms. Nusbaum suffered some financial difficulties as the result of Respondent's procrastination and misrepresentations. These actions constitute a violation of this rule.

   "Disciplinary Rule 9-102(A)(1) and (2) (The District's DR9-103) establishes a duty for an attorney to segregate funds belonging to a client.  Respondent, by depositing $2850.00 belonging to Ms. Shakkour and Ms. Flynn into his personal account and then withdrawing most of that money from that account into his business account violated this rule.  This disciplinary rule was violated a second time by Respondent's failure upon the request of Ms. Nusbaum to deposit her funds in his possession to the designated account in Riggs National Bank.

   "Lastly, Disciplinary Rule 9-102(B)(4) compels an attorney to return the held funds of a client upon request.  Respondent's actions with regard to Ms. Nusbaum violated both the letter and spirit of this rule."

   The District of Columbia Court of Appeals suspended Hines for two years for his misconduct, beginning October 26, 1984.  In re Hines, 482 A.2d 378 (1984). Under Maryland Rule BV10 e 1 the final adjudication of Respondent's [*630] misconduct by the District of Columbia[***7] Court of Appeals "is conclusive proof of the misconduct in the hearing of charges pursuant to this Rule."

   Bar Counsel recommends that we suspend Hines for two years from the practice of law in this State.  While not opposing Bar Counsel's recommendation, Hines suggests that the period of suspension should run concurrently with the two-year suspension imposed by the District of Columbia.  Under Rule XI, Section 21 of the Rules Governing the Bar of the District of Columbia, an attorney suspended from practice in that jurisdiction for more than one year may be reinstated only on petition.  Readmission, therefore, is not automatic.

   Considering all the circumstances, we shall suspend Hines from the practice of law in Maryland for two years and he shall remain suspended beyond that time unless he has applied for readmission and been readmitted to the Bar of the District of Columbia following expiration of his suspension in that jurisdiction.  Hines's suspension shall commence 30 days from the date of the filing of the opinion in this case.  Prior to the termination of the suspension, Hines shall pay all costs of the disciplinary proceeding.  See Attorney Griev. Comm'n v. Sheehy, 298[***8] Md. 371, 470 A.2d 341 (1984).

   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 BV15 c FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST EUGENE PATRICK HINES. 

STATE of Maryland v. ONE HUNDRED AND FIFTY-EIGHT GAMINGDEVICES 
No. 106 September Term, 1984
 
Court of Appeals of Maryland
 
304 Md. 404; 499 A.2d 940; 1985 Md. LEXIS 877

 November  7, 1985

   PRIOR HISTORY: [***1]

   Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County - James L. Wary, Judge)

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED IN PART AND REVERSED IN PART; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REMAND THE MATTER TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  EACH PARTY TO PAY OWN COSTS.

CORE TERMS:  machine, gambling, game, slot, slot machine, player, free-play, knock-off, pinball, token, free play, meter, reward, coin, gambling device, seized, pinball machine, amusement, thing of value, console, adapted, switch, contraband, convertible, insertion, merchandise, inoperable, payoff, statutory definition, button

COUNSEL: Avery Aisenstark, Assistant Attorney General (Stephen H. Sachs, Attorney General, Lynette M. Phillips, Assistant Attorney General, on the brief), all of Baltimore, Maryland, for appellant.

   Thomas C. Morrow (William K. Meyer, Francis B. Burch and Joseph C. Jacobs, on the brief), all of Baltimore, Maryland, for appellee.

JUDGES: Murphy, C.J., and Smith, Eldridge, Cole, Rodowsky and Couch, JJ., and James C. Morton, Jr., Associate Judge of the Court of Special Appeals (retired), specially assigned.

OPINIONBY: MURPHY

OPINION: [*406] [**941] This case involves a number of devices seized as illegal "slot machines" under the provisions of ch. 617 of the Acts of 1963, as amended by ch. 280 of the Acts of 1981, now codified as Maryland Code (1982 Repl.Vol.), Article 27, § 264B.

   I

    Section 264B makes it[***2] a criminal offense after a date not here relevant "to locate, possess, keep, maintain or operate any slot machine within this State."£ The statute defines a "slot machine" as:

   "Any machine, apparatus or device . . . that is adapted for use in such a way that, as a result of the insertion or deposit therein, or placing with another person of any piece of money, coin, token or other object, such machine, apparatus or device is caused to operate or may be operated, and by reason of any element of chance or of other outcome of such operation unpredictable by him, the user may receive or become entitled to receive any piece of money, coin, token or other object representative of and convertible into money, irrespective of whether the [*407] said machine, apparatus or device may, apart from any element of chance or unpredictable outcome of such operation, also sell, deliver or present some merchandise or money or other tangible thing of value."
 
[**942] Ch. 617 of the Acts of 1963 -- the original enactment prohibiting slot machines in Maryland -- contained the following uncodified provision as § 2 of the Act:
 
"[T]he intent of the legislature in the enactment[***3] of the aforegoing act is expressed as not intending to apply to the machine, apparatus or device commonly known or colloquially referred to, as 'pinball machine,' so long as said machine, apparatus or device does not permit any compensation, remuneration, recompense, reward, repayment or winnings beyond an automatic replay of a game or games mechanically provided upon said machine."
 
Paragraph V of § 264B, as originally enacted by ch. 280 of the Acts of 1981, made special provision for "antique" slot machines as follows:

   "It shall be a defense to any prosecution under paragraph III of this section if the defendant shows that the slot machine is an antique slot machine and was not operated for gambling purposes while in the defendant's possession.  For the purposes of this paragraph, a slot machine is an antique slot machine if the defendant shows by a preponderance of the evidence that it was manufactured prior to 1941.  Whenever this defense is offered, no slot machine seized from any defendant shall be destroyed or otherwise altered until after a final court determination including review upon appeal, if any, that the defense is not applicable.  If the defense is applicable, [***4] the slot machine shall be returned pursuant to provisions of law providing for the return of property." n1 

n1 Ch. 540 of the Acts of 1983 amended this provision to change "it was manufactured prior to 1941" to "the machine was manufactured at least 25 years before the date on which the machine is seized."

   [*408] II
 
   The State seized the devices in question on December 30, 1980 from the commercial warehouse premises of Willow Enterprises, Inc.  Willow's president, Louis Wilner, was convicted of unlawfully possessing slot machines in violation of § 264B.  He did not appeal.

   On October 13, 1981, the State initiated an in rem proceeding in the Circuit Court for Anne Arundel County for forfeiture of the seized devices.  At trial, the State introduced a number of devices, which it claimed were representative of all of the devices that had been seized. The circuit court (Wray, J.) in a memorandum opinion found that certain of the devices, e.g., the Sircoma Draw 80 Poker machines equipped with a[***5] "knock-off" switch or meter, were illegal slot machines because they were "presently adapted to register rewards obtained by chance and to facilitate undetectable human payoffs of items with value."£ The court also found that other devices n2 "with payoffs other than free plays" were illegal slot machines subject to forfeiture.  Another device found by the trial court to be an illegal slot machine was a so-called Delta Red, White and Blue machine "with the knockoff switch and other devices with provisions to facilitate house payments."£ Moreover, the court declared a number of console machines to be illegal slot machines. n3£ It found, however, that a Delta machine "without a knockoff switch," as well as all similar free-play devices, was not a slot machine under the statutory definition. The court held that an inoperable Bally slot machine (a conventional "one-arm bandit"), as well as all like inoperable devices and parts adaptable for slot machine usage, was not a slot machine within the contemplation of the statute.  It also held that a number of partially dismantled devices met the definition of a slot machine and were [*409] subject to forfeiture.  Finally, the court concluded[***6] that a number of other devices manufactured prior to 1941, and [**943] not operated for gambling purposes while in the owner's possession, were not subject to forfeiture because such devices were "antique" slot machines exempt under § 264B(V).

n2 These devices were variously known as Dawg Race, Black Jack, Forbes, Micro and Vega 21.

n3 These devices were known variously as Sweet Shawnee, Black Dragon, Two Knights, King's Wild Arm and Wild Red.

   The State appealed.  It claimed that the trial court erred in not finding the inoperable devices and the free-play devices without knock-off switches or meters to be illegal slot machines and in ordering the return of the "antique" slot machines. Willow cross-appealed.  It contended, among other things, that the trial court misconstrued § 264B in not exempting all free-play devices from the statutory definition of a slot machine.

   The Court of Special Appeals decided the cross-appeals in State v. 158 Gaming Devices, 59 Md.App. 44, 474 A.2d 545 (1984). It[***7] first noted that the seized devices were of various makes, models and designs, describing them as follows:
 
"[M]ost of the seized devices incorporated 'free play' or 'game credit' features that rewarded the successful player with 'free' replays, which were registered on a three or four digit meter attached to the machine. The player was able to use the free plays by activating a 'play' button on the machine.

   "Many of the alleged gaming devices were adapted with a 'knock-off switch' and a 'knock-off meter.'£ The switch and meter enabled the machine owner to remove game credits from the machine while maintaining a tabulation of the total free plays actually won.  A number of the seized devices had not yet been fitted with the knock-off switches or meters, but unattached meters were found at Willow's premises.

   "Forty-eight of the devices seized were Delta 'Red, White and Blue' machines that issue stamps printed with randomly selected numbers.  If the numbers on the stamps issued by the machine correspond with numbers [*410] on a chart that was placed on top of the machine, the player wins replays, coupons or merchandise.

   "The remaining devices were a variety of 'one-arm[***8] bandits' which are activated by a player's depositing a coin in a slot and pulling a handle. The handle rotates reels which spin and then stop, revealing a combination of symbols, numbers, words or colors.  If the combination of the reels corresponds with one of the predetermined winning combinations, the machine releases the 'payoff' into a coin tray located on the lower front of the machine. With the exception of the one-arm bandit devices, none of the gaming machines had the capability of directly paying off to the player. The other devices required a third party to redeem 'free games' for something of value that was more tangible."£ 59 Md.App. at 48-49, 474 A.2d 545 (footnote omitted).

   In considering the State's right to institute forfeiture proceedings against the seized devices, the court concluded that property which is subject to forfeiture is characterized as either contraband per se or derivative contraband. The former, the court said, is property that is inherently illegal while derivative contraband is property that may be legal or illegal to possess, depending upon the circumstances.  59 Md.App. at 50, 474 A.2d 545. The court opined that the devices seized from[***9] Willow "may or may not have a lawful, useful purpose" and were therefore not contraband per se.  Id.£ It determined, however, that the devices would be forfeitable as derivative contraband under common law principles if the State showed by a preponderance of the evidence "that the owner or user of the seized items intended the property to be used illegally and that the items were procured, held or used for an unlawful purpose."£ Id. at 53, 474 A.2d 545.

   After reviewing the legislative history underlying the enactment of § 264B and our decision in Clerk v. Chesapeake Beach Park, 251 Md. 657, 248 A.2d 479 (1968), the court held:
 
[*411] "[T]he classification of a device as illegal under § 264B depends on its potential for valuation of aggregated free plays 'won' [**944] on a game of chance."£ 59 Md.App. at 57, 474 A.2d 545 (footnote omitted).
  
It said that the existence of the so-called knock-off switch was not "determinative of whether a device is classified as an illegal slot machine under § 264B."£ Id.£ Explaining, the court said:
 
"Knock-off switches are usable for purposes other than gambling. If, for instance, a player after[***10] accumulating a great number of 'free plays' becomes bored with the game, or for any other reason walks away from the machine, it is unreasonable to expect the merchant to allow other persons to utilize the accumulated 'free plays.'£ The owner should have some way of removing the 'free plays' from the machine, hence the knock-off switch. The knock-off meter, on the other hand, may be indicative that the machine is a gambling device. The knock-off meter is, in effect, an accounting of the 'free plays' and may disclose to the owner of the machine that the degree of difficulty in 'winning' is too great or too little.

   "When a device contains an odds mechanism, a method of releasing free plays, and a knock-off meter, the potential for valuating aggregate free plays exists and the machine is illegal under § 264B."£ Id. at 57-58, 474 A.2d 545 (footnote omitted).

   The Court of Special Appeals also determined that certain of the devices seized, having been manufactured prior to 1941, were antique slot machines exempt from seizure under § 264B(V); that a number of inoperable devices, which were merely adaptable, but not actually adapted for use as slot machines, were not within the[***11] statutory definition; but that partially dismantled devices meeting the statutory definition were illegal slot machines and, therefore, subject to forfeiture.  The court remanded the case to the trial court for the entry of an order consistent with the principles set forth in its opinion.

   [*412] The State's petition for certiorari, which we granted, raised two questions:

   (1) Whether a gambling device that meets the statutory definition of "slot machine" -- and, as such, is subject to an unqualified statutory prohibition against its possession for any reason is contraband per se; and

   (2) Whether a gambling device that operates on principles of consideration, chance, and reward as specified in the governing statutory prohibition nevertheless does not violate the statute absent the existence of certain additional mechanisms.
 
Willow did not file a cross-petition for certiorari.

   III

   Placing reliance upon the legislative history of § 264B, the State contends that the mere possession of slot machines prohibited by the statute is illegal, whatever the circumstances of their use or intended use, and because such devices cannot be used for any legitimate purpose, they are subject[***12] to summary forfeiture as contraband per se.  The State claims that a device, other than a true free-play pinball machine, is illegal under the Act if it (1) requires consideration such as money or a token to operate; (2) operates by reason of any element of chance; and (3) entitles the player to receive a reward, whether monetary or representative of or convertible into money, such as free plays.  This is so, the State maintains, without regard to the device's mechanical, technological or stylistic design features.  Accordingly, the State concludes that the Court of Special Appeals erroneously distinguished between legal gaming devices and illegal slot machines -- not on the basis of whether the devices operated on the § 264B principles of consideration, chance and reward -- but rather on the presence of various features, such as odds mechanisms, knock-off switches and meters, that are nowhere referred to in the statute.

   [*413] The State says that the devices in question are activated either directly or indirectly by the insertion of coins or some other [**945] payment of consideration and operate exclusively on the principle of chance.  As to the latter element, the State[***13] maintains that an individual's skill is totally irrelevant to the game's outcome, unlike some video arcade games such as pac-man and some pinball machines, where manipulation of levers, buttons or control sticks enables a skillful player to win free games.

   The last element -- the concept of a reward representative of or convertible into money -- is also present, the State claims, because each of the seized devices offers some form of remuneration to the player, either by means of a coin chute, a redeemable token or game credits that can be used for further games or clandestinely converted into cash. n4

n4 Evidence in the record before us shows that, in practice, accumulated game credits frequently result in cash payoffs to the successful player. That knock-off switches and meters are designed to facilitate cash payoffs is also shown by the evidence.

   The State argues that, under Maryland case law, free games constitute a "thing of value," representative of or convertible into money within the contemplation of[***14] § 264B.  It contends that the legislature did not intend to restrict the reward element of § 264B only to devices that offer some tangible object of value; otherwise, the express exemption for free play pinball machines would not be necessary.  That free plays have intrinsic value, according to the State, is evident from the fact that the proprietor is manifestly concerned with the number of free plays won since the player may continue to operate the device without paying -- to the proprietor's obvious financial detriment.  The State sees free plays as the functional equivalent of the "coin, token or other object" otherwise necessary under § 264B to activate the machine or the mechanical payoff chute.  As none of the seized devices were free play pinball machines, the State urges that the statutory exemption for such devices is plainly inapplicable.

   [*414] Willow acknowledges that the seized devices are coin activated and operate on the basis of chance.  It says that the main issue is simply whether a free play itself is a thing of value within the ambit of § 264B.  If it is, Willow concedes that the devices are illegal slot machines and subject to summary forfeiture as contraband[***15] per se.  Willow contends, however, that a free play is not a thing of value under Maryland law and that consequently § 264B does not prohibit any free-play devices.  The exemption in § 264B for free-play pinball machines, according to Willow, encompasses any and all free-play devices and not just pinball machines. Willow acknowledges, however, that devices which operate on the principles of consideration and chance and which reward a successful player with free plays may be illegal under § 264B if the devices possess features designed to promote and facilitate gambling, and free plays are redeemable for value.  Willow thus appears to have accepted the intermediate appellate court's determination, from which it did not appeal, that devices equipped with odds mechanisms, knock-off switches and meters are illegal slot machines under § 264B.

   IV

   In determining the intention of the legislature in enacting § 264B, the most frequently used document is the Report of the Slot Machine Study Committee appointed by Governor Tawes in 1962, sometimes referred to as the Emory Commission after its chairman, Richard W. Emory.  The committee in a report to the Governor, dated January 12, [***16] 1963, noted that its study encompassed all gambling devices and machines which have been legalized by local law.  It reviewed the history of pinball and other coin-operated devices in Maryland.  It observed that the provisions of ch. 11 of the Acts of 1937 (Extraordinary Session) permitted the issuance of a statewide license for a "pin ball machine or game played with balls and plungers . . . or any other machine or device so constructed or devised to make the result of the operation [**946]depend in whole or in part upon the [*415] skill of the player. . . ."£ This law authorized "playing for a premium, trophy or prize, in merchandise only, for high score or skill in the operation thereof."£ According to the committee report, ch. 11 was a Depression era revenue raising measure. It was repealed by ch. 8 of the Acts of 1939.  The report next pointed out that the legislature, at its 1939 session, refused to enact another statewide licensing law for "pinball and other coin operated machines."£ It did, however, pass local laws for Anne Arundel, Charles, Montgomery and Prince George's Counties.  These measures, however, were vetoed by then Governor O'Conor.  In 1941, pinball[***17] and slot machine laws were passed in Anne Arundel and Garrett Counties but were again vetoed by the Governor.  Public local laws legalizing slot machines were subsequently enacted for Anne Arundel County (ch. 321 of the Acts of 1943), Calvert County (ch. 13 of the Acts of 1948, Extraordinary Session), Charles County (ch. 678 of the Acts of 1949) and St. Mary's County (ch. 32 of the Acts of 1947, Extraordinary Session).  In Calvert, Charles and St. Mary's Counties, the legalized devices consisted of any "mechanical or electrical amusement devices which require the insertion of a coin or token for their operation and which offer an award . . . based in whole or in part upon chance or [the operator's] skill."£ In Anne Arundel County, any "amusement device" was legalized, as well as commercial bingo. n5£ The public local law applicable to each of these Southern Maryland counties exempted the legalized devices from the State's gambling laws.

n5 As to bingo, see ch. 625 of the Acts of 1949.

   The committee noted[***18] that the Federal Gambling Devices Act of 1962 (15 U.S.C. §§ 1171-1177), amending the Johnson Act of 1951, enlarged the definition of gambling devices to include "free-play" slot machines. The need for this legislation was set forth in a congressional report, quoted in the Emory Commission Report (p. 10), as follows:
 
"'New gambling machines have been developed which are controlled by syndicated crime, but which are not [*416] subject to the provisions of the Johnson Act because they are not coin-operated, do not pay off directly or indirectly, and do not have a drum or reel as in the conventional slot machine. Principally they are pinball machines which afford players an opportunity if certain combinations are achieved to register a great number of free games, in some instances up to 999 free games. These machines usually have a mechanism whereby the player can change the odds merely by inserting more money into the machine or increase the number of balls that can be played by inserting more money.  These free games can be played off or they can be eliminated from the machine by pressing a button or lever.  The number of accumulated free games eliminated from the machine[***19] are recorded by a meter and payment to the player for the number of free games canceled is made by the proprietor of the establishment where the gambling machine is located or by his agent.

   "'The committee bill broadens the definition of the term "gambling device" in the Johnson Act so as to include such pinball machines and any other mechanical devices which are designed and manufactured primarily for use in connection with gambling and which when operated may deliver as a result of the application of an element of chance any money or property, either directly or indirectly.

   "'Pinball and other machines, intended for amusement only, which award a limited number of free plays that are not convertible to money or other things of value, are not covered by this legislation.'"
 
The committee report observed that the 1962 Federal Act "makes the possession of any machine which may be used as a gambling device illegal without requiring proof of cash pay-offs."£ Among several exceptions [**947] was one for a "marble machine (a so-called pinball machine) . . . which is not designed and manufactured primarily for use in connection with gambling, and (A) which when operated does[***20] not deliver as a result of the application of an element of [*417] chance, any money or property or (B) by the operation of which a person may not become entitled to receive, as the result of the application of an element of chance, any money or property."

   In its report, the Emory Commission noted a distinction between "free-play" gambling devices and "free-play" amusement devices, stating that the former required a $250 annual tax stamp while the latter required only a $10 annual tax stamp.  According to the committee report, the difference between the two types of machines resided in their construction and operation.  It said (at p. 11):
 
"If the machine has an odds mechanism, provision for releasing free plays and a meter for recording free plays released, then it is a gambling device. If the machine does not have such gambling features, its use for gambling is not considered practicable even though it may award free games in a limited number."
 
In this regard, the committee report referred to federal tax regulations, describing a "free play" gambling device required to have a $250 gambling tax stamp, as follows (p. 12):

   "'A machine which is operated[***21] by means of the insertion of a coin, token, or similar object and which, even though it does not dispense cash or tokens, has the features and characteristics of a gaming device whether or not evidence exists as to actual payoffs.

   "'A pinball machine equipped with a push button for releasing free plays and a meter for recording the plays so released, or equipped with provisions for multiple coin insertion for increasing the odds.'"

   In the course of its report, the committee noted that, in addition to the statutes in Anne Arundel, Calvert, Charles and St. Mary's Counties, laws existed licensing "free-play" pinball and console machines in Baltimore City and ten [*418]other counties. n6£ These laws, the committee reported, made no distinction between the free-play machines classified by the federal government as gambling devices and amusement-type free-play machines. The committee report, referring to testimony before various congressional committees, concluded at p. 12 "that there are more slot machines including the 'free play' gambling devices licensed with the Federal government in Maryland than in any other State in the entire United States."£ The committee said (p. 12) [***22] that slot machines are not limited to four Southern Maryland counties.  It cited statistics showing that in Baltimore City and Baltimore County alone, there were "free play" gambling devices at 2,700 different locations in 1962, and that in the fiscal year ended June 30, 1962, there were 3,971 applications for federal gambling stamps in Maryland over and above 850 slot machine locations in the four Southern Maryland counties.  But the committee said that it was unable to determine the extent to which, in Maryland, the devices classified as gambling devices under the federal law were used for gambling. It noted, however, that by enactment of the Federal Gambling Devices Act of 1962, the Congress established as national policy "the fact that these 'free play' slot machines are gambling devices and should be outlawed" as they are used "extensively for gambling on a far larger scale than legalized slot machines."£ Report, at 13-14.  The committee concluded its report as follows (p. 14):

   "Any abolition of slot machines requires repeal of the local laws applicable to Anne Arundel, Calvert, Charles and St. Mary's Counties legalizing cash pay-off [**948] machines. It also requires[***23] repeal or amendment of the General Laws permitting the licensing of 'free play' slot machines classified by the Federal government as gambling devices, and enactment of a State law at least as strong as the Federal [*419] Gambling Devices Act of 1962 prohibiting any machine, 'free play' or otherwise, which may be used as a gambling device. Unless the problem is attacked on a state wide basis, the 'free play' gambling devices will invade Southern Maryland and the slot machine business will continue there, but the four Counties will have been deprived of the approximate $1,600,000 in annual revenues which they now enjoy.

   "Florida and New York have laws that prohibit the possession of any machine or device which, by reason of any element of chance or of other outcome of such operation unpredictable by the operator, the user may receive or become entitled to receive anything of value or otherwise or may secure additional chances or rights to use the machine. It will be noted that this is a very broad definition which prohibits the possession of even a 'free play' machine which the Federal government in the Gambling Devices Act of 1962 and in the revenue laws classifies as an amusement[***24] device."
 
The committee declined to recommend "[w]hether Maryland [should] adop[t] a law based upon Florida and New York law or upon Federal law. . . ."£ It was thus for the General Assembly to delineate the devices to be encompassed by any new legislation and it responded by the 1963 enactment of § 264B.

n6 See Maryland Code (1957, 1962 Cum.Supp.), Art. 56, §§ 18, 19, 20 and 20A. The subdivisions then were Baltimore City and Baltimore, Caroline, Dorchester, Harford, Kent, Queen Anne's, Talbot, Washington, Wicomico and Worcester Counties.

   V

   The most authoritative interpretation of § 264B is found in Clerk v. Chesapeake Beach Park, 251 Md. 657, 248 A.2d 479 (1968). That case involved a declaratory judgment action to determine whether an electrical console device and a partly mechanical and partly electrical pinball machine were illegal slot machines under § 264B.  Both machines required the insertion of a coin for their operation and offered an award to the operator based in whole or[***25] in part, as to the console machine, on chance and, as to the pinball device, upon chance or skill.  The award offered by each [*420] device was "'the registration upon the device of one or more free plays which may, in the option of the operator, be taken by replaying the machine or may be redeemed . . . for merchandise.'"£ Id. at 659, 248 A.2d 479. A declaration that the devices were legal under the public local laws of Calvert County which licensed "amusement devices" was also sought.

   We noted in Chesapeake Beach that our earlier decision in Gaither v. Cate, 156 Md. 254, 144 A. 239 (1929) held "in disagreement with various legislative and judicial holdings elsewhere to the contrary, that a machine adapted for gambling which ostensibly offered as a reward for playing it only additional free plays was a gambling device."£ Id. [251 Md.] at 664, 248 A.2d 479 (emphasis added).  We also observed that the holding in Gaither v. Cate was influenced by the statutory provision in then Code, Art. 27, § 257 (now, Code, 1982 Repl.Vol., § 246 of Art. 27) requiring that courts construe the law "'relating to gambling and betting liberally, so as to prevent the mischiefs[***26] intended to be provided against.'"£ Id.

   After reviewing the report of the Emory Commission, the Court in Chesapeake Beach turned to the uncodified provision of § 264B which, as earlier indicated, expressly exempted devices "commonly known or colloquially referred to, as 'pinball machine'" from inclusion under the statutory definition of a slot machine, where such devices did not permit any reward "beyond an automatic replay of a game or games mechanically provided upon said machine."£ As to this, we said:
 
"[T]he proper inference to be drawn from the inclusion of Section 2 in [ch. 617], legalizing only true free play pinball machines, is that the legislature believed the definition of a slot machine in [§ 264B] was broad enough to include, or [**949] to be construed as including, all machines or devices conferring upon a winning player any award, including true free play machines, as gambling devices [*421] under Gaither v. Cate, supra."£ Id. at 666, 248 A.2d 479 (emphasis in original).
 
We thereafter added:
 
"Another fair inference is that because the only deviation the legislature selected from the general definition was[***27] the true free play pinball machine, it regarded and intended to classify as slot machines any console and pinball machines that furnished gratification or reward to a winning player other than further free plays."£ Id. at 666, 248 A.2d 479.
 
We concluded that § 264B
 
"rejected the total ban of the New York and Florida statutes including even free play machines, and adopted the theory of the Federal statutes which classify as gambling devices pinball machines which can pay off in other than additional free plays but classify as permitted amusement devices free play pinball machines."£ Id. at 666, 248 A.2d 479.
 
We also held in Chesapeake Beach that, to satisfy the actual legislative intention, the phrase in § 264B -- "representative of and convertible into money" meant representative of or convertible into money.  Id. at 667, 248 A.2d 479.  We said:

   "If the phrase defining the material reward of the winner is read as money, coin, token or other object 'representative of or convertible into money,' as we hold it should be, it is apparent that not only the tokens which fall to a winner in the cup of the one-arm bandit but the aggregate value[***28] of the free plays won on the console or pinball machine, whether evidenced by a receipt or not, are alike 'representative of' money in that under the evidence they can be used to purchase beverages, food or merchandise of a specified dollar value.  [Section 264B] proscribes machines or devices through the operation of which this result can occur by chance."£ Id. at 668-69, 248 A.2d 479 (emphasis added).
 
[*422] Finally, we said that § 264B repealed the local Calvert County law to the extent that it permitted the licensing, possession and operation of gambling machines and devices that come within the ban of the statewide Act.  Id. at 669, 248 A.2d 479.  As the free plays on both the console and pinball devices were redeemable for merchandise, we declared that they were in violation of § 264B. n7

n7 The result reached in Chesapeake Beach was applied under nearly identical facts to console and pinball devices licensed in Charles County.  See Charles Co. v. Conner, 251 Md. 670, 248 A.2d 486 (1968).

[***29]

   VI

   Made explicitly clear in Chesapeake Beach was that the General Assembly in enacting § 264B did not adopt either the Florida or New York statutes which declared a device to be an illegal slot machine simply because, inter alia, the successful player was rewarded by "additional chances or rights to use such . . . device." n8£ [**950] The omission of any such [*423] language from § 264B is of obvious significance.  Equally significant is the use in § 264B of the phrase, "any piece of money, coin, token or other object representative of [or] convertible into money" rather than the broader phrase in the Florida and New York statutes, "any piece of money, credit, allowance or other thing of value, or any check, slug, token or memorandum, whether of value or otherwise, which may be exchanged for any money, credit, allowance or thing of value."£ (Emphasis added.)£ Section 264B does not, in a similar context, contain the words "thing of value" which had frequently, although not invariably, been interpreted as encompassing a free play. See Annot., Coin-operated pinball machine or similar device, played for amusement only or confining reward to privilege [***30]  of free replays, as prohibited or permitted by antigambling laws, 89 A.L.R.2d 815 (1963).

n8 The definition in the Florida statute, as enacted by ch. 18143, Acts of 1937, is as follows:
 
"Any machine or device is a slot machine or device within the provisions of this Act if it is one that is adapted, for use in such a way that, as a result of the insertion of any piece of money or coin or other object such machine or device is caused to operate or may be operated, and by reason of any element of chance or of other outcome of such operation unpredictable by him, the user may receive or become entitled to receive any piece of money, credit, allowance or thing of value, or any check, slug, token or memorandum, whether of value or otherwise, which may be exchanged for any money, credit, allowance or thing of value, or which may be given in trade, or the user may secure additional chances or rights to use such machine, apparatus or device, even though it may, in addition to any element of chance or unpredictable outcome of such operation, also sell, deliver or present some merchandise, indication of weight, entertainment or other thing of value."£ (Emphasis supplied.)
 
New York Penal Law § 982(2), as enacted by ch. 317, Acts of 1937, reads:

   "Any machine, apparatus or device is a slot machine or device within the provisions of this section if it is one that is adapted, or may readily be converted into one that is adapted, for use in such a way that, as a result of the insertion of any piece of money or coin or other object such machine or device is caused to operate or may be operated, and by reason of any element of chance or of other outcome of such operation unpredictable by him, the user may receive or become entitled to receive any piece of money, credit, allowance or thing of value, or any check, slug, token or memorandum, whether of value or otherwise, which may be exchanged for any money, credit, allowance or thing of value, or which may be given in trade, or the user may secure additional chances or rights to use such machine, apparatus or device; irrespective of whether it may, apart from any element of chance or unpredictable outcome of such operation, also sell, deliver or present some merchandise, indication of weight, entertainment or other thing of value."£ (Emphasis supplied.)

[***31]

   Moreover, as we recognized in Chesapeake Beach, the General Assembly, in enacting § 264B, "adopted the theory of the Federal statutes."£ 251 Md. at 666, 248 A.2d 479. We thereby expressly noted a distinction between devices constructed and designed for gambling which "pay off in other than additional free plays" and other devices, not adapted for gambling and used solely for amusement, which award free plays that are not redeemable for money or merchandise.

   The verbiage used in § 264B must, of course, also be considered in light of the legislature's knowledge of the construction that the courts had previously given to the [*424] State's gambling laws.  Gaither v. Cate, supra, decided in 1929, involved a coin-operated slot machine which, upon activation by the insertion of a nickel and the pulling of a lever, simultaneously (a) dispensed a packet of mint wafers worth but a fraction of a nickel and (b) caused several cylinders containing various symbols to rotate and form various combinations, some of which entitled the successful player to receive tokens in varying amounts.  Both the device and the tokens themselves specified that the game was for amusement only and[***32] that the tokens were not redeemable.  The tokens could be used to replay the machine and also for insertion, albeit unlawfully, in pay telephones.  In concluding that such machines were subject to seizure as illegal gambling devices, the court noted that in actuality the machines were "manufactured and designed for gambling purposes" to increase sales of mint wafers "by appealing to the gambling instinct, which is either active or latent in almost every individual."£ 156 Md. at 264-65, 144 A. 239. The attraction of the device, the Court said, was that the player, in addition to receiving mint wafers,
 
"is furnished a certain varying amount of amusement in observing the revolving of the cylinders and the formation of different combinations of symbols thereon, or that [tokens] will be redeemed at a certain figure, or that he desires to use them for the fraudulent purpose of placing them in coin slot boxes in substitution for money."£ Id. at 266, 144 A. 239.
 
The Court characterized the device as an illegal "game of chance, exciting the gambling instinct."£ Id. at 266, 144 A. 239. It said that the amusement thereby provided was "a thing of value, for it is probably[***33] true that more money is spent each year by the citizens of this country for that purpose than for any other."£ Id. at 267, 144 A. 239. [**951] And, finally, the Court said that the amount of amusement [*425] furnished varied as between players, depending entirely upon the element of chance. n9

n9 The merchandise-dispensing device in Gaither seems to be of a kind contemplated by the legislature when, in § 264B, it expressly included within the definition of a slot machine any coin-operated gambling device which "apart from any element of chance or unpredictable outcome of such operation, [may] also sell, deliver or present some merchandise or money or other tangible thing of value."

   Of course, it has long violated Maryland's gambling laws to maintain a pinball machine which, in lieu of free games won, permits the payment of cash to the successful player. See Hunter v. State, 193 Md. 596, 69 A.2d 505 (1949). In Bell v. Prince George's Co., 195 Md. 21, 72 A.2d 746 (1950), we recognized [***34]that coin-operated mechanical or electrical devices, ostensibly for amusement, have been utilized as gambling devices where free games won by the successful player were "paid off" in cash.  Brown v. State, 210 Md. 301, 123 A.2d 324 (1956) was a gambling prosecution that involved a pinball machine capable of awarding a successful player up to 200 free games. The device contained a switch by which to remove free plays won by a successful operator. At his option, the player would be paid in cash for the free games. We there said that the inducement to play the device, in part at least, was the chance of gaining a monetary reward. We noted the existence of cases from other jurisdictions holding that an award of free games "is generally held to constitute a thing of value" under gambling laws and we observed that "[i]f a pinball machine is not a gambling device per se, it may become one when it is shown that it is in fact put to such use."£ Id. at 307-08, 123 A.2d 324.

   The three elements of gambling -- consideration, chance and reward n10 -- are thus clearly present in a device which, [*426] for a price, and based upon chance, offers a monetary or merchandise reward[***35] to the successful player. And, as earlier indicated, the award of a free game, without more, has in a number of jurisdictions, under statutes of varying import, been construed to constitute a reward in determining whether particular devices violated a state's gambling laws.  See Sinclair v. Benton, 152 Fla. 138, 10 So.2d 917, 918 (1942) ("prize or reward"); Heath Sales Co. v. Bloodworth, 221 Ga. 567, 146 S.E.2d 275, 278 (1965) ("valuable thing"); Territory v. Naumu, 43 Hawaii 66, 68 (1958), aff'd, 273 F.2d 568 (9th Cir.1959) ("anything of value"); Thamart v. Moline, 66 Idaho 110, 156 P.2d 187 (1945) ("credit" and "representative of values"); State v. Wiley, 232 Iowa 443, 3 N.W.2d 620, 622-23 (1942) (general gambling statute prohibiting "machines used for gambling, or any slot machine or device with an element of chance attending such operation"); Steely v. Commonwealth, 291 Ky. 554, 164 S.W.2d 977, 978-80 (1942) ("thing"); Baedaro v. Caldwell, 156 Neb. 489, 56 N.W.2d 706, 710-11 (1953) ("property"); Middlemas v. Strutz, 71 N.D. 186, 299 N.W. 589 (1941) ("property"); Westerhaus Co. v. Cincinnati, 165 Ohio St. 327, 135 N.E.2d 318, 325-27 (1956)[***36] (statute prohibiting "gambling device or machine"); State v. Sandfer, 93 Okla.Crim. 228, 226 P.2d 438 (1951) ("property . . . or any other thing, tangible or intangible, except amusement or entertainment"); Heartley v. State, 178 Tenn. 254, 157 S.W.2d 1 (1941) ("other valuable thing"); State v. One Slot Machine, 305 S.W.2d 386 (Tex.Civ.App.1957) ("property"); Hightower v. State, 156 S.W.2d 327, 328 (Tex.Civ.App.1941) ("anything of value"); State v. Lake Geneva Lanes, Inc., 22 Wis.2d 151, 125 N.W.2d 622 (1963) [**952] ("something of value").  None of these cases indicated whether the particular devices in question contained features indicative of a gambling machine, e.g., odds mechanisms, knock-off switches and free-play recorder meters.

n10 For cases defining the three elements of gambling, see, e.g., State v. Pinball Machines, 404 P.2d 923, 925 (Alaska 1965); Farina v. Kelly, 147 Conn. 444, 162 A.2d 517, 520 (1960); Commonwealth v. Rivers, 323 Mass. 379, 82 N.E.2d 216, 219 (1948); Giomi v. Chase, 47 N.M. 22, 132 P.2d 715, 716 (1942); Kraus v. City of Cleveland, 135 Ohio St. 43, 19 N.E.2d 159, 169 (1939); Commonwealth v. Two Electronic Poker Game Machines, 502 Pa. 186, 465 A.2d 973, 977 (1983); Holliday v. Governor of State of South Carolina, 78 F.Supp. 918, 924-25 (W.D.S.Ca.1948), aff'd, 335 U.S. 803, 69 S.Ct. 56, 93 L.Ed. 360 (1948).

[***37]

   [*427] In a number of other cases that have held a free play to be a reward, the devices contained various indicia of gambling. See State v. Pinball Machines, 404 P.2d 923 (Alaska 1965) (multiple-coin device, search relay, 999 free games, knock-off button, and knock-off meter); Farina v. Kelly, 147 Conn. 444, 162 A.2d 517 (1960) (statute prohibiting "slot machine . . . used or designed for the purpose of a lottery or gaming") (multiple-coin device, 600 free games, payoff adjustment, and tilt mechanism); Vaughan v. Dowling, 243 La. 390, 144 So.2d 371 (1962) ("anything of value") (multiple-coin device, 999 free games, knock-off button, lack of skill, and convertibility to direct payout); Commonwealth v. Rivers, 323 Mass. 379, 82 N.E.2d 216 (1948) ("property of value") (multiple-coin device, 500 free plays, knock-off button, knock-off meter, and convertibility to direct payout); Giomi v. Chase, 47 N.M. 22, 132 P.2d 715 (1942) ("anything of value") (knock-off button); Alexander v. Martin, 192 S.C. 176, 6 S.E.2d 20 (1939) (statute prohibiting "devices pertaining to games of chance . . . except . . . [those] constructed as to give a certain uniform and fair[***38] return in value . . . and in which there is no element of chance") (payoffs on similar machines); State v. Bally Beach Club Pinball Machine, 119 Vt. 123, 119 A.2d 876 (1956) ("thing of value") (multiple-coin device, knock-off button, and, on at least 1 of the 2 machines, cash payoffs); State v. Wassick, 156 W.Va. 128, 191 S.E.2d 283 (1972) ("things of value") (multiple-coin device, tilt mechanism, knock-off button, knock-off meter, and cash payoffs).  The New Jersey court in Rosenkranz v. Vassallo, 193 N.J.Super. 319, 473 A.2d 991 (1984), involving video poker, blackjack and similar devices which awarded free games, concluded that these machines were gambling devices because of various gambling-type mechanisms attached to the devices.  The Pennsylvania court, in consolidated cases reported as Com. v. Two Electronic Poker Game Machines, 502 Pa. 186, 465 A.2d 973 (1983), found a machine to be a gambling device per se, citing the knock-off button, knock-off meter, holdover of scores in successive games, short playing time, and [*428]dip switch to vary game credits.  The court further held that another machine was not a gambling device per se where it contained[***39] neither a knock-off switch nor meter. In Thole v. Westfall, 682 S.W.2d 33 (Mo.App.1984), the court held a free-play device that registered 9,999 games and had a knock-off button and meter to be a gambling device per se because, under those circumstances, the free plays constituted "something of value" under the state gambling statute.

   Other cases have reached different results under a variety of statutory provisions.  In People v. One Mechanical Device, 11 Ill.2d 151, 142 N.E.2d 98, 100 (1957), the court declared that a free play awarded by a device constituted "neither money, the equivalent of money, nor a valuable thing" within the contemplation of that state's gambling laws.  State v. One "Jack and Jill" Pinball Machine, 224 S.W.2d 854 (Mo.App.1949) held that a free play was not "property."£ This interpretation was codified under an amended statute that prohibited reward of "something of value," including replays, but excepted "an immediate right of replay not exchangeable for something of value."£ Matter of: An Omega Brand: Double Up, Etc., 676 S.W.2d 292, 294 (Mo.App.1984). Other cases that have held that free plays are not sufficient rewards include Tanner [***40] v. Sherman, 67 Cal.App.2d 586, 154 P.2d 906 (1945), citing Gayer v. Whelan, 59 Cal.App.2d 255, 138 P.2d 763 (1943) ("merchandise, money, representative or articles of value, checks, or tokens redeemable in, or exchangeable for money or any other thing of value"); State v. Durst, 235 Kan. 62, 678 P.2d 1126 (1984); Games Management Inc. v. Owens, 233 Kan. 444, 662 P.2d 260 (1983) ("something of value"); State v. [**953] One Bally Coney Island No. 21011 Gaming Table, 174 Kan. 757, 258 P.2d 225 (1953) ("property"); McNeice v. City of Minneapolis, 250 Minn. 142, 84 N.W.2d 232 (1957) ("gambling device"); Washington Coin Machine Ass'n v. [*429] Callahan, 79 U.S.App.D.C. 41, 142 F.2d 97 (1944) ("property"). n11

n11 In several of these cases, the court declared that the gambling statutes, being criminal, required a strict construction.

   VII

   The cases from other jurisdictions, relied upon by the parties in support of their respective positions, although instructive, are certainly not[***41] dispositive in ascertaining the intended reach of the key phrase in § 264B "the user may receive or become entitled to receive any piece of money, coin, token or other object representative of [or] convertible into money." n12£ Considering the history underlying the enactment of § 264B, the precise words used in the statute, the Maryland case law antecedent and subsequent to the statute's adoption, and the existing statutes enacted by the General Assembly authorizing licensure of amusement devices in designated jurisdictions, we think the registration of a free play upon a machine adapted as a gambling device, without more, is an "object" within the ambit of § 264B which is representative of or convertible into money.

n12 Under the rule of ejusdem generis, where general words in a statute of uncertain meaning follow the designation of particular things or classes of subjects, the general words will usually be construed to include only those things of the same class or general nature as those specifically antecedently mentioned.  The rule is based on the supposition that if the legislature had intended the general words to be construed in an unrestricted sense, it would not have enumerated the specific things.  See State v. Sinclair & Sinwellan Corp., 274 Md. 646, 658, 337 A.2d 703 (1975); Smith v. Higinbothom, 187 Md. 115, 130, 48 A.2d 754, 761 (1946). Application of the rule is influenced by the remedial nature of the statute.  See Culotta v. Raimondi, 251 Md. 384, 387, 247 A.2d 519, 521 (1968). As Art. 27, § 246 requires that we give liberal interpretation to § 264B, we are of the view that the words "other object" in the statute are not restricted to tangible things, such as money, coin or a token, but may include the registration of a free game upon a gambling device.

[***42]

   To so construe § 264B is consistent with the statutes codified under the subtitle "Pinball Machines and Console Machines," Art. 56, §§ 18-20C.  Sections 18, 19 and 20A, for example, provide for licensing of "free-play pinball [*430]machines" and "free-play console machines" in Baltimore City and nine counties, such devices being defined in these sections as follows:
 
"[A] 'free-play pinball machine' is defined as a machine which, upon the insertion of one or more coins, causes the mechanism to release one or more balls for the use of the player, to be propelled by means of a plunger.

   "Upon the obtaining of certain scores or combinations of numbers, the machine rewards the player with a specified number of free games, allowing the player to continue to play the machine without the insertion of additional coins or tokens. The free-play pinball machine shall not pay out either cash or tokens. . . .  [A] 'free-play console machine' is defined as a machine, the mechanism of which is encased in a wooden or metal cabinet, with a backboard upon which are certain combinations of numbers or symbols which the player must match.  The insertion of one or more coins or tokens[***43] by the player releases the mechanism and causes two or more reels to spin.  If the reels stop on specified combinations, matching those on the backboards, the machine awards the player with a specified number of free games, allowing the player to continue to play the machine without the insertion of additional coins or tokens. The free-play console machine shall not pay out either cash or tokens."
 
Sections 18(3) and 19(3) provide that the maintenance, possession and operation of such licensed devices "and the awarding of free games to players of said machines . . . [**954] are hereby declared to be lawful."£ Section 19(5), as amended by ch. 741 of the Acts of 1963 (the same legislative session at which § 264B was enacted), provides that in Montgomery County only free-play pinball machines and not free-play console devices may be licensed.  That section further provides, also by a 1963 amendment (ch. 590 of the Acts of 1963), that free-play console machines and free-play pinball machines, as earlier described in the section, could not be kept, maintained, operated, or licensed in Wicomico County, except that
  
[*431] "[p]inball machines which are identified[***44] only as amusement devices and do not come within the definition of a 'free-play console machine' or of a 'free-play pinball machine,' and which are not treated and considered as gaming devices under the Internal Revenue Act of the United States (Title 26, U.S.C.A., Chapter 36, § 4461, as amended or supplemented from time to time) may be licensed under and according to the provisions of this subtitle, and kept, maintained, and operated." n13
 
Section 20B, enacted after the adoption of § 264B, authorized licensure of coin-operated amusement devices in Garrett County, including pinball and console machines, "the result of whose operation depends in whole or in part, upon the skill of the operator, whether or not [the device] affords an award to a successful operator."£ Section 20C, enacted by ch. 420 of the Acts of 1984, authorizes licensure of a wide range of coin-operated "amusement devices" in Washington County, including video games, pinball machines and similar devices. Manifestly, none of these licensing provisions authorize the use of the permitted devices for gambling purposes.  As we see it, the licensing provisions, as presently contained in the 1983 Replacement[***45] Volume of the Code and its 1985 Cumulative Supplement, are all presently in effect.  See Code (1984 Repl.Vol.), § 10-201 of the Courts and Judicial Proceedings Article declaring that a code replacement volume, together with any pocket supplements, constitutes evidence of the existing law of Maryland. n14

n13 The rationale of this enactment appears clear from its uncodified preamble which recites that the police and other authorities in Wicomico County found it almost impossible to obtain evidence of "payoffs" for free games registered on pinball or console devices.  As a consequence, it would appear that Wicomico County may only permit licensure of non-free-play pinball and console machines and other like non-free-play amusement devices.

n14 Also passed at the same 1963 legislative session at which § 264B was enacted was ch. 604 of the Acts of 1963, adding a new § 699B to the Public Local Laws of Prince George's County.  That act made it unlawful to keep, maintain, possess, or operate any device or machine "for which payment of the federal tax specified in Sections 4461(A)(2) and 4462(A)(2) of the United States Internal Revenue Code of 1954 as amended is required."

[***46]

   [*432] We think the licensing provisions for amusement devices must be read in pari materia with § 264B and that a true amusement device which awards only free plays is not within the prohibition of § 264B unless the device itself is adapted for gambling. Therefore, a free game awarded upon a device which is not adapted for gambling, i.e., a true free-play machine, is not an object representative of or convertible into money in the sense contemplated by § 264B. We thus find no merit in the State's contention that under § 264B a free play of itself, registered upon a device the operation of which involves the element of chance, is an object representative of or convertible into money because it is the "functional equivalent" of the coin or token otherwise necessary to activate the machine.

   These conclusions are amply supported by § 264B's legislative history.  By eschewing adoption of the Florida and New York statutory schemes, see Chesapeake Beach, supra, 251 Md. at 666, 248 A.2d 479, the Maryland legislature intended that devices which were not adapted for gambling, but which awarded automatic replays and nothing else, were not within the statutory definition[***47] of a slot machine. In adopting the rationale of the federal statutes, [**955] the legislature manifestly intended that a free-play device, equipped with gambling features such as odds mechanisms, a meter for recording the number of free plays released, or other recognized indicia of a gambling device, was a machine adapted for gambling. Consequently, it intended that free games registered upon such a gambling device, without more, would constitute an object representative of or convertible into money and that all such devices were prohibited slot machines under § 264B.

   A prime focus of the Federal Gambling Devices Act of 1962 was upon pinball machines and the extent to which those devices were then being used for gambling purposes.  Cognizant of this fact, the legislature by uncodified § 2 of [*433]§ 264B made special provision to insure that the device "commonly known or colloquially referred to, as 'pinball machine'" would not be deemed a prohibited slot machine as long as it did not permit any reward to a successful player "beyond an automatic replay of a game or games mechanically provided upon said machine."£ While the exclusionary provision is directed only to[***48] true free-play pinball machines, and does not encompass all free-play devices, that alone does not mean that other free-play devices, not adapted for gambling, and which award only free games, are slot machines under the statutory definition. n15£ Dicta in Chesapeake Beach focusing on the import and effect of uncodified § 2 upon the definition of a slot machine does not require a different result.

n15 Webster's Third New International Dictionary 1717 (unabr. ed. 1961) defines a "pinball machine" as "an amusement device often used for gambling that consists of a glass-topped cabinet in which a ball propelled by a plunger rolls down a slanting surface among an arrangement of pins and targets with each contact between ball and target scoring a number of points indicated by a system of electric lights."£ A similar description of a pinball machine appears in Hoke v. Lawson, 175 Md. 246, 1 A.2d 77 (1938). Like definitions are found in §§ 18, 19 and 20A of Art. 56 (distinguishing such devices from console machines) and throughout the literature describing various gaming devices.  See, e.g., Drzazga, Gambling and the Law -- Slot Machines, 43 Journal of Criminal Law, Criminology and Police Science 114, 116-17 (1952); Bilek and Ganz, The Pinball Problem -- Alternative Solutions, 56 Journal of Criminal Law, Criminology and Police Science 432 (1965); Comment, Gambling Today via the "Free Replay" Pinball Machine, 42 Marquette Law Review 98, 100 (1958); Note, Pinball Machines Which Award Free Games as Gambling Devices, 11 Wyoming Law Journal 163, 164 (1957).

[***49]
 
   VIII

   Property that is inherently illegal to possess is contraband per se and subject to summary seizure without proceedings for forfeiture.  Director of Fin., Pr. Geo's Co. v. Cole, 296 Md. 607, 619, 465 A.2d 450 (1983). As slot machines are illegal to possess under § 264B, they are manifestly contraband per se.  See Soper v. Michal, 123 Md. 542, 91 A. 684 (1914); Police Commr's v. Wagner, 93 Md. 182, 183, [*434] 48 A. 455 (1901). The principle is applicable to such devices that are merely stored in a warehouse.  See, e.g., Stanley-Thompson Liquor Co. v. People, 63 Colo. 456, 168 P. 750 (1917); Sterling Novelty Co. v. Commonwealth, 271 S.W.2d 366 (Ky.1954); State v. Madere, 352 So.2d 666 (La.1977). n16£ Indeed, Willow concedes that a free-play machine equipped with gambling features would be contraband per se if, as we have now determined, a free play recorded on such a gambling device is representative of or convertible into money.

n16 Other cases reaching the same result are Bell v. State, 212 Ark. 337, 205 S.W.2d 714 (1947) (seven slot machines); Approximately Fifty-nine Gambling Devices v. People, 110 Col. 82, 130 P.2d 920 (1942)(pinball machines); Davis v. State, 77 Ga.App. 541, 49 S.E.2d 173 (1948) (forty-six slot machines); City of Chicago v. Sayer, 330 Ill.App. 181, 70 N.E.2d 870 (1947) (118 "slot machines," some crated); City of Wichita v. Stevens, 167 Kan. 408, 207 P.2d 386 (1949) (punchboards); Clark v. Holden, 191 Miss. 7, 2 So.2d 570 (1941) (slot machines and payout tables); State v. Appley, 207 S.C. 284, 35 S.E.2d 835 (1945); State v. Branney, 62 Wyo. 40, 160 P.2d 972 (1945) (twenty-five lever slot machines).

[***50]

   The "antique" slot machines seized in this case appear to have been of the [**956]conventional "one-arm" bandit variety, with a coin chute to facilitate direct monetary payment.  Clearly, these devices were contraband per se if not excepted from seizure under the provisions of § 264B(V) for devices manufactured prior to 1941, as held by the Court of Special Appeals.  Section 264B(V) did not, however, become effective until July 1, 1981, six months after Willow's antique slot machines were seized by the police.  Accordingly, at the time of their seizure, they were inherently illegal to possess, were contraband per se and thus subject to immediate seizure without further proceedings.  That the State filed a forfeiture petition after the effective date of § 264B(V), although not required to do so, does not alter the fact that the State's interest in the devices vested immediately upon seizure.  Moreover, under the provisions of Code (1981 Repl.Vol.), Article 1, § 3, the 1981 amendment of § 264B did not affect the legality of the [*435] forfeiture in this case, which was completed as of December 30, 1980. n17

n17 Section 3 provides:

    "The repeal, or the repeal and reenactment, or the revision, amendment or consolidation of any statute, or of any section or part of a section of any statute, civil or criminal, shall not have the effect to release, extinguish, alter, modify or change, in whole or in part, any penalty, forfeiture or liability, either civil or criminal, which shall have been incurred under such statute, section or part thereof, unless the repealing, repealing and reenacting, revising, amending or consolidating act shall expressly so provide; and such statute, section or part thereof, so repealed, repealed and reenacted, revised, amended or consolidated, shall be treated and held as still remaining in force for the purpose of sustaining any and all proper actions, suits, proceedings or prosecutions, civil or criminal, for the enforcement of such penalty, forfeiture or liability, as well as for the purpose of sustaining any judgment, decree or order which can or may be rendered, entered or made in such actions, suits, proceedings or prosecutions imposing, inflicting or declaring such penalty, forfeiture or liability."

[***51]

   IX

   The Court of Special Appeals found certain of the devices to be inoperable and therefore not within the statutory definition of a slot machine. It relied upon its earlier holding in Allen v. State, 18 Md.App. 459, 307 A.2d 493 (1973) that devices which are only adaptable, but not actually adapted for use as slot machines, are not within the prohibition of § 264B.  The court pointedly indicated in Allen that if the legislature intended a broader definitional sweep so as to encompass inoperable devices, it could change the law to prohibit those devices which are merely adaptable for such use.  In the present case, the intermediate appellate court noted that over ten years had elapsed since Allen was decided and the legislature has not altered the definition of a slot machine under § 264B to include inoperable devices.  59 Md.App. at 61, 474 A.2d 545.

   The devices in Allen consisted of an empty slot machine case, a reel mechanism for a slot machine, and a one-arm, console-type slot machine from which various parts necessary for it to operate had been removed.  The court concluded [*436] that the words in § 264B, "is adapted" for use, meant that the statute[***52] "covers only devices which are fit, or adjusted, for use as slot machines."£ 18 Md.App. at 465, 307 A.2d 493 (emphasis in original). While the inoperable devices in the present case were not as clearly described as in Allen, it does not appear that their inoperability was calculated or contrived as an expedient for avoiding the prohibition of § 264B against the possession of slot machines. In view of the legislature's silence in the years following the Allen decision, we conclude that the inoperable devices in this case were not subject to seizure.

   Conclusion

   We hold that all of the seized coin-activated, free-play devices in Willow's possession, which involved an element of chance and which were equipped with odds mechanisms, or a meter for recording the number of free plays released, or other established indicia of a gambling device, are illegal slot [**957] machines under § 264B and subject to forfeiture as contraband per se.  On the other hand, those free-play devices in Willow's possession, not adapted for gambling, which award automatic replays only, and which contain nothing more than a knock-off switch, are not slot machines under the statutory[***53] definition. Other of Willow's devices in question which award a successful player, directly or indirectly with money or merchandise, including the so-called antique slot machines, are clearly forfeitable as contraband per se under the statute.  Devices otherwise within the statutory definition, but which are inoperable, are not slot machines where, as in Allen and as here, there is no indication that the devices were rendered inoperable solely to avoid seizure for violation of § 264B. n18

n18 We have considered but find no merit in Willow's contention that the issues concerning the antique and inoperable devices were not included in the State's petition for certiorari.

   In distinguishing between the various devices involved in this case, we have given due regard to the provisions of [*437] § 264 of Art. 27 which require that we construe statutes "relating to gambling and betting liberally, so as to prevent the mischiefs intended to be provided against."£ See Chesapeake Beach, supra, 251 Md. [***54] at 662, 248 A.2d 479.

   JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED IN PART AND REVERSED IN PART; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REMAND THE MATTER TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  EACH PARTY TO PAY OWN COSTS. 

Tommie BROADWATER, Jr. v. STATE of Maryland et al. 
No. 11, (Adv.), September Term, 1985
 
Court of Appeals of Maryland
 
303 Md. 461; 494 A.2d 934; 1985 Md. LEXIS 613

 July  15, 1985

   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 VACATED AND CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION; COSTS TO ABIDE THE RESULT.

CORE TERMS:  declaration, demurrer, declaratory judgment, motion to dismiss, declaratory judgment action, registered voter, election, declare, amend, voter, justiciable issue, proposed amendment, cause of action, registered, ballot, justiciable controversy, declaration of rights, declaratory decree, declaratory relief, subject matter, immaterial, failure to state a claim, constitutional amendment, general election, appointment, confinement, completion, nomination, convicted, candidates

COUNSEL: Eric S. Slatkin and Karl G. Feissner, Langley Park, Maryland (John E. Beckman, Jr., Mareen L. Duvall, Jr., and Feissner & Beckman, Langley Park, Maryland, on the brief), for appellant.

   Peter E. Keith, Assistant Attorney General, Baltimore, Maryland (Stephen H. Sachs, Attorney General, Jack Schwartz, Assistant Attorney General, Baltimore, Maryland, on the brief), for appellee.

JUDGES: Murphy, C.J., and Smith, Eldridge, Cole, Rodowsky, Couch and McAuliffe, JJ.

OPINIONBY: SMITH

OPINION: [*462] [**934] In this declaratory judgment action a trial judge failed to declare the rights of the parties and granted the State's motion to dismiss under Maryland Rule 2-322(b) for failure to state a claim upon which relief could be granted. n1£ This was directly contrary to numerous of our cases.  For that reason we shall not decide the interesting question presented and shall remand the case to the Circuit Court for Anne Arundel County for [***2]further proceedings.

 n1 Prior to July 1, 1984, under Maryland Rules 345 and 371b the motion would have been known as a demurrer.

   The facts which we shall recite are gleaned from the complaint for declaratory judgment filed in the Circuit Court for Anne Arundel County by appellant, Tommie Broadwater, Jr.  Broadwater is a former member of the Maryland Senate.  As he puts it, he "is anxious to place his name before the voters as a Senator from Prince George's County."£ He was convicted in the United States District Court for the District of Maryland of conspiracy, unauthorized acquisition of food stamps, aiding and abetting, etc.  On October 19, 1983, he was sentenced to imprisonment for three years with a total confinement of six months and a fine of $20,000.  The remainder of the prison sentence was suspended and Broadwater was placed on probation for a period of four years following his release from confinement. The terms of probation included that he make restitution in the amount of $18,420 to the U.S. Department[***3] of Agriculture and that he complete 1,000 hours of community service.  His name was stricken from the registry of qualified voters in Prince George's County pursuant to the provisions of Maryland Code (1957, 1983 Repl.Vol.) Art. 33, § 3-4(c) which states:

   [**935] "No person shall be registered as a qualified voter if he has been convicted of theft or other infamous crime, unless he has been pardoned, or, in connection with his [*463] first such conviction only, he has completed any sentence imposed pursuant to that conviction, including any period of probation imposed by virtue of parole or otherwise in lieu of a sentence or part of a sentence."

   In 1984 the General Assembly proposed to the people of Maryland an amendment to Md.Const. art. 1, § 12 stating:

   "Except as otherwise specifically provided herein, a person is ineligible to enter upon the duties of, or to continue to serve in, an elective office created by or pursuant to the provisions of this Constitution if the person was not a registered voter in this State on the date of the person's election or appointment to that term or if, at any time thereafter and prior to completion of the term, the person ceases[***4] to be a registered voter."
 
This proposal was ratified by the people of Maryland at the general election of 1984.  Prior to that time Maryland law required candidates for nomination at a party primary to be registered voters. However, persons seeking by petition to appear upon the ballot as candidates were not required to be registered voters.

   On September 6, 1984, Broadwater filed a complaint for declaratory judgment in the Circuit Court for Anne Arundel County against the State, the then Administrator of Election Laws, and the Secretary of State.  He sought to block placement of the proposed constitutional amendment on the ballot at the 1984 general election, or, alternatively, a ruling that the proposed amendment was in conflict with three provisions of the Maryland Constitution.

    Appellees moved to dismiss the complaint pursuant to Rule 2-322(b) for failure to state a claim. They urged that the proposed amendment could not violate the Maryland Constitution and was consistent with U.S. Const. amend. XIV.  In response to that motion Broadwater submitted memoranda in which he further argued that the proposal violated the Fourteenth Amendment as well as the bill of attainder[***5] clause.

   The trial judge heard oral argument.  He then stated that "having had the opportunity to have the pleadings . . . well [*464] ahead of time [, he had] had a chance to review the law . . . [and was] prepared to make a ruling [that day] on the Motion to Dismiss."£ He said that although "focus on this particular [constitutional] provision [might be] as a result of Mr. Broadwater's conviction and his being put out of the Senate by the body that has the power to do that [,] . . . focus on a provision isn't enough to say that the provision itself . . . being presented to the people is directed at him."£ He stated that the bill "certainly cannot be said to be unconstitutional when it's a right of the people to modify their own Constitution at any time."£ As to a bill of attainder, he observed, "This is not an attempt to legislatively determine guilt without a trial," adding that the amendment in question "is not specifically aimed at [Broadwater] because it covers a much broader spectrum of persons who would be in the future filing for public office."£ As to Broadwater's contention that he was then circulating petitions for his nomination for the Maryland Senate[***6] and that a determination should be made that those petitions were valid and thus he was nominated because the then existing law did not require that a potential nominee by petition be a registered voter, the judge said:
 
"[I]f the people of the State of Maryland adopt this provision to the Constitution, whoever files in 1986 has to be governed by what the law is at that time.  If he is saying that what the law is now continues over to 1986, I think that the Constitutional Amendment itself covers that that he not only after the election but as to -- it mentions that prior to the completion of the term the person ceases to be a registered voter -- well, 'or was not a registered voter in the State on the date of the person's election or appointment to that term.'

   [**936] "So he would have to be eligible as of the date of the election, not necessarily now.  So I don't think that that means an awful lot."
 
He concluded:

   "But all told, I don't think that the complaint states a cause of action that would require any taking of testimony.  [*465] And I think the law is clear that people have the right to vote on this proposed amendment to the Constitution, and[***7] so I will grant the State's Motion to Dismiss."
 
Counsel for Broadwater then moved to amend his complaint, which motion was denied.  The trial judge then passed an order denying Broadwater's motion for summary judgment, granting appellees' motion to dismiss, and dismissing the complaint for declaratory judgment with prejudice.

   Broadwater appealed to the Court of Special Appeals.  We issued a writ of certiorari on our own motion prior to argument in the intermediate appellate court in order that we might address the important public question here presented.  It is with regret that we find that we are unable to address those issues.

   Legions of our cases hold that a demurrer, the type of motion to dismiss here involved, is rarely appropriate in a declaratory judgment action. See, e.g., State v. Burning Tree Club, 301 Md. 9, 16-18, 481 A.2d 785, 788-89 (1984); City of Bowie v. Area Dev. Corp., 261 Md. 446, 456, 276 A.2d 90, 95 (1971); Borders v. Board of Education, 259 Md. 256, 258-59, 269 A.2d 570, 571 (1970); Balto. Import Car v. Md. Port Auth., 258 Md. 335, 338-39, 265 A.2d 866, 867-68 (1970); Merc.-Safe Dep. & Tr. v. Reg. of Wills, 257 Md. 454, 459, 263[***8] A.2d 543, 545-46 (1970); Kacur v. Employers Mut. Cas. Co., 253 Md. 500, 504 n.2, 254 A.2d 156, 158 n.2 (1969); Woodland Beach Ass'n v. Worley, 253 Md. 442, 447-48, 252 A.2d 827, 830 (1969); Causey v. Gray, 250 Md. 380, 391, 243 A.2d 575, 583-84 (1968); Garrett County v. Oakland, 249 Md. 400, 401-02, 240 A.2d 228, 229 (1968); Hunt v. Montgomery County, 248 Md. 403, 408-10, 237 A.2d 35, 37-39 (1968); Queen Anne's County v. Miles, 246 Md. 355, 362, 228 A.2d 450, 453 (1967); Myers v. Chief of Fire Bureau, 237 Md. 583, 591, 207 A.2d 467, 471 (1965); Kelley v. Davis, 233 Md. 494, 498, 197 A.2d 230, 231 (1964); Md. Committee v. Tawes, 228 Md. 412, 419-20 n.4, 180 A.2d [*466] 656, 659 n.4 (1962); Shapiro v. County Comm., 219 Md. 298, 302-03, 149 A.2d 396, 398-99 (1959).

   In Shapiro Judge Prescott said for the Court:

   "It should be borne in mind that a demurrer is rarely appropriate in a declaratory judgment action. Where a bill of complaint shows a subject matter that is within the contemplation of the relief afforded by the declaratory decree statute, and it states sufficient facts to show the existence of the subject matter and the dispute[***9] with reference thereto, upon which the court may exercise its declaratory power, it is immaterial that the ultimate ruling may be unfavorable to the plaintiff.  The test of the sufficiency of the bill is not whether it shows that the plaintiff is entitled to the declaration of rights or interest in accordance with his theory, but whether he is entitled to a declaration at all; so, even though the plaintiff may be on the losing side of the dispute, if he states the existence of a controversy which should be settled, he states a cause of suit for a declaratory decree. 1 Anderson, Declaratory Judgments, Section 318."£ 219 Md. at 302-03, 149 A.2d at 398-99.

   The inappropriateness of a demurrer to the merits in a declaratory judgment action was further noted for the Court by Chief Judge Hammond in Hunt:
 
"The reason is plain why a demurrer should be used in declaratory judgment actions only to challenge the legal availability or appropriateness of the remedy.
 
'Where the plaintiff's pleading sets forth an actual or justiciable controversy, it is not subject to demurrer since it sets forth a cause of action, even [**937]though the plaintiff may not be entitled[***10] to a favorable declaration on the facts stated in his complaint; that is, in passing on the demurrer, the court is not concerned with the question whether the plaintiff is right in a controversy, but only with whether he is entitled to a declaration of rights with respect to the matters alleged.'£ 22 Am. Jur.2d Declaratory Judgments, § 91 (1965)."

    [*467] 248 Md. at 409, 237 A.2d at 38.

   We have mentioned situations in which a demurrer or, now, a motion to dismiss would be proper.  For instance, if there were no justiciable controversy a motion to dismiss would lie.  Burning Tree, 301 Md. at 16-18, 481 A.2d at 788-89; Hamilton v. McAuliffe, 277 Md. 336, 341, 353 A.2d 634, 637 (1976). In Apostol v. Anne Arundel County, 288 Md. 667, 676, 421 A.2d 582, 587 (1980), where taxpayers were challenging the validity of a tax in a declaratory judgment proceeding we held that the circuit court's denial of affirmative relief was correct because the payment of the tax by the plaintiffs extinguished their cause of action. Judge Barnes gave another example for the Court in Woodland Beach Ass'n, stating:

   "Speaking generally, it is only when the declaration sought[***11] does not present a justiciable issue -- as, for example, if a husband in a declaratory judgment suit seeking a divorce prayed for a declaration that his wife was guilty of constructive desertion, such a declaration being specifically excluded by § 6 of the Act -- that a demurrer would be appropriate, if the lack of a justiciable issue clearly appeared on the face of the bill of complaint or declaration."£ 253 Md. at 448, 252 A.2d at 830.

   On the facts of this case the State erred in moving to dismiss for failure to state a cause of action and the trial judge erred in granting the motion to dismiss. It follows, therefore, that the trial judge should have declared the rights of the parties even if such declaration might be contrary to the desires of the plaintiff.  In Takoma Pk. v. Citizens for Decent Gov't, 301 Md. 439, 483 A.2d 348 (1984), we said:
 
"[W]hether the board of supervisors of elections had the right to reconsider its opinion . . . was irrelevant once an action for declaratory judgment was brought and the trial court was requested to determine whether the petition was a proper one to go on the ballot. It then became [*468] necessary that the trial [***12]court pass upon and adjudicate the issues raised."£ 301 Md. at 445, 483 A.2d at 352.
 
Numerous of our cases have said that in a declaratory judgment action the court must declare the rights of the parties.  See, e.g., Jennings v. Government Employees Ins., 302 Md. 352, 355-56, 488 A.2d 166, 167-68 (1985); East v. Gilchrist, 293 Md. 453, 461 n.3, 445 A.2d 343, 347 n.3 (1982); Shimp v. Shimp, 287 Md. 372, 376-77, 412 A.2d 1228, 1230 (1980); Mauzy v. Hornbeck, 285 Md. 84, 90-92, 400 A.2d 1091, 1095 (1979); Robert T. Foley Co. v. W.S.S.C., 283 Md. 140, 155, 389 A.2d 350, 359 (1978); Donnelly Adv. Corp. v. City of Balto., 279 Md. 660, 672, 370 A.2d 1127, 1134 (1977); Dart Drug Corp. v. Hechinger Co., 272 Md. 15, 29, 320 A.2d 266, 274 (1974); Logan v. Town of Somerset, 271 Md. 42, 45-46, 314 A.2d 436, 438 (1974); Isle of Thye Land Co. v. Whisman, 262 Md. 682, 706, 279 A.2d 484, 497 (1971); Bruce v. Dir., Chesapeake Bay Aff., 261 Md. 585, 588 n.1, 276 A.2d 200, 202 n.1 (1971); City of Bowie, 261 Md. at 456, 276 A.2d at 95; Woodland Beach, 253 Md. at 447-48, 252 A.2d at 830; Downing Dev. Corp. v. Brazelton, 253 Md. 390, 394, 252 A.2d[***13] 849, 851-52 (1969); Causey, 250 Md. at 391, 243 A.2d at 583-84; Garrett County, 249 Md. at 404, 240 A.2d at 231; Savings Bank v. Bank Comm'r., 248 Md. 461, 470, 237 A.2d 45, 50 (1968); Hunt, 248 Md. at 408-10, 237 A.2d at 37-39; Queen Anne's County, 246 Md. at 362, 228 A.2d at 453; Reed v. Pres. of North East, 226 Md. 229, 253-54, 172 A.2d 536, 547-48 (1961); John B. Robeson v. Gardens, 226 Md. 215, 219 n.1, 172 A.2d 529, 530 n.1 (1961); Case v. Comptroller, 219 Md. 282, 288, 149 A.2d 6, 9 (1959); Armiger v. Lewin,[**938] 216 Md. 470, 478, 141 A.2d 151, 155-56 (1958); Mohr v. Universal C.I.T. Corp., 216 Md. 197, 211, 140 A.2d 49, 55-56 (1958).

   There are instances in which a trial court in a declaratory judgment proceeding may properly not declare the rights of the parties.  For instance, in Koontz v. Ass'n of Classified Emp., 297 Md. 521, 529-30, 467 A.2d 753, 758 (1983), we found dismissal of the proceeding was proper because the question was moot.  In Chairman of Board v. Waldron, [*469] 285 Md. 175, 183, 401 A.2d 172, 176-77 (1979), we found that because a case lacked the necessary parties a declaration could not be made. [***14]

   No reason was stated by the trial judge or any of the parties why Broadwater was not entitled to a declaration of his rights, even though the declaration might possibly be other than that sought by him.  We said in Causey, 250 Md. 380, 243 A.2d 575:

   "Even in regard to the paragraphs of the bill of complaint concerning the alleged oral agreement, the allegations present a case for declaratory relief as a justiciable issue is raised.  It is immaterial to the granting of declaratory relief that the court might possibly rule against the plaintiff and declare that the oral contract was unenforceable because of the provisions of the Statute of Frauds."£ 250 Md. at 391, 243 A.2d at 583 (emphasis in original).
 
Although the trial judge seemed in his oral opinion to be deciding against the view advanced by Broadwater, he failed to clearly delineate the rights of the parties.  For purposes of appellate review we need the trial judge's analysis of the issues presented.

   It follows, therefore, that the trial judge erred both in granting the motion to dismiss and in failing to declare the rights of the parties.  Accordingly, we must vacate the judgment and remand the case for[***15] further proceedings consistent with this opinion.  That does not completely dispose of the matter, however, because Broadwater indicated here and in the trial court a desire to amend his complaint.  In Crowe v. Houseworth, 272 Md. 481, 325 A.2d 592 (1974), Judge Singley said for the Court:

   "We have said that amendments should be freely allowed in order to promote justice, Earl v. Anchor Pontiac Buick, Inc., 246 Md. 653, 656, 229 A.2d 412, 414 (1967) so that cases will be tried on their merits rather than upon the niceties of pleading, Hall v. Barlow Corp., 255 Md. 28, 39-40, [*470] 255 A.2d 873, 878 (1969)."£ 272 Md. at 485, 325 A.2d at 595.
 
It follows, therefore, that upon the remand Broadwater should be permitted to amend his complaint.

   JUDGMENT VACATED AND CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION; COSTS TO ABIDE THE RESULT. 

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Kenneth DaleSHORT 
Misc. (BV) No. 20, September Term, 1984
 
Court of Appeals of Maryland
 
303 Md. 317; 493 A.2d 362; 1985 Md. LEXIS 606

 June  11, 1985

   PRIOR HISTORY: [***1]  
Circuit Court for  Anne Arundel  County Raymond G. Thieme, Jr. 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 BV15 c FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST KENNETH DALE SHORT.

CORE TERMS:  law firm, misappropriation, misconduct, deposited, promptly, wrongdoing, involves moral turpitude, final adjudication, conclusive proof, funds belonging, essential facts, disbarment, belonging, withdrawn, disputed

COUNSEL: Melvin Hirshman, Bar Counsel and Kendall R. Calhoun, Assistant Bar Counsel to Attorney Grievance Commission of Maryland, Annapolis, Maryland, for petitioner.

   Russell J. White, Esq., Towson, Maryland, for respondent.

JUDGES: Murphy, C.J., and Smith, Eldridge, Cole, Rodowsky, Couch and McAuliffe, JJ.

OPINIONBY: PER CURIAM

OPINION: [*318] [**362] The Attorney Grievance Commission, acting through Bar Counsel, filed a petition against Kenneth Dale Short, alleging violations of DR 1-102(A) and DR 9-101(A) and (B) of the Code of Professional Responsibility.  We referred the matter, pursuant to Maryland Rule BV9 b to Judge Raymand G. Thieme, Jr., Associate Judge of the Circuit Court for Anne Arundel County, to make findings of fact and [*319] conclusions of law. After conducting an evidentiary hearing, Judge Thieme made the following findings: [***2]

   "The Petitioner alleges that the Respondent had breached his duties as an attorney by being convicted of a crime that involved misconduct [Md.Code, 1981 Repl.Vol., Art. 10, para. 44].  Specifically, the Respondent failed to preserve the identity of funds and property of a client.  The essential facts are not in dispute.  A copy of the criminal docket sheet indicates that on October 1, 1984, the Respondent was found guilty of misappropriating funds which would have properly escheated to the State.  The sentence imposed was suspended and restitution in the amount of $21,210.52 was ordered.  The Respondent does not contest these essential facts. At the hearing herein, the Respondent, as permitted under Maryland Rule BV10(e)(2), introduced mitigating evidence on the circumstances that led to the wrongdoing. The testimony showed that prior to the wrongdoing, Respondent, on the one hand, suffered a disabling heart attack which prevented him from working, while on the other hand, pressure from his financial obligations, [**363] over which he had little control, were increasing.  He turned to the misappropriation as a means to solve his immediate financial burdens.  The Respondent[***3] attempted to justify this conduct by the noting on his records of the estates in question that "loans" were made to him. The Respondent hoped to be able to replace the funds before the absence was discovered.  A character witness, Reverend Carroll Kellbough testified that it was his belief that the Respondent was not a criminal and that his actions were not done with an intent to cause deliberate injury to anyone.  The Court is satisfied from the demeanor and the behavior of the Respondent in the courtroom that he now clearly recognizes the seriousness of his conduct and he truly repents his wrongdoing.

   LAW

   Under Maryland Rule BV10(e)(1) the final adjudication by a judicial tribunal in another proceeding convicting an attorney of a crime is conclusive proof of the guilt of the [*320] attorney of that crime.  The Circuit Court for Baltimore County found the Respondent guilty of the misappropriation of funds belonging to another.

   Disciplinary Rule 9-102 A and B states:
"Preserving Identity of Funds and Property of Client.

   (A) All funds of clients paid to a lawyer or a law firm, other than advances for costs and expenses, shall be deposited in one or more identifiable bank [***4]accounts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:

   (1) Funds reasonable sufficient to pay bank charges may be deposited therein. 

   (2) Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.
(B) A lawyer shall:

   (1) Promptly notify a client of the receipt of his funds, securities, or other properties.

   (2) Identify and label securities and properties of a client promptly upon receipt and place them in a safe deposit box or other place of safekeeping as soon as practicable.
 
   (3) Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them.

   (4) Promptly pay or deliver to the client as requested by a client the funds, securities, [***5] or other properties in the possession of the lawyer which the client is entitled to receive."

   The Court is not clearly convinced from the evidence that the actions of the Respondent were a violation of this [*321] Disciplinary Rule 9-102(A) and (B).  Simply, insufficient evidence has been produced.

   Disciplinary Rule 1-102(A) reads as follows:
"Misconduct.

   (A) A lawyer shall not:
 
(1) Violate a Disciplinary Rule.
 
(3) Engage in illegal conduct involving moral turpitude.
 
(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. 
 
(5) Engage in conduct that is prejudicial to the administration of justice.
 
(6) Engage in any other conduct that adversely reflects on his fitness to practice law."

   The Court of Appeals has held that the misappropriation of a client's funds involves moral turpitude. Attorney Grievance Commission of Maryland v. Moore, 301 Md. 169, 482 A.2d 497 (1984). This Court accepting the findings, as it must, of the Baltimore County Circuit Court finds [**364] that the Respondent did by his action clearly violate Disciplinary Rule 1-102(A)."

   Respondent did not take any exceptions to Judge Thieme's[***6] findings. Bar Counsel has recommended disbarment.

   Under Maryland Rule BV10 e 1 the final adjudication of respondent's misconduct by the Circuit Court for Baltimore County "is conclusive proof of the misconduct in the hearing of charges pursuant to this Rule."£ Moreover, we have said time and again that misappropriation of a client's funds involves moral turpitude which will result in disbarment in the absence of compelling extenuating circumstances justifying a lesser sanction.  Respondent has not presented any such circumstances and, accordingly, disbarment is the appropriate sanction in this case.  See Attorney Griev. Comm'n v. Harper, 300 Md. 193, 477 A.2d 756 (1984); Attorney Griev. Comm'n v. Mason, 295 Md. 49, 453 A.2d 143 (1982); Attorney Griev. Comm'n v. Pattison, 292 Md. 599, [*322] 441 A.2d 328 (1982); Bar Ass'n v. Marshall, 269 Md. 510, 307 A.2d 677 (1973).

   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 BV15 c FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST KENNETH DALE SHORT. 

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Sol Zalel ROSEN 
Misc. (Subtitle BV) No. 17, September Term, 1984
 
Court of Appeals of Maryland
 
303 Md. 60; 492 A.2d 289; 1985 Md. LEXIS 581

 May  13, 1985, Opinion

   PRIOR HISTORY: [***1]
 
Order April 22, 1985.  Circuit Court for  Anne Arundel  County, Raymond G. Thieme, Jr., Judge.  Circuit Court for  Anne Arundel  County Raymond G. Thieme, Jr. JUDGE.

CORE TERMS:  resign, appropriate sanction, outstanding, deliberate, misconduct

COUNSEL: Melvin Hirshman, Annapolis, Bar Counsel to Atty. Grievance Com'n of Maryland, for petitioner.

   David Epstein, Washington, District of Columbia, for respondent.

JUDGES: Murphy, C.J., and Smith, Eldridge, Cole, Rodowsky, Couch and McAuliffe, JJ.

OPINIONBY: MURPHY

OPINION: [*61] [**289] ORDER

   The Respondent having been charged by the Attorney Grievance Commission, acting through Bar Counsel, with violations of the Code of Professional Responsibility; and

   Judge Raymond G. Thieme, Jr. of the Circuit Court for Anne Arundel County, to whom the matter was referred pursuant to Maryland Rule BV9 b, having found that Respondent violated DR 1-101 and DR 1-102(A)(4) and (6) in making a materially false statement on a petition to take the out-of-state attorney Maryland Bar Examination and that such false statement, although not intentional, was made with such reckless indifference as to constitute "the legal equivalent of deliberate"; and

   Bar Counsel having recommended disbarment as the appropriate sanction for Respondent's[***2] misconduct; and

   [**290] Respondent having excepted to Judge Thieme's findings, claiming that his false answer was neither intentional nor deliberate but rather amounted to a misrepresentation resulting from the negligent misreading of questions on the petition; and

   The Respondent having suggested that an appropriate sanction for his misconduct would be resignation from the Maryland Bar, pursuant to Maryland Rule BV12; and

   It being required by BV12 a that an application to resign from the Maryland Bar be submitted in writing to this Court, stating the reasons therefor; and

   [*62] The rule further requiring that an attorney may not resign while proceedings are pending against him involving allegations of misconduct; and

   It appearing prudent to the Court in the circumstances of this case to afford Bar Counsel and the Respondent an opportunity to confer as to whether Bar Counsel would be willing to dismiss all pending charges against the Respondent upon the Respondent's filing an application with the Court to forthwith resign with prejudice from the Maryland Bar and upon payment of outstanding costs in these proceedings in the amount of One Hundred Fifty-Four and 00/100 Dollars [***3]($154.00).

   It is therefore this 22nd day of April, 1985, by the Court of Appeals of Maryland,

   ORDERED that no action be taken by the Court on the pending Petition for Disciplinary Action against Respondent for a period of 15 days from the date of the filing of the Order in this case; and it is further

   ORDERED that Bar Counsel and Respondent advise the Court prior to the expiration of the 15-day period as to the result of the action, if any, to be taken as a result of this Order.

   ORDER

   Bar Counsel and Respondent having conferred in pursuance of the Court's Order of April 22, 1985, and

   The Respondent thereafter having filed an application with the Court to resign from the Bar of Maryland with prejudice, the application stating that Respondent would not reapply for admission at any time in the future, and

   Bar Counsel having expressed no objection to the dismissal of the charges pending against Respondent provided the Court grant the Respondent's application to resign with prejudice from the Maryland Bar, and

   [*63] The Respondent having paid the outstanding costs in these proceedings in the amount of One Hundred Fifty-Four and 00/100 Dollars ($154.00); and

   The Court having[***4] found Respondent's application to resign to be in proper form, it is this 13th day of May, 1985,

   ORDERED, by the Court of Appeals of Maryland, that the application of the Respondent, Sol Zalel Rosen, to resign with prejudice from the Maryland Bar be, and it is hereby, granted and it is further

   ORDERED that the pending charges in the above entitled case as well as the charges in the case of Attorney Grievance Commission of Maryland v. Sol Zalel Rosen, Misc. Docket (Subtitle BV) No. 28, September Term, 1984 be, and they are hereby, dismissed. 

Robert B. DONALD et al. v. Steuart CHANEY et al. 
No. 57, September Term, 1984
 
Court of Appeals of Maryland
 
302 Md. 465; 488 A.2d 971; 1985 Md. LEXIS 548

 March  7, 1985

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County - Judge James C. Cawood, Jr.).

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS VACATED AND CASE REMANDED TO THAT COURT FOR THE ENTRY OF AN ORDER VACATING THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AND REMANDING THE CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  COSTS TO BE PAID BY THE APPELLEES.

CORE TERMS:  purchaser, settlement, unpaid balance, bid, ratification, mortgage, equitable, decree, financing, mortgagee, resale, purchase price, bidder, judicial sale, general rule, payment of interest, pay interest, collected, partner, dollar, terms of sale, delayed, obligation to pay, proceeds of sale, purchase money, cash box, foreclosure, chancellor, relaxation, justifying

COUNSEL: William M. Simmons, Annapolis, Maryland (Michaelson & Simmons, P.A., Annapolis, Maryland, on the brief), for appellant.

   Sara H. Arthur, Annapolis, Maryland (Steven R. Migdal, Manis, Wilkinson, Snider & Goldsborough, Chartered, Annapolis, Maryland, on the brief), for appellee.

JUDGES: Murphy, C.J., and Smith, Cole, Rodowsky and Couch, JJ., and W. Albert Menchine, Associate Judge of the Court of Special Appeals (retired), Specially Assigned.

OPINIONBY: MENCHINE

OPINION: [*467] [**972] This appeal is a spin-off from real estate mortgage foreclosure proceedings instituted in the Circuit Court for Anne Arundel County on behalf of Huffman, et ux., mortgagees against Herring Bay Partnership (Partnership) and others, mortgagors.  The waterfront[***2] real estate of substantial acreage had been operated as a marina with slips for 200 boats.

   The appellants, Robert B. Donald, Arnold C. Gay and Donald E. Zinn (Claimants), occupied a dual role in the proceedings: (1) as three of four limited partners in the Partnership n1 and (2) as Claimants to a distributive share of the proceeds of the mortgage sale as creditors of the Partnership.  The Appellees, Steuart Chaney, Richard Chaney and George M. King (Purchasers), were the high bidders for the property at $1,150,000 at the mortgage sale.

n1 The fourth limited partner was Robert DeStefano, who did not join in a petition seeking interest payments from the Purchasers to be discussed infra and who opposed appellants' claim against the proceeds of sale.

   Claimants' entitlement to payment from the proceeds of sale was junior to all other creditors.  Those proceeds were insufficient to pay Claimants in full unless Purchasers were [*468] required to pay interest upon the unpaid balance of the sales price from[***3] ten days after the date of the court's ratification of the sale (December 27, 1982) to the date of settlement. Claimants filed a petition seeking a court order "to require assignee to collect and purchaser to pay" such interest.  Purchasers answered the petition seeking dismissal on equitable grounds.  The assignee for foreclosure did not respond to the petition and has taken no position with respect to the dispute.

   The relief sought by Claimants was denied by the chancellor and on appeal the Court of Special Appeals affirmed in a unreported opinion.  We granted certiorari to consider the question.

   Claimants contend that the general rule applicable to sales at foreclosure requires purchasers at mortgage sale to pay interest upon the unpaid balance of the purchase price from the date prescribed for settlement to the actual date thereof, and that there are no equitable considerations justifying relaxation of the rule.  Purchasers contend that under the facts and circumstances of the case, determination of the question fell within the judicial discretion of the chancellor and that the same was properly exercised.

   The general chancery practice concerning interest payments on sales[***4] under court decree is of ancient lineage.  Chancellor Bland, in Brown v. Wallace , 2 Bland 585, 594 (same case 4 G. & J. 479, 486) (1830), had declared:

   "It is a general rule as to sales under decrees of this Court, that the purchaser always pays interest, according to the terms of the decree, from the day of sale, whether he gets possession or not.  His getting possession is, in no case, allowed to be a condition precedent to the payment of either principal or interest of the purchase money.  The purchaser is presumed to regulate his bidding with a view to the known powers and rules of the Court as to delivering possession.  There is, therefore, nothing in this objection, even supposing this purchaser himself to have been in no default; and, by promptly [*469] giving his bond, to have so clothed himself with an equity to demand a delivery of possession immediately after the sale had been finally ratified."£ (Emphasis added.)

    Again in Wagner, et al. v. Cohen, 6 Gill 97, 102-03 (1847), it was said:

   "It is certainly true that a contract of sale made between the Court as the vendor of the property, through the agency of a trustee, and the purchaser, is never[***5] regarded as consummated until it has received the sanction and ratification of the Court. . . .

   "Although this is the character of the imperfect right acquired by a purchaser at a sale of this kind; yet, it gives to him, [**973] an inchoate and equitable title which becomes complete by the ratification of the Court. When this is accomplished, the ratification retroacts, and he is regarded by relation as the owner from the period of the sale.  He is as such proprietor entitled to the intermediate rents and profits of the estate; he cannot escape from the sale, because, he may believe it to be disadvantageous, and is bound to pay interest on the purchase money from its date; and has, therefore, a direct and strong interest in protecting the property from injury, and rendering it as productive as possible."£ (Emphasis added.)
 
To the same effect is Latrobe and Whistler v. Winans, 89 Md. 636, 43 A. 829 (1899), wherein it was said at page 655, 43 A. 829:
 
"If the delay in completing the contract be attributable to the purchaser, he will be obliged to pay interest on the purchase money from the time the contract ought to have been carried into effect . . . ."[***6]

   That the general rule should not be applied inflexibly, however, was made clear in Oldenburg v. Regester, 118 Md. 394, 85 A. 411 (1912). The late Judge Urner, after noting that settlement had been delayed by the filing of exceptions to the sale in no way induced by action of the purchaser, and after recognizing that the cases cited supra had declared a general rule that the purchaser is ordinarily liable [*470] for interest upon the unpaid purchase price upon ratification of sale, said at page 398, 85 A. 411:
 
"The cases cited were concerned with conditions altogether different from the present, and the rule invoked is not one of absolute and unvarying application. In a very recent case this Court has manifested its disposition to be governed by equitable considerations in dealing with such questions.  Leviness v. Consol. Gas Co., 114 Md. 573 [80 A. 304]." n2

n2 In Leviness v. Consol. Gas Co., 114 Md. 559, 80 A. 304 (1911), a delay in settlement was occasioned by the necessity for judicial decision upon whether title to the property was good and marketable.  The lower court required payment of interest from the date of its decree. The appellants urged that as appellate review of the cause was essential to make title good and marketable, they should not be subjected to costs below, and that taxes and interest should be adjusted to the date of the decree in this Court.  The requested relief was granted in these words, "In our judgment, it is equitable, under the circumstances of the case that the dispositions thus proposed as to costs, interest and taxes should be adopted, and we will decree accordingly."£ 114 Md. at 573, 80 A. 304.

[***7]

   In Oldenburg, supra, the purchasers had filed exceptions to a sale conducted in March, 1910, because examination of the land records disclosed an unreleased mortgage for $15,000.  Although the mortgage had been paid prior to the sale, the purchasers were not so informed.  When so informed, the exceptions were voluntarily dismissed and the sale ratified in October, 1910.  At settlement shortly thereafter, the trustee demanded payment of interest by the appellants for the period of delay.  Interest for that period was allowed by the auditor with exceptions overruled by the lower court.  On purchasers' appeal the decree requiring payment of interest was reversed.  The Court after observing that the trustee might at any time have obviated the difficulty by causing the release to be recorded, found the record showed "affirmatively and without contradiction that the appellants [purchasers] earnestly endeavored to accomplish that result."£ 118 Md. at 398, 85 A. at 412.

   [*471] In Raith v. Bldg. & Loan Ass'n, 140 Md. 542, 118 A. 67 (1922), this Court gave consideration to and rejected a purchaser's contention that equitable considerations justified relaxation of the rule. [***8] In Raith, a second mortgagee filed exceptions to the first mortgagee's sale.  The exceptions were overruled on October 2, 1920 and the second mortgagee appealed, but without filing an appeal bond.  The order of the trial court ratifying and confirming the sale was affirmed on May 21, 1921.  Raith sought relief from the payment of interest on the unpaid balance during that interval.  [**974] We pointed out, citing then Maryland Code, Art. 5, § 29 (1911 Bagby) n3 that an appeal without bond did not affect the rights of a purchaser at a judicial sale even if the order of ratification is reversed on appeal and that "Raith could have had possession of the properties and have been protected . . . if he had complied with the terms of sale at that time."£ 140 Md. at 546, 118 A. 67. The order requiring Raith to pay interest upon the unpaid balance was affirmed.

n3 Now controlled by Maryland Rule 1017.  See Leisure Campground v. Leisure Estates, 280 Md. 220, 372 A.2d 595 (1977).

   In Merryman v. Bremmer[***9] , 250 Md. 1, 241 A.2d 558 (1968) where the trustees had failed to seek resale at the risk of the purchaser under then applicable Maryland Code, Article 16, § 163 (1957) n4 and the purchaser was at all times able to pay the relatively small amount involved and ready and willing to do so when the amount of that balance was made known to the purchaser by the trustees, we said: "The delay, n5 therefore, must be attributed to the trustee, [*472] Merryman, and not to Bremmer."£ 250 Md. at 10, 241 A.2d 558.

n4 Repealed by ch. 36, § 1 of the Laws of 1962.  Thereafter, the provisions of Maryland Rule BR6 control such procedures.  See footnote 7, infra.  The rule is a restatement of the preexisting statutory law.  See McCann v. McGinnis, 257 Md. 499, 506, 263 A.2d 536, 539 (1970).

n5 Although the delay extended from 1937 to 1960, the evidence showed that it did not result in any detriment to the trust estate.  Merryman v. Bremmer, 250 Md. 1, 10, 241 A.2d 558, 564. In the subject case, however, the delay lessened the amount recoverable from the proceeds of sale by the Claimants by reason of the continuing accrual of interest payable to the mortgagees and to creditors holding superior liens upon such proceeds.

[***10]

   The present issue was initiated on January 25, 1983, when Claimants filed a petition to require the trustee to collect and the purchasers to pay interest on the unpaid balance of the purchase price. Purchasers answered Claimants' petition, claiming relief on equitable grounds.  Trustee did not answer, taking no position on the question.  The trustee did, however, file a petition for resale at the risk of Purchasers, n6 pursuant to Maryland Rule BR6. n7

n6 This petition was not included in the agreed record submitted to this Court but we assume it was filed at the time of Claimants' petition since both matters were considered at the same hearing.

n7 Maryland Rule BR6 in part here pertinent reads as follows:

   "c. Resale.

   In case of default by the purchaser in a sale reported to the court, the court, on application, and after notice to the defaulting purchaser, may order a resale at the risk and expense of such purchaser, or may take such other action as justice may require."

   On March 9, 1983, [***11] the lower court called the case for hearing on trustee's petition for resale and Claimants' petition as to interest.  At the outset of that hearing the Purchasers, Claimants, mortgagees, and trustee agreed that a consent order n8 should be passed requiring resale of the property at the risk of the Purchasers unless stipulated conditions for payments to the mortgagees were met and settlement occurred.  Settlement ultimately occurred at a much later date than was prescribed in the conditions of sale. n9

 n8 The consent order was not included in the agreed record submitted to this Court.

n9 The precise date of settlement is not determinable from the sparse record. 

   The trial court then proceeded to consideration of Claimants' petition. After hearing statements from counsel for [*473] all parties as to their respective legal positions concerning that petition, a witness, Steuart Chaney, one of the Purchasers, was called as the sole witness.

   The mortgage sale itself furnishes no factual dispute.  The dispute [***12]arises from antecedent, concurrent and subsequent events incident thereto that Purchasers contend give rise to equitable considerations justifying relaxation of the general rule and entitling them to equitable relief from any obligation to pay interest upon the unpaid balance of the purchase price [**975]from December 27, 1982 to the date of settlement.

   THE SALE

   Advertising of the mortgage sale advised that the property would be sold on November 8, 1982 to the highest bidder; that a deposit of $50,000 would be required at the time and place of sale, and that the unpaid balance must be paid within 10 days after ratification of the sale by the Court.  The ad was silent as to payment of interest upon the unpaid balance. The Purchasers were the high bidder at sale at $1,150,000 and the required deposit of $50,000 was made. The sale was ratified by the Court on December 17, 1982.  Settlement did not occur within 10 days from that date, being delayed for a number of months thereafter.

   THE ANTECEDENT, CONCURRENT AND SUBSEQUENT EVENTS

   The testimony of the sole witness, Steuart Chaney, is summarized in narrative form as follows: The Purchasers at the mortgage sale were Steuart[***13] Chaney, Richard H. Chaney and George M. King.  Prior to the sale the witness had ongoing discussions with Herring Bay Partnership concerning the property in the early summer of 1982 after seeing the foreclosure notice.  On the Friday before the sale, the witness and King (another one of the three purchasers) met with Arnie Gay and Bob DeStefano (two of the limited partners) who in their own words were the primary [*474] owners and could influence the purchase price. They said they would take 1.2 million dollars and although the Purchasers were not ready to pay that much, the parties were trying to work out a scheme whereby a contract could be agreed upon before the public sale; they would attend the sale to bid whatever it took to buy it but with the understanding that if the sum bid exceeded 1.2 million dollars, they would forego the excess amount so that the property would be acquired by Purchasers at not more than 1.2 million dollars. No such contract was agreed upon, however.  Gay and DeStefano had just come to the Friday meeting from Maryland National Bank (Bank) where they had been advised that the Bank might provide financing.
 
   After discussion, King, DeStefano, Gay and[***14] the witness proceeded to a meeting with Bank officials to confirm that the Bank was going to offer a financial proposal which had been prepared by Arnie Gay and Bob DeStefano which was "Yeah, for two years we'll give you thirteen percent money for two years at interest only."£ And that was the key of the Purchasers' fall back position and a quick settlement situation.  At the time of sale, it was still Purchasers' understanding that the Bank would finance this transaction, a circumstance relied on when making the bid.

   There were essentially two bidders at the sale that quickly produced a bid of $800,000.  One Chuck Collett was bidding against the Purchasers. He had a thirty thousand dollar check -- provided by Robert DeStefano -- although a down payment of $50,000 was required at the time and place of sale.  Collett stood there and ran the bid up to 1.2 million dollars at which point the trustee stopped the auction for a discussion with Collett and DeStefano and then came back, saying they were unqualified bidders and asked, "Would you take it at the 1.15?"£ The Purchasers agreed that they would.  Purchasers had bid 1.15 and then Collett bid the 1.2.  After the sale Purchasers[***15] went back to the Bank for the needed financing plan which they had proposed but did not get it.  All reasonable efforts were made to go to settlement on the property after the Bank declined [*475] to finance it.  Purchasers took possession of the property the day after the sale, n10 did work there but [**976] collected only $1,143.00 in dockage fees, whereas the Partnership had collected $177,000 in such fees prior to the sale.  The dockage fees during the Partnership management had been billed on a fiscal year basis from March 1 to March 1.  Claimants had removed a cash box from the premises prior to the sale.

n10 On cross-examination the witness stated that there was a written agreement concerning Purchasers' entry upon the property after the sale the gist of which "was that we could go and take the responsibility . . . for the people who had their boats there."£ The witness assumed that the agreement was with Herring Bay Partnership because Rob Donald and Don Zinn weren't individually involved in it.  Although the trial judge requested that the agreement be subsequently filed in the proceedings, the record does not disclose it.  Thus, we have no further knowledge of its contents or its signatories.

[***16]

   No exception to the sale was taken by the Purchasers on the basis that the sale had been the subject of bidding irregularity although it was known to the Purchasers that they could have excepted at any time prior to ratification.

   ANALYSIS OF THE SUGGESTED EQUITABLE CONSIDERATIONS

   It will have been observed that the testimony of the witness Chaney assigned five reasons that he felt demonstrated Purchasers' entitlement to equitable relief.  We shall now discuss them.

   1. The meeting or meetings of Chaney and King (two of the Purchasers) with Gay and DeStefano (two of the limited partners).  As to this contention, analysis of the evidence shows no more of substance than that the Partnership would have agreed to accept $1,200,000 for the property if a contract of sale could be executed prior to sale.

   2. That Gay and DeStefano would protect an agreement to accept $1,200,000 by attendance at the sale and, if necessary, to bid the property to a higher figure and then assume an obligation to forego the excess over $1.2 million. [*476]As to this, the evidence shows that the property was sold for less than $1.2 million so that no such obligation arose.

   3. That Gay and DeStefano[***17] informed Chaney and King that Maryland National Bank had shown an interest in financing the property by providing "13% for two years at interest only."£ The evidence shows that the Purchasers Chaney and King thereafter entered into direct discussions with bank officials.  There is no suggestion that either Gay or DeStefano was to assume any obligation to the Bank under any financial arrangement to be agreed upon by the Purchasers with the Bank.  The financing involved only the Purchasers and the Bank.  In short, if a binding contract between Purchasers and the Bank arose from the discussions, then the Purchasers' quarrel is with the Bank -- not the Claimants. If the discussions did not produce a binding agreement between Purchasers and the Bank, manifestly the delay in settlement must be attributed to the Purchasers' inability to obtain such a binding commitment.  In either case, there is no showing that Purchasers' inability to secure financing within the time limitation prescribed by the terms of the judicial sale had been caused by any action or failure to act by the Claimants.

   4. That there were essentially only two bidders at the sale -- the Purchasers and one Chuck Collett[***18] who made the aborted bid of $1,200,000 with the inadequate $30,000 check ($20,000 less than the required down payment at the sale).  There is a complete absence of any evidence, however, that Collett's bid was not in his own interest; or that he was a "stalking horse" for the Claimants; or that the Claimants were in any way connected with Collett's inability to be a qualified bidder for want of sufficient funds for the required sales deposit.  The testimony did show that the inadequate check was supplied by DeStefano.  No showing was made, however, that the Claimants were parties to a Collett-DeStefano undertaking, if there was one.  Indeed, the record shows affirmatively that the interests of DeStefano and the Claimants were adverse. DeStefano had filed [*477] a petition in these proceedings seeking disallowance of their claim.

   5. That Herring Bay Partnership had: (1) collected $177,000 in rentals from boat [**977] slips prior to entry by the Purchasers upon the property and that they had been able to collect only $1,143.00 and (2) that the Partnership had removed the cash box from the premises prior to the sale.  The evidence shows that slip rental charges during[***19] operation of the marina by the Partnership had been billed annually on a March 1 to March 1 basis.  Under such conditions it is only to be expected that a very large proportion of slip rentals for that fiscal year would have been collected by the management prior to November 8, 1982 -- the date of sale. n11£ As to the removal of the cash box, the Partnership acquired the land and improvements at the sale -- not the business assets of the Partnership.

 n11 The Purchasers were in possession of the premises from the day following the sale until the date of settlement and thus had "a direct and strong interest in protecting the property from injury, and rendering it as productive as possible."£ Wagner v. Cohen, 6 Gill 97, 103 (1847).

   Our examination of the cited cases decided by our predecessors persuades us that a purchaser at a judicial sale will be excused from requirement to pay interest upon the unpaid balance for the period between the time fixed for settlement and the date of actual settlement only when[***20] the delay stems from neglect on the part of the trustee (Oldenburg v. Regester; Merryman v. Bremmer, both supra); was caused by necessary appellate review of lower court determinations (Leviness v. Consol. Gas Co., 114 Md. 573, 80 A. 304) or was caused by the conduct of other persons beyond the power of the purchaser to control or ameliorate (Raith v. Bldg. & Loan Ass'n, supra).

   In the subject case the advertisement of sale fixed a specific time limit within which the unpaid balance due must be paid to the trustee.  The sale was in no way conditioned upon obtention of financing by the Purchasers. In ordinary [*478] circumstances and in the absence of special provisions in the sale offer, a delay caused by difficulty in obtaining financing would not discharge a purchaser from the obligation to pay interest from the date fixed for settlement by the terms of sale until a delayed settlement date.  In this case the sole factor causing the delay in settlement was the inability of the Purchasers to obtain financing for the payment of the balance of the purchase price within the time fixed for settlement under the terms of sale stated in the advertisement.

   It plainly[***21] is the duty of a purchaser at a judicial sale to assure the court n12 that he is ready, willing and able to comply with the terms fixed for its completion.  We find in this record no equitable considerations justifying relief to the Purchasers from the obligation to pay interest on the unpaid balance for the period of delay in settlement. The order of the trial court relieving Purchasers from that obligation was clearly erroneous.

n12 In Merryman v. Bremmer, 250 Md. 1, 8, 214 A.2d 558 (1968), this Court pointed out that in a judicial sale, "[t]he court itself is the vendor, the trustee being merely the agent of the court to carry into effect the order of court directing the sale, and upon final ratification of the sale by the court the contract of purchase becomes complete."

   Claimants have suggested a somewhat complex plan for the determination of the extent of Purchasers' liability.  We shall make no comment upon it except to say we reject it for the reason that their liability is determined by a simple [***22]and concise calculation, namely, the trial court should enter judgment against the Purchasers for the sum produced by interest at the rate of 10% per annum upon the unpaid balance for the period from December 27, 1982 to the actual date of settlement, with legal interest on the judgment n13 from that date until paid.  The trustee will make distribution of any monies derived from that judgment [*479] to the distributees entitled thereto as their interests and priorities may require.

n13 See Maryland Code § 11-107 of the Courts and Judicial Proceedings Article.

   [**978] JUDGMENT OF THE COURT OF SPECIAL APPEALS VACATED AND CASE REMANDED TO THAT COURT FOR THE ENTRY OF AN ORDER VACATING THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AND REMANDING THE CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  COSTS TO BE PAID BY THE APPELLEES. 

Catherine L. MITCHELL v. Stanley T. MITCHELL 
No. 126, September Term, 1984
 
Court of Appeals of Maryland
 
302 Md. 479; 488 A.2d 978; 1985 Md. LEXIS 549

 March  7, 1985

   PRIOR HISTORY: [**1]  
Appeal from the Circuit Court for  Anne Arundel  County James L. Wray, JUDGE.

COUNSEL: Joseph B. Spillman, Assistant Attorney General, Baltimore, Maryland (Stephen H. Sachs, Attorney General, Baltimore, Maryland, Warren B. Duckett, Jr., State's Attorney, Anne Arundel County, and Megan Johnson, Assistant State's Attorney, Annapolis, Maryland, on the brief), for appellant.

   Bruce C. Bereano, Annapolis, Maryland (Martha F. Rasin and Bereano & Resnick, Annapolis, Maryland, on the brief), for appellee on motion to dismiss.

JUDGES: Murphy, C.J., Smith, Eldridge, Cole, Rodowsky and McAuliffe, JJ., and Charles E. Orth, Jr., Associate Judge of the Court of Appeals (retired), Specially Assigned.

OPINION: [*480] ORDER

   The appellee having filed a motion to dismiss appeal and a motion for separate oral argument on the motion to dismiss, and the appellant having filed an opposition to the motion to dismiss, and

   The Court having granted the motion for separate oral argument on the motion to dismiss, and

   The Court having considered the motion to dismiss and opposition thereto and having heard oral argument thereon, it is this 7th day of March, 1985.

   ORDERED, by the Court of Appeals of Maryland, [**2] that the motion to dismiss the appeal be, and it is hereby, granted and the appeal is dismissed as the appeal was not taken from an appealable final judgment.  Maryland Code (1984 Repl.Vol.), Courts and Judicial Proceedings Article § 12-301; Maryland Rule 835 a. 1. 

Rodney Lorenzo SMITH v. STATE of Maryland 
No. 82, September Term, 1983
 
Court of Appeals of Maryland
 
302 Md. 175; 486 A.2d 196; 1985 Md. LEXIS 530

 January  10, 1985

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County - Judge Raymond G. Thieme, Jr.) JUDGE.

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED, AND CASE REMANDED TO THE COURT OF SPECIAL APPEALS WITH DIRECTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AND REMAND THE CASE TO THAT COURT FOR A NEW TRIAL.  COSTS TO BE PAID BY ANNE ARUNDEL COUNTY.

CORE TERMS:  alibi, alibi testimony, uncorroborated testimony, jury instruction, corroboration, corroborated, requested instruction, armed robbery, instruct, totally, robbery, prosecuting witness, burden of proof, applicable law, criminal case, inconsistency, beyond a reasonable doubt, sufficient evidence, restitution, convicted, sentence, handgun, orally, locked, weigh, guilt, clerk, desk

COUNSEL: Julia A. Doyle, Assistant Public Defender, Baltimore, Maryland (Alan H. Murrell, Public Defender, Baltimore, Maryland, on the brief), for appellant.

   Richard B. Rosenblatt, Assistant Attorney General, Baltimore, Maryland (Stephen H. Sachs, Attorney General, Baltimore, Maryland, on the brief), for appellee.

JUDGES: Murphy, C.J., Eldridge, Cole, Davidson, * Rodowsky and Couch, JJ., and Charles E. Orth, Jr., Associate Judge of the Court of Appeals (retired) specially assigned.

* Davidson, J., participated in the hearing of the case and in the conference in regard to its decision, but died prior to the adoption of the opinion by the Court.

OPINIONBY: ELDRIDGE

OPINION: [*177] [**196] The issue in this case is whether the trial court erred in denying the petitioner's request to[***2] have the jury instructed on alibi after the petitioner testified at trial that he "was in Texas at the time the crimes were committed" in Maryland.  We hold that the trial court's refusal to instruct the jury on alibi constituted error, and we therefore reverse.

   The petitioner, Rodney Lorenzo Smith, was charged in an eight count indictment with armed robbery and related offenses arising out of the August 30, 1981, robbery of a desk clerk at a Holiday Inn.  On May 15, 1982, Smith was tried before a jury in the Circuit Court for Anne Arundel County.  At the trial, the desk clerk positively identified Smith as one of the robbers.  On the other hand, Smith specifically testified that he was not at the Holiday Inn on [**197]August 30, 1981, that he was not "even in the State at that time," and that he was in Texas when the robbery occurred.  Smith's aunt, Agnes Pearman, testified that Smith had been in Texas for over six months in 1981, and that she had seen him in Maryland after his return on September 4, 1981.  She was not, however, able to testify as to Smith's whereabouts on August 30, 1981. Smith's attorney submitted to the court, in writing, a proposed jury instruction on alibi. [***3] The requested instruction stated, in part, as follows:

   "The defendant has offered testimony to establish an alibi. An alibi is a defense which is based on evidence that the accused was not present at the time when, or at the place when he is alleged to have committed the offense charged.

   "The claim of alibi is legitimate, legal and proper.  When such a claim is thoroughly established, it precludes the possibility of guilt.

   "The presence of the defendant at the time and place of the criminal act is not to be presumed or assumed.  In every case where the presence of the defendant at the [*178] commission of the crime is essential to his conviction, the state must establish his presence beyond a reasonable doubt.

   "You are not to weigh merely the evidence relating to the alibi and determine from that alone whether you have a reasonable doubt of guilt. You should consider such evidence along with all of the other evidence.  In this connection you should consider whether the alibi testimony covered the entire period of time during which the crime may have been committed."
 
The trial judge refused to give any jury instruction on alibi, stating that "there's no alibi[***4] evidence. . . .  No character reference.  No accomplices' testimony."

   Smith was convicted of armed robbery and the use of a handgun in the commission of a crime of violence.  The court imposed a fifteen year sentence for the robbery offense, a concurrent five year sentence for the handgun offense, and ordered restitution. The Court of Special Appeals affirmed in an unreported opinion.  The intermediate appellate court took the position that, in order for a defendant to be entitled to an alibi instruction, his alibi testimony must be corroborated. The Court of Special Appeals went on to state that Smith's testimony was not
"sufficiently corroborated. Mrs. Pearman was not only unable to relate when the appellant had been in Texas, but testified that she was unsure as to when he returned to Maryland.  Needless to say, such testimony would not reasonably exclude the possibility of the appellant's presence at the time and place of the alleged offense.  We hold, therefore, that the evidence by the appellant was insufficient to require the trial court to give an instruction as to the issue of alibi."

   The defendant Smith filed a petition for a writ of certiorari presenting two [***5]questions, the first relating to the alibi issue and the second challenging the order for restitution. In light of the Court of Special Appeals' holding that a defendant's alibi testimony must be corroborated for him to [*179] be entitled to an alibi instruction, we granted the petition limited to the first question, which was set forth in our certiorari order as follows:

   "Did the Court of Special Appeals err in holding that the Petitioner's testimony that he was in another state when the armed robbery was committed was not sufficient to generate the alibi issue in the absence of full corroboration by other evidence and that the trial court was not required to give the requested instruction on the alibi issue?"

   The State, in its brief and oral argument before this Court, disagreed with the reasoning of the Court of Special Appeals and took the position that a defendant's alibi testimony need not be corroborated in order for a defendant to be entitled to an alibi instruction.  Nevertheless, the State argued that an accused, to be entitled to an [**198] alibi instruction, must present evidence clearly generating the issue.  In the present case, according to the State, [***6] Smith's testimony as a whole was so inconsistent that it was "totally without value."£ Consequently, according to the State, the defendant was not entitled to an alibi instruction in this case.

   We shall first deal with the corroboration issue, and then we shall address the State's argument.

   (1)

   We note at the outset that "it is incumbent upon the court, . . . when requested in a criminal case, to give an . . . instruction on every essential question or point of law supported by evidence."£ Bruce v. State, 218 Md. 87, 97, 145 A.2d 428, 433 (1958). See, e.g., Blackwell v. State, 278 Md. 466, 477, 365 A.2d 545, cert. denied, 431 U.S. 918, 97 S.Ct. 2183, 53 L.Ed.2d 229 (1976); Dillon v. State, 277 Md. 571, 584-585, 357 A.2d 360 (1976); England & Edwards v. State, 274 Md. 264, 275-276, 334 A.2d 98 (1975); Hardison v. State, 226 Md. 53, 60-61, 172 A.2d 407 (1961). This principle was embodied in former Maryland Rule 757(b) which stated that "[t]he court may, and at the request of any party shall, give those . . . instructions to the jury as [*180] correctly state the applicable law." n1£ This Court has held that the word "shall," as employed in Rule 757(b), [***7] renders the rule mandatory.  See, e.g., Lansdowne v. State, 287 Md. 232, 238-239, 412 A.2d 88 (1980), and cases there cited.

n1 Effective July 1, 1984, former Rule 757(b) was replaced by new Rule 4-325(c), which states as follows:
 
"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 requested instruction if the matter is fairly covered by instructions actually given."

   The Court of Special Appeals, as well as a majority of cases throughout the country, have held that when the evidence in a criminal case generates the issue of alibi, and when the defendant requests an instruction specifically addressed to the matter of alibi, the defendant is entitled to a specific alibi instruction, and that the trial court's general instructions concerning the prosecution's burden[***8] of proof, etc., are not deemed to "fairly cover" the matter of alibi. Pulley v. State, 38 Md.App. 682, 688-691, 382 A.2d 621 (1978), and cases there cited.  Cf. State v. Grady, 276 Md. 178, 345 A.2d 436 (1975) (holding that a jury instruction which placed an impermissible burden of proof upon the defendant to establish his alibi constituted reversible error). We agree with the holding of the Court of Special Appeals in the Pulley case.

   Of the cases which ordinarily require the trial court to instruct the jury concerning alibi when the alibi issue is presented by the evidence and the instruction is requested by the defendant, the overwhelming majority hold that the defendant's uncorroborated testimony, that he was at some other place at the time of the crime, is sufficient to generate the issue.  See, e.g., Hudson v. State, 381 So.2d 344 (Fla.App.1980); Pippins v. State, 224 Ga. 462, 162 S.E.2d 338, 340 (1968); People v. Jones, 47 Ill.2d 135, 265 N.E.2d 125 (1970); People v. McGinnis, 402 Mich. 343, 262 N.W.2d 669 (1977); State v. Slay, 406 S.W.2d 575, 579 (Mo.1966); Commonwealth [*181] v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980); State [***9]  v. Robbins, 275 S.C. 373, 271 S.E.2d 319 (1980). n2£ In Hudson, supra, 381 So.2d at 346, in holding that an accused's uncorroborated testimony, standing by itself, is sufficient to require an alibi instruction, the court stated:
"A defendant's testimony may not be totally disregarded merely because he is the defendant.  His testimony must be weighed just as that of any other witness."
 
[**199] In People v. McGinnis, supra, the Supreme Court of Michigan held that a defendant's uncorroborated testimony placing him "elsewhere than at the scene of the crime" is sufficient to require a defendant-requested jury instruction on alibi, stating that a defendant's alibi testimony "is alibi testimony the same as if another witness had given the testimony."£ 262 N.W.2d at 671. The Michigan court noted that
 
"a defendant may offer uncorroborated testimony and thereupon become entitled to an instruction on such defenses as self-defense, accident, mistake, duress, intoxication, consent, non-culpable intent, provocation mitigating murder to manslaughter, or law enforcement or other public duty.  But undeniably such defenses can be maintained solely on the defendant's[***10] testimony, and upon proffering such uncorroborated testimony the defendant would be entitled to an appropriate instruction."£ Ibid.

 n2 The only case, of which we are aware, which seems to be contrary is Beasley v. State, 539 S.W.2d 820 (Tenn.Cr.App.1976).

   We can discern no principled reason for treating the alibi issue differently than all other issues in criminal cases by requiring corroboration of an accused's alibi testimony in order that the jury be instructed on alibi. n3

n3 For criminal cases holding that generally the testimony of a single witness is sufficient to generate an issue, see, e.g., Mobley and King v. State, 270 Md. 76, 89, 310 A.2d 803 (1973), cert. denied, 416 U.S. 975, 94 S.Ct. 2003, 40 L.Ed.2d 564 (1974); Caviness v. State, 244 Md. 575, 579, 224 A.2d 417 (1966); Hammond v. State, 241 Md. 733, 736, 217 A.2d 569 (1966); Wesbecker v. State, 240 Md. 41, 46, 212 A.2d 737 (1965).

[***11]

   [*182] (2)

   As previously discussed, the State conceded in this Court that corroboration of an accused's testimony should not be a prerequisite for an alibi instruction. The State argued, however, that the trial judge's failure to instruct the jury on alibi was excusable because the appellant's testimony "was so inconsistent as to be totally without evidentiary value."£ The State's reliance was upon Kucharczyk v. State, 235 Md. 334, 201 A.2d 683 (1964).

   In Kucharczyk, the defendant was convicted of assault and battery, based on the alleged attempted buggery of a sixteen year old boy.  The prosecuting witness's testimony furnished the only evidence against the defendant.  This witness was mentally deficient and, according to a psychologist called by the State, had a full scale I.Q. of only 56.  The witness, twice on direct examination and once on cross-examination, "testified that nothing happened. Thus, there were unqualified statements by the prosecuting witness that the crime for which the appellant was convicted never in fact occurred."£ 235 Md. at 337-338, 201 A.2d 683. On this ground, the Court reversed the conviction, stating that
 
"the testimony of the[***12] prosecuting witness, who was the only person that testified as to any overt act on the part of the appellant, was so contradictory that it lacked probative force and was thus insufficient to support a finding beyond a reasonable doubt of the facts required to be proven."£ Id. at 337, 201 A.2d 683.
 
The State in the case at bar asserts that Smith's testimony falls within the doctrine set forth in Kucharczyk.  This reliance is misplaced.

   The doctrine set forth in Kucharczyk is extremely limited in scope.  See Bailey v. State, 16 Md.App. 83, 93-97, 294 A.2d 123 (1972), and the cases there cited.  See also Wilkins v. State, 239 Md. 692, 693, 211 A.2d 308 (1964). The State points to inconsistencies and confusion in Smith's testimony, particularly the following exchange:

   [*183] "Q Do you remember what month that was in 1981 that you were in fact in the Holiday Inn?

   "A Do I know what date it was?

   "Q What -- yes, what month it was.

   "A I don't know.  Could have been around in, uh, no I don't know.  I couldn't say 'cause when I came back from Texas I was a little, you know, fuzzy in the head 'cause I was out there and they locked me up.  I got locked up[***13] [**200]for some charges that I was supposed to had and this and that and that and the other which I couldn't have committed because I was out there and not here.

   "Q You were here and not there.

   "A Or vice versa.

   "Q Right.  Okay.  You're saying that you were accused of committing crimes in Texas which you couldn't have committed because you were in Maryland at that time.

   "A I was in Texas at the time the crimes were committed here."
 
The type of confusion and inconsistency contained in this and other testimony given by Smith at trial neither rises to, nor even approaches, the level of unreliability which would place it within the narrow ambit of the principle set forth by the Court in Kucharczyk.  We agree with the rule stated in Hudson v. State, supra, 381 So.2d at 346, that
 
"It is not the function of the trial judge to weigh the evidence and select some cases in which to give the alibi instruction.  The instruction should be given in every case where there is sufficient evidence to take the issue to the jury."

   The testimony of the defendant Smith, flatly stating that he was in Texas when the crime was committed, was sufficient evidence to take the[***14] issue to the jury.

   JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED, AND CASE REMANDED TO THE COURT OF SPECIAL APPEALS WITH DIRECTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR [*184] ANNE ARUNDEL COUNTY AND REMAND THE CASE TO THAT COURT FOR A NEW TRIAL.  COSTS TO BE PAID BY ANNE ARUNDEL COUNTY. 

John Lee LEONARD a/k/a Samad Abdul Taawwab v. STATE ofMaryland 
No. 55, September Term, 1983
 
Court of Appeals of Maryland
 
302 Md. 111; 486 A.2d 163; 1985 Md. LEXIS 523

 January  8, 1985

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County - Judge Raymond G. Thieme, Jr. JUDGE.

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED AND CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REMAND TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR A NEW TRIAL.  ANNE ARUNDEL COUNTY TO PAY THE COSTS.

CORE TERMS:  self-representation, right to counsel, desired, courtroom, proceed pro se, own defense, pro se, assistance of counsel, waiver of counsel, new counsel, inclination, reversible error, intelligently, legal advisor, alright, appointed counsel, right to proceed, sixth amendment, disruptive, waive, constitutional rights, reasonable effort, public defender, continuance, appointed, sentence, reasonable presumption, decision to represent, standard of proof, standby counsel

COUNSEL: Arthur A. DeLano, Jr., Assistant Public Defender, Baltimore, Maryland (Alan H. Murrell, Public Defender, Baltimore, Maryland, on the brief), for appellant.

   Ann E. Singleton, Assistant Attorney General, Baltimore, Maryland (Stephen H. Sachs, Attorney General, Baltimore, Maryland, on the brief), for appellee.

JUDGES: Murphy, C.J., and Smith, Eldridge, Cole, Davidson, * Rodowsky and Couch, JJ.

* Davidson, J., participated in the hearing of the case and in the conference in regard to its decision, but died prior to the adoption of the opinion of the Court.

OPINIONBY: COLE

OPINION: [*113] [**164] The issue in this case is whether the trial court was required to conduct a waiver of counsel inquiry before allowing the defendant to proceed pro se.

   The facts are as follows.  John Lee Leonard was indicted for possession with intent to distribute[***2] a controlled dangerous substance, simple possession, and conspiracy.  Keith Krissoff entered his appearance as Leonard's assigned public defender.

   [*114] On May 21, 1982, a hearing was held in the Circuit Court for Anne Arundel County on Leonard's motion to suppress evidence.  Leonard was not present.  Sergeant Russell Hall of the Annapolis Police Department testified that he received information from a confidential informant that Leonard was selling heroin from a blue Grand Prix with New York registration in the vicinity of Clay and Washington Streets in Annapolis.  Sergeant Hall found Leonard who, after some preliminary negotiations, sold Sergeant Hall "a pharmacy fold" of purported cocaine for fifty dollars.  When the officer realized that the pharmacy fold was empty, he signaled his back-up unit to arrest Leonard.  The automobile was taken to the Annapolis Police Station where a search conducted pursuant to a search warrant revealed thirteen glassine envelopes of heroin. The Circuit Court denied Leonard's motion to suppress this evidence.

   When the court called Leonard's case for trial on May 25, 1982, he requested a postponement to locate a witness known to him only by[***3] the name of "Fish."£ The trial court denied his request in the following colloquy with Leonard:
 
COURT: That's clear.  You've had reasonable opportunity [to locate the witness]. You didn't even disclose this witness to your attorney.  The court denies the request for a continuance.
MR. LEONARD: What about . . . can I get . . . can I get appointed another counsel?
COURT: No.
MR. LEONARD: Why not?
COURT: Because I said so.
MR. LEONARD: Just because you say so, I don't think he's [Krissoff] fairly representing me.  Why can't I get appointed other counsel?
COURT: He has done an . . . he's done an excellent job representing you.
MR. LEONARD: Well, he's not representing me, then.
COURT: Well, you've made your motion and I've refused it.

   [*115] Immediately after this exchange, Leonard unsuccessfully attempted to leave the courtroom. After sheriffs restrained him, Leonard explained that, "I don't want an unfair trial.  I don't want [Krissoff] to represent me.  You can throw me in the bullpen.  That's alright with me."£ Leonard [**165] then tried to leave the courtroom, but was again physically restrained by sheriffs. The court ordered the sheriffs to remove[***4] Leonard from the courtroom, and indicated that the trial would continue with Leonard outside the courtroom but that Krissoff could consult with Leonard whenever Krissoff liked.

   Upon completing the voir dire of prospective jurors, the trial court allowed Krissoff to consult with Leonard concerning the remaining peremptory strikes and to ascertain whether Leonard wanted to return to the courtroom. After Krissoff consulted with Leonard, the following exchange transpired:
 
MR. KRISSOFF: Your Honor, for the record, Keith Krissoff . . . subsequent to the Voir Dire of the jury I went down and conferred with Mr. Leonard.  He indicated to me that it was his desire to represent himself in this matter.  I explained to him what benefit I could be to him in the trial and indicated to him that I thought I could be of substantial benefit to him, that I thought he had a reasonable chance in this case.  Despite that, he indicates that he wants to represent himself and I believe under the case law, if the court finds that that's what. . .
 
COURT: I have no problem.
 
MR. KRISSOFF: . . . he really wants to do. . .
 
COURT: I'll permit it provided he conducts himself in an orderly manner [***5]representing himself, but I won't discharge you.  You'll remain as counsel for any consultation or any use that he may choose to use.
 
MR. KRISSOFF: I have a problem with that, Your Honor, in that what am I doing at the trial table if I'm not representing him?
 
[*116] COURT: You're there because of my order . . . just as simple as that. Okay.  Let's bring him up and see if he'll conduct himself in an orderly manner. Back to the trial table.

   When Leonard returned to the courtroom, he advised the court that he wanted to conduct his own defense:
 
COURT: Alright. You can approach the bench.  (Bench conference)
 
COURT: Mr. Leonard, at the bench, sir.  (Defendant approaches the bench.)
 
COURT: I understand you want to conduct your own defense.
 
MR. LEONARD: That's the only choice I got.
 
COURT: I take it your answer is yes?
 
MR. LEONARD: It's got to be yes.  It's the only choice I have.
 
COURT: Alright.  I'm going to allow Mr. Krissoff to stay . . .
 
MR. LEONARD: I don't want you to allow him to do nothing.  I have a right to do it (all in one man).  (Mr. Leonard's diction is not proper.)
 
COURT: Well, fine.
 
MR. [***6] LEONARD: (?)
 
COURT: You have a right to . . . Mr. Leonard, do you want to let me finish?
 
MR. LEONARD: You can finish, man.  I'm ready to go on with it.  I don't want to hear no more you got to say about it.
 
COURT: Well, you're going to hear what I have to say.  Mr. Krissoff is going to sit at the table.  You can consult with him or not as. . .
  
MR. LEONARD: I'm not consulting with him. . .
 
COURT: That's up to you.
 
MR. LEONARD: . . . I'm letting you know now.
 
COURT: That's up to you.
 
[*117] MR. LEONARD: So don't even put it on the record about he's a legal advisor for me, because he's not.
 
COURT: He's going to . . .
 
MR. LEONARD: He's not no legal advisor for me.
 
COURT: Are you finished?
 
MR. LEONARD: Right.
 
COURT: He's going to sit at the table for you to consult with.  If you choose to avail yourself of him, that's your privilege.
 
[**166] MR. LEONARD: I don't need him.  I don't want him there.
 
COURT: That's your . . .
 
MR. LEONARD: Don't keep telling me that.
 
COURT: I intend to keep telling you until I get it on the record exactly what I want to do.
 
MR. LEONARD: I don't care what[***7] you want to do.
 
COURT: Mr. Leonard . . .
 
MR. LEONARD: I tell you, I don't care what you want to do.
 
COURT: . . . you have a charge against you which is serious enough.
 
MR. LEONARD: I'm not guilty of the charge and you're trying to force me to try it because the witness ain't here to testify . . . and (?) . . . you're telling lies about me.
 
COURT: Finished?  Do you understand how we're proceeding?
 
MR. LEONARD: Sure.  [Emphasis supplied]

   After the jury was selected and sworn, the trial court stated:
 
The defendant has chosen to represent himself . . . which is his privilege.  I have ordered [Krissoff] to stay at the table for Mr. Leonard to consult or not to consult as he sees fit with his attorney of record.  That's up to him.  But he has indicated that he wishes to conduct his own defense and the court obviously is going to permit him to do that.

   [*118] The trial then proceeded, with Leonard acting as his own counsel. Leonard made opening and closing statements to the jury, interposed objections, cross-examined the prosecution's witnesses, and called two witnesses in his own defense. The trial court advised Leonard of his right[***8] to remain silent and made a motion for a directed verdict on his behalf.

   At the conclusion of the case, the court asked Krissoff if he wished any particular jury instructions.  Leonard interposed: "I'd like to state again that Mr. Krissoff is not representing me and he's not no legal advisor for me."£ Finally, Krissoff answered the question, summarizing his participation in the trial:
 
MR. KRISSOFF: Your Honor, I'd like it put on the record that Mr. Leonard has indicated that he doesn't want me to represent him.  I know the court has ordered me to be here.  I've been here, available for consultation, but out of respect for Mr. Leonard and his desire to proceed on his own, he has indicated he wants me to make no objections, to make no statements to the court, to make no statements to the jury . . . I have honored his request and the court will note that throughout the trial I made no objections, even though I would have, obviously, had I been conducted the trial . . . because that is Mr. Leonard's wish with regard to my participation in the case.  I am going to honor that wish.  I think the court should, obviously, instruct as it sees fit.

   The jury convicted Leonard of possession[***9] with intent to distribute a controlled dangerous substance and conspiracy, and the court sentenced him to ten years' imprisonment to run consecutive to any sentence Leonard was then serving.  The Court of Special Appeals affirmed his conviction and sentence in an unreported per curiam opinion filed March 23, 1983, reasoning that Leonard's "tactics did not indicate a waiver of his right to counsel. He clearly wanted new counsel. Under the circumstances he was not entitled to new counsel."£ We granted certiorari to determine the issue presented.

   [*119] Two independent constitutional rights are involved in this case: the right to be represented by counsel and the right to defend pro se.£ The rights are mutually exclusive and the defendant cannot assert both simultaneously.  The United States Supreme Court and other courts throughout the nation have thus sought to protect the right to counsel unless the defendant properly asserts his right to represent himself.  The assertion of this right is conditioned [**167] upon a valid waiver of the right to assistance of counsel.

   In Powell v. Alabama, 287 U.S. 45, 71, 53 S.Ct. 55, 65, 77 L.Ed. 158, 171-72 (1932), the Supreme[***10] Court held that the right to assistance of counsel was guaranteed by the sixth and fourteenth amendments n1 and concluded that due process requires that, at least in capital cases, counsel be appointed for a criminal defendant.  The Supreme Court subsequently extended the right to assistance of counsel to all criminal defendants in federal courts and enunciated the standard of proof of waiver of the right to counsel. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). The Johnson Court stated:
 
It has been pointed out that "courts indulge every reasonable presumption against waiver" of fundamental constitutional rights and that we "do not presume acquiescence in the loss of fundamental rights."£ A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.  The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.
 
Id., 304 U.S. at 464, 58 S.Ct. at 1023, 82 L.Ed. at 1466 (footnotes omitted).

n1 The sixth amendment provides that the accused in a criminal prosecution "shall enjoy the right . . . to have the Assistance of Counsel for his defence."£ The right to counsel provisions of Article 21 of the Maryland Declaration of Rights are in pari materia with the sixth amendment. Sites v. State, 300 Md. 702, 712 n. 3, 481 A.2d 192, 197 n. 3 (1984).

[***11]

   [*120] A decade after its decision in Johnson the Court elaborated on the waiver requirement in a case involving a defendant who had been indicted for conspiracy to violate the Espionage Act of 1917.  Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948) (plurality opinion).  In that case, Von Moltke was arrested by federal agents and was detained for over a month without the benefit of counsel.  She was eventually taken to federal district court where, after signing a document stating that she waived the "'right to be represented by counsel at the trial of this case,'" she pleaded guilty.  No counsel was present during this proceeding.  The plurality quoted Johnson v. Zerbst and its standard of proof of waiver of the right to counsel. The Von Moltke court concluded:
 
To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand.  The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does not automatically end the judge's[***12] responsibility.  To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter.  A judge can make certain that an accused's professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.
 
Id., 332 U.S. at 723-24, 68 S.Ct. at 323, 92 L.Ed. at 321 (footnote omitted); see also Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268, 275 (1942).

   In 1963, the Court extended the right to counsel to all indigent defendants in state criminal proceedings.  Gideon [*121] v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Not until 1975, however, did the Court determine that a defendant in a state criminal trial has an independent constitutional right of self-representation under the sixth and fourteenth amendments.  Faretta v. California, 422[***13] U.S. 806, 807, [**168] 95 S.Ct. 2525, 2527, 45 L.Ed.2d 562, 566 (1975); see McKaskle v. Wiggins,    U.S. ,    , 104 S.Ct. 944, 950, 79 L.Ed.2d 122, 132 (1984) ("The right to appear pro se exists to affirm the dignity and autonomy of the accused and to allow the presentation of what may, at least occasionally, be the accused's best possible defense."); State v. Renshaw, 276 Md. 259, 267, 347 A.2d 219, 225 (1975); see also State v. Berry, 287 Md. 491, 413 A.2d 557 (1980); State v. Bryan, 284 Md. 152, 395 A.2d 475 (1978); Thompson v. State, 284 Md. 113, 394 A.2d 1190 (1978). The Faretta Court cautioned, however, that a defendant may proceed pro se only when he voluntarily and intelligently elects to do so.  In this regard, the Court emphasized that the accused "should be made aware of the dangers and disadvantages of self-representation, so that the court will establish that 'he knows what he is doing and his choice is made with eyes open.'"£ Faretta v. California, supra, 422 U.S. at 835, 95 S.Ct. at 2541, 45 L.Ed.2d at 582 (quoting Adams v. United States ex rel. McCann, supra, 317 U.S. at 279, 63 S.Ct. at 242, 87 L.Ed. at 275). The[***14] dissent in Faretta, however, pointed out that the majority failed to establish any practical procedural guidelines for courts to decide whether and how a defendant is to exercise the right to proceed pro se. Faretta v. California, supra, 422 U.S. at 852, 95 S.Ct. at 2549-50, 45 L.Ed.2d at 591-92 (Blackmun, J., dissenting).

   Interestingly, Maryland in 1972 had already recognized the constitutional implications of the right to counsel and the right of a defendant to represent himself if he intelligently and voluntarily waived his right to counsel. This recognition was evidenced in Maryland Rule 719, the precursor [*122] to Rule 723 c. n2£ Because the rule is intended to implement the constitutional rights, our task is limited to determining whether the trial court complied with the dictates of Rule 723 c.

n2 The Court of Appeals by Order dated April 6, 1984, approved and adopted effective July 1, 1984, a revision of the Maryland Rules.  This revision resulted in the redesignation of Md. Rule 723 c to Md. Rule 4-215.

[***15]

   Rule 723 c provides:
c.  Waiver Inquiry.

   When a defendant indicates a desire or inclination to waive counsel, the court may not accept the waiver until it determines, after appropriate questioning on the record in open court, that the defendant possesses the intelligence and capacity to appreciate the consequences of his decision, and fully comprehends:

   1. The nature of the charges against him, any lesser included offenses, and the range of allowable penalties, including mandatory and minimum penalties, if any;
 
   2. That counsel can render important assistance to him in determining whether there may be defenses to the charges or circumstances in mitigation thereof, and in preparing for and representing him at trial;

   3. That even if the defendant intends to plead guilty, counsel may be of substantial assistance in developing and presenting information which could affect the sentence or other disposition;

   4. That if the defendant is found to be financially unable to retain private counsel, the Public Defender or the court would, if the defendant wishes, provide counsel to represent him.
 
This rule establishes that when a defendant properly asserts the right to proceed[***16] pro se and has complied with the waiver provisions under Rule 723, the defendant has the right to self-representation absolutely.  A brief review of our cases that have analyzed the waiver inquiry provisions [*123] in light of a defendant's desire or inclination to proceed pro se will make clear the operation of this rule.

   In State v. Renshaw, supra, defense counsel explained to the trial court on the first day of trial that Renshaw was dissatisfied [**169] with counsel's efforts and that Renshaw desired new counsel. When the trial court asked Renshaw why he desired new counsel, Renshaw responded that he felt that his appointed counsel lacked faith in him, that his counsel believed him to be lying, and that he lacked confidence in his counsel.  The court denied Renshaw's request, but allowed Renshaw to proceed and expressly instructed defense counsel to stand by and assist Renshaw only if the latter so desired. During the trial Renshaw as well as his standby counsel remained silent.  On appeal, we held that Renshaw's request for different counsel did not constitute a waiver of the sixth amendment right to counsel, and consequently the trial court should have[***17] taken steps to ensure effective legal representation for the defendant.  Id., 276 Md. at 268, 347 A.2d at 226. We noted that courts must indulge every reasonable presumption against waiver and may not presume waiver from a silent record.  See Md. Rule 723 e (record must reflect compliance with waiver inquiry provisions).

   Four years after our decision in Renshaw, we had another opportunity to determine whether a trial court erred in failing to conduct a waiver of counsel inquiry under Rule 723 c. Snead v. State, 286 Md. 122, 406 A.2d 98 (1979). In Snead, the defendant urged the trial court on the first day of trial to consider his previously filed motion for a continuance, which had been filed on the basis that he was allegedly ill.  During his discussion of the motion with the court, Snead expressed dissatisfaction with his assigned public defender and explained that he "would like to get a delay in this case to get my nephew and my family time to get another attorney."£ The court denied Snead's request, reminding him that he had had sufficient time to secure other counsel.  Once Snead realized that the trial court was not going to grant the requested continuance, [***18]Snead told the [*124] court, "I don't want no attorney then."£ Id., 286 Md. at 126, 406 A.2d at 100. The trial court did not accede to this demand and indicated that Snead would have to proceed with his appointed counsel. Snead's subsequent convictions were affirmed by the Court of Special Appeals in an unreported decision.  We reversed, holding that Snead's statement ("I don't want no attorney then") was a sufficient assertion of his right to proceed pro se.£ We further held that the trial court committed reversible error by failing to conduct a Rule 723 c waiver inquiry to determine whether Snead's decision to represent himself was knowing and voluntary.

   We made clear in Snead that to establish the minimum "declaration" sufficient to constitute assertion of the right to self-representation, the "declaration [must serve] to alert the trial judge that further inquiry may be necessary. Therefore, any statement by the defendant from which the court could reasonably conclude that the defendant desired self-representation would be sufficient."£ Id., 286 Md. at 127, 406 A.2d at 101. Once a defendant indicates a desire or inclination to represent himself, the trial[***19] court must determine that the defendant's election to proceed pro se is unequivocal and that the defendant fully appreciates the consequences of proceeding without the assistance of counsel.

   An examination of these cases in light of the requirements set forth in Rule 723 c demonstrates that a defendant is not required to utter a talismanic phrase so as to place the court on notice that he desires self-representation. "Any statement by the defendant from which the court could reasonably conclude that the defendant desired self-representation would be sufficient."£ Id., 286 Md. at 127, 406 A.2d at 101. In view of this standard, we must determine whether the trial court in the instant case committed reversible error in failing to conduct a Rule 723 c waiver inquiry.

   [*125] Although Leonard appeared at trial with appointed counsel, he requested that the trial court appoint other counsel to represent him.  The trial court, in accordance with the dictates of Renshaw, determined that the defendant had not shown [**170] adequate cause and correctly denied this request.  Leonard, however, did not stop there.  Leonard made other statements before trial that, in our view, [***20] should have led the court reasonably to conclude that Leonard desired self-representation.

   Immediately after the trial court denied Leonard's request for new counsel, Leonard stated, "Well, [Krissoff is] not representing me," and "I don't want [Krissoff] to represent me."£ When Leonard was returned to the courtroom after he was ordered outside by the court, the following critical colloquy occurred:
 
COURT: I understand you want to conduct your own defense.
 
MR. LEONARD: That's the only choice I got.
 
COURT: I take it your answer is yes?
 
MR. LEONARD: It's got to be yes.  It's the only choice I have.
 
COURT: Alright.  I'm going to allow Mr. Krissoff to stay . . . .
 
MR. LEONARD: I don't want you to allow him to do nothing.  I have a right to do it (all in one man).  (Mr. Leonard's diction is not proper) [emphasis supplied.]
 
Leonard further insisted that Krissoff "is no legal advisor for me" and that he "don't need [Krissoff]" and he "don't want him [at the defense table.]"

   It seems obvious to us that Leonard expressed in clear terms a "desire or inclination" to represent himself, and that his statements should have led [***21]the trial court reasonably to conclude that Leonard desired self-representation. Cf. Howell v. State, 293 Md. 232, 241, 443 A.2d 103, 107 (1982) (defendant at no time indicated a desire or inclination to proceed pro se; defendant persistently, repeatedly, and without deviation explicitly asserted that he wanted to be [*126] represented by counsel).  In particular, Leonard's affirmative response to the court's inquiry as to whether he wanted to conduct his own defense was, standing alone, sufficient to trigger an inquiry under Rule 723 c to ascertain whether he truly wanted to represent himself.  Although the defendant's response in Snead that, "I don't want no attorney then," differs in form from that of Leonard's response, we see no substantive difference between the two statements.  Moreover, Leonard's insistence that he did not want to be represented by Krissoff dispels any contention that Leonard was seeking hybrid representation.  Cf. Colvin v. State, 299 Md. 88, 99-101, 472 A.2d 953, 958-59 (defendant did not indicate a desire to defend pro se when he stated that he be allowed to defend himself "to a degree"; defendant was "at best" seeking hybrid representation, [***22] thereby foreclosing the need to conduct a Rule 723 c waiver inquiry), cert. denied,    U.S.   , 105 S.Ct. 226, 83 L.Ed.2d 155 (1984). Because Leonard's statement was sufficient to alert the court that he desired self-representation, we conclude that the trial court was required to conduct the requisite inquiry.

   The State seeks to avoid this conclusion by arguing that Leonard's behavior effectively prevented the trial court from conducting the requisite waiver of counsel inquiry.  Under this theory, the State seems to contend that Leonard's behavior foreclosed and excused totally a Rule 723 c waiver inquiry.  Although the proposition that a defendant's conduct may in some limited circumstances preclude a Rule 723 c inquiry is correct in the abstract, we are unable to agree with the State that this proposition has any application to these facts.  A brief explanation of our rationale will reveal the flaw in the State's argument. 

   The Maryland Rules governing waiver of counsel recognize that a defendant may waive his right to counsel by conduct.  Md. Rule 723 d 2 (now Md. Rule 4-215(c)); see Brown v. State, 50 Md.App. 651, 441 A.2d 354 (1982) (defendants by their actions[***23] effectively waived their right to counsel).  For example, a defendant may waive his right to counsel, either affirmatively or by neglecting or refusing to [*127] obtain counsel.  Md. Rules 723 b 7, 723 d. Similarly, a defendant who engages in a pattern of deliberate, obstructionist misconduct may [**171] forfeit his right to self-representation. See, e.g., Faretta v. California, supra, 422 U.S. at 834-35 n. 46, 95 S.Ct. at 2541 n. 46, 45 L.Ed.2d at 581 n. 46 (suggesting that court may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct); United States v. Dujanovic, 486 F.2d 182, 187 (9th Cir.1973) (disruptive behavior may constitute constructive waiver of defendant's right of self-representation); People v. Manson, 71 Cal.App.3d 1, 49-50, 139 Cal.Rptr. 275, 302-03 (1977) (same), cert. denied, 435 U.S. 953, 98 S.Ct. 1582, 55 L.Ed.2d 803 (1978); Commonwealth v. Chapman, 8 Mass.App. 260, 267 & n. 6, 392 N.E.2d 1213, 1217-18 & n. 6 (1979) (same); People v. Krom, 91 A.D.2d 39, 45-46, 458 N.Y.S.2d 693, 698-99 (1983) (same), aff'd, 61 N.Y.2d 187, 461 N.E.2d 276, 473 N.Y.S.2d 139 (1984); Coleman [***24]  v. State, 617 P.2d 243, 245 (Okla.Crim.App.1980) (same).

   A related question, and one which the State argues is at issue in this case, is whether a defendant's disruptive conduct can ever rise to such a level to excuse a Rule 723 c inquiry.  Our short answer to the State's argument is that circumstances may arise where the defendant is so disruptive during the trial court's attempt to advise him of the dangers and disadvantages of self-representation that the court would be justified in terminating its inquiry.  In our view, these circumstances would be rare indeed.  When it does occur, however, the record must be indelibly clear that the trial court made reasonable efforts to comply with Rule 723 c.  The defendant's disruptive and obstreperous conduct during these efforts must be of a magnitude such as effectively to thwart the court from complying with the Rule or to reduce the proceeding to a mockery.  Under all the circumstances, the record must clearly reflect that the trial court made a reasonable effort to inform the defendant of his rights.

   [*128] In the case sub judice the record is devoid of any reasonable effort by the trial court to engage in a Rule 723 c waiver[***25] inquiry. When it seemed most logical for the trial court to conduct this inquiry, it merely reiterated that Krissoff would act as Leonard's standby counsel. Simply stated, the trial court made no attempt on the record to comply with Rule 723 c. Absent such an effort, we are unable to conclude that Leonard's conduct prevented the court from complying with Rule 723 c.  It is obvious from the record that the trial court was annoyed, to say the least, by Leonard's courtroom behavior.  But this annoyance, standing alone, does not justify foregoing the Rule 723 c inquiry.  It may have been prudent under these circumstances to recess the proceedings to allow the defendant to calm down as well as to help the trial court maintain its bearing.  As one court put it:
 
After all, in spite of the lofty historical and intellectual approach of Faretta , those with trial experience are quite aware that every prospective pro per is not necessarily sincerely convinced that his decision to represent himself is going to assure him of a trial more fair than if he were represented by a skilled, and experienced professional.  Whether the prospective pro per is a naive character who sincerely[***26] believes he can represent himself better than can a lawyer, a cagey loser who is going to try to reduce the trial to a shambles in the hope that somehow reversible error will creep in, a free soul with a touch of ham, or simply someone who wants to have some fun with the judicial establishment, the trial judge must recognize that the first ground of appeal is probably going to be that the defendant was allowed to represent himself without having intelligently and voluntarily made that decision.  Such are the facts of life.  Therefore, pragmatically, and defensively, in addition to the legal necessity of establishing that a defendant voluntarily and intelligently reached this decision, the trial court should also protect itself -- and the record.
 
[*129] [**172] People v. Lopez, 71 Cal.App.3d 568, 571-73, 138 Cal.Rptr. 36, 38 (1977).

   Accordingly, because the record fails to indicate that Leonard's behavior prevented the trial court from making a reasonable effort to conduct a Rule 723 c waiver inquiry, we hold that the trial court committed reversible error in failing to conduct this inquiry in response to Leonard's desire to proceed pro se.

   JUDGMENT OF THE[***27] COURT OF SPECIAL APPEALS REVERSED AND CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REMAND TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR A NEW TRIAL.  ANNE ARUNDEL COUNTY TO PAY THE COSTS. 

AUTOMOBILE TRADE ASSOCIATION OF MARYLAND et al. v. HAROLDFOLK ENTERPRISES, INC. t/a United Buying Services 
No. 97, September Term, 1983
 
Court of Appeals of Maryland
 
301 Md. 642; 484 A.2d 612; 1984 Md. LEXIS 398

 December  7, 1984

   SUBSEQUENT HISTORY: [***1]

   Motion for Reconsideration Denied January 7, 1985.

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: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED AND REMANDED TO THAT COURT FOR AN ENTRY OF A JUDGMENT CONSISTENT WITH THIS OPINION. COSTS TO BE APPORTIONED EQUALLY BETWEEN THE PARTIES.

CORE TERMS:  dealer, referral, licensed, salesmen, induce, salesman, license, customer, licensure, licensing, cross-appeal, dual, employer-employee, accord and satisfaction, buying, accommodation, seller, desired, prevail, legislative intent, settlement, affirmance, alternate, bulletin, degree of control, persuade, subtitle, supplied, entity, Maryland Rule

COUNSEL: Stephen C. Winter, Towson, Maryland (Eugene W. Cunningham, Jr. and White, Mindel, Clarke & Hill, on the brief, Towson, Maryland), for appellants, Automobile Trade Association of Maryland, Inc., Gladding Chevrolet, Inc. and Tate Chrysler Plymouth Inc.

   Avery Aisenstark, Assistant Attorney General, Stephen H. Sachs, Attorney General, Kathleen Howard Meredith, Assistant Attorney General, and Lynette M. Phillips, State Attorney, for appellant, State of Maryland.

   Ronald H. Jarashow, Annapolis, Maryland (Franch, Earnest & Cowdrey, P.A., Annapolis, Maryland, on the brief), for appellee.

JUDGES: Murphy, C.J., Cole, Davidson, * Rodowsky and Couch, JJ., and Charles E. Orth, Jr., Associate Judge of the Court of Appeals (retired), specially assigned and James C. Morton, Jr., Associate Judge of the[***2] Court of Special Appeals (retired) specially assigned.

 * Davidson, J., participated in the hearing of the case and in the conference in regard to its decision, but died prior to the adoption of the opinion by the Court.

OPINIONBY: COLE

OPINION: [*646] [**614] The central issue we must decide in this case is whether referral agents of United Buying Service (UBS), an automobile referral sales business, must satisfy the licensure requirements for vehicle salesmen under Md.Code (1984 Repl.Vol.) §§ 15-401 to -412 of the Transportation Article.

   We recount those facts necessary to place this issue in proper perspective. UBS is an automobile referral sales business with operations in Virginia, New York, Colorado, the District of Columbia, and, since 1967, Maryland.  UBS arranges sales of new vehicles to individuals belonging to member-groups, such as companies, labor organizations, and other similar entities. These individuals contact a UBS referral agent after locating a desired vehicle in the UBS price book, which lists various makes and models of new vehicles at a price that is discounted from the dealer's normal list price.  The individual provides the UBS referral agent with[***3] information concerning the desired automobile, such as the make, model, and options.  In return, the UBS referral agent sends the customer a "purchase certificate" for that vehicle.  The referral agent instructs the customer to take the certificate to a dealer who has agreed to accept UBS referrals under a verbal agreement between UBS and the dealership. Under this agreement, the dealer must sell that vehicle to the customer at the UBS price.  As consideration for UBS referrals, the dealer pays UBS $30.00 per sale.

   [*647] Approximately ninety percent of UBS's business is derived from automobile referrals, with the remaining ten percent derived from furniture referrals. The Chevy Chase -- based organization employs about twenty five individuals, most of whom are UBS referral agents.  UBS referral agents are responsible for dealing with prospective customers, often over the telephone, concerning vehicles listed in the UBS price book.  UBS hires and trains these referral agents, and pays their salaries, workmen's compensation insurance, medical benefits, and other expenses.  All UBS referral agents transact business from the Chevy Chase office.

   On the basis of a 1982 opinion[***4] by the Attorney General, the Motor Vehicle Administration (MVA) informed UBS that it would not renew the licenses of its referral agents, which were due to expire on April 30, 1983.  In response, UBS filed a declaratory judgment action in the Circuit Court for Anne Arundel County seeking injunctive and mandamus relief against the MVA.  The Automobile Trade Association of Maryland (ATA), an association of new automobile dealers, intervened in this suit.  The trial court found that UBS referral agents were required to be licensed because they were "vehicle salesmen," and that these referral agents met the licensure requirements because they were "employed by" licensed dealers. Accordingly, on April 28, 1983, the trial court ordered that the MVA renew the licenses of the UBS referral agents.  The MVA appealed to the Court of Special Appeals but we granted certiorari before judgment was entered by that Court.

   I
 
   Before we can reach the merits of this case it is necessary for us first to analyze a procedural issue raised by the appellants.  In its opinion and order, the trial court made several findings to which the appellee did not file a cross-appeal. Appellants argue that the appellee's[***5] failure to file a cross-appeal bars appellate review of the trial court's finding that UBS referral agents are "vehicle salesmen" within [*648] the meaning of § 15-101(e) of the Transportation [**615] Article and are thus required to be licensed under Maryland law.

   The Maryland Rules do not contain extensive requirements for cross-appeals. For review by this Court, Maryland Rule 812 b provides in general that any other party may file a petition for writ of certiorari within ten days of the filing of the first timely petition for writ of certiorari or within the time specified in Maryland Rule 812 a.  Similarly, for appeals to the Court of Special Appeals, Maryland Rule 1012 f generally requires any other party to file an order for appeal within ten days from the date on which the first order for appeal was filed.  Despite the lack of detailed guidance in the rules, we have discussed on numerous occasions when a cross-appeal properly lies.  E.g., Joseph H. Munson Co. v. Secretary of State, 294 Md. 160, 448 A.2d 935 (1982), aff'd,    U.S.   , 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984); Offutt v. Montgomery County Bd. of Educ., 285 Md. 557, 404 A.2d 281 (1979).[***6]

   As a general matter, a party to a trial court proceeding must file a valid, timely order of appeal to seek direct appellate review and reversal of the trial court's judgment.  See Joseph H. Munson Co. v. Secretary of State, supra, 294 Md. at 168, 448 A.2d at 939-40. In Munson, we held that an appellee could not assert on appeal that the appellant lacked standing to challenge the constitutionality of a statute because the appellee failed to file a cross-appeal from a declaratory judgment that upheld the validity of that statute.  Id. at 168, 448 A.2d at 940. In writing for the Munson Court, Judge Eldridge reasoned that the lack of standing could not be raised for the first time by the appellee on appeal because lack of standing would not serve as an alternate ground for affirming the trial court's decision on the merits. Conversely, where a party has an issue resolved adversely in the trial court, but receives a wholly favorable judgment on another ground, that party may, as an appellee and without taking a cross-appeal, argue as a ground for affirmance the matter that [*649] was resolved against it at trial.  Offutt v. Montgomery County Bd. of Educ., supra[***7] , 285 Md. at 564 n. 4, 404 A.2d at 285 n. 4; State Comm'n on Human Relations v. Amecom Div., 278 Md. 120, 123 n. 2, 360 A.2d 1, 3 n. 2 (1976). In Offutt, the appellee school board received a judgment wholly in its favor, although the trial court ruled that it had bargained in bad faith.  The school board filed a cross-appeal. Under these circumstances, we determined that the cross-appeal was inappropriate because a finding of good faith would have been an alternate ground to support the trial court's ruling.  In Amecom Div., we noted that the appellee was not required to file a cross appeal to assign any error of the trial court in support of the final decree when the appellee seeks only affirmance of that final decree.

   In light of these principles, it is apparent to us that the appellee in the case sub judice was not required to file a cross-appeal to argue in this Court that its referral agents are not "vehicle salesmen" under § 15-101(e) of the Transportation Article.  The appellee received a judgment wholly in its favor at trial insofar as that court denied the relief sought by appellants.  Without taking a cross-appeal, appellee may argue as a ground for affirmance[***8] the matter that was resolved against it at trial.  Thus, appellee can argue that we should affirm the trial court's final order on an alternate ground, i.e., that the UBS referral agents do not come within the definition of vehicle salesmen and therefore do not have to be licensed. Although this issue was resolved against appellee at trial, it nevertheless provides an alternate ground for affirmance. We therefore hold that the appellant's contention that appellee is barred from raising the contested issues because no cross-appeal was taken is without merit.

   II

   UBS and Maryland's vehicle salesmen licensing laws have often been at odds since UBS initiated its Maryland operation [*650] in [**616] 1967. Barely one year after UBS's foray into Maryland, the MVA issued a bulletin to all automobile dealers on May 21, 1968, indicating that they should not enter into selling arrangements with any person not licensed or bonded in accordance with Maryland law.  At the MVA's request, the Attorney General of Maryland issued an opinion on the matter.  The Attorney General opined that consumer buying services were "salesmen" under former Md.Code 1957, 1967 Repl.Vol.), Art. 66 1/2, §[***9] 2(49a) (current version at Md.Code (1984 Repl.Vol.), § 15-101(e) of the Transportation Article) and that dealers could not participate in an automobile sales transaction with an unlicensed buying service without violating the applicable licensing laws.  53 Op. Att'y Gen. 402 (1968). On November 20, 1968, MVA directed UBS to cease and desist its operations.  After discussions between UBS and the MVA, UBS modified its purchase certificate by having it state that UBS was the agent of the purchaser, not the dealer. Based on this modification, the MVA approved the UBS operation on January 2, 1969.

   In 1970, the General Assembly undertook an extensive revision of Maryland's motor vehicle laws.  This revision expanded the definition of "vehicle salesmen" to include an individual who "induces or attempts to induce any person to buy or exchange" a vehicle and who "receives or expects to receive" any "value from either the seller or purchaser" of a vehicle.  Chapter 534 of the 1970 Laws of Maryland (codified at Md.Code (1957, 1970 Repl.Vol.), Art. 66 1/2, § 1-210) (definition of "vehicle salesman").  Based on this new definition, the MVA again issued a bulletin that advised automobile dealers[***10] not to operate in conjunction with buying services that induce or attempt to induce the sale of vehicles, unless the representative of the buying service holds a valid salesman's license covering employment by a particular registered dealer. Bulletin from Chief, Dealer Licensing Services, Maryland Dept. of Motor Vehicles (June 16, 1971).

   [*651] Shortly after the issuance of this bulletin UBS filed suit in the Circuit Court for Montgomery County seeking an injunction prohibiting the MVA from advising dealers not to transact business with UBS and a declaration that the licensing laws were inapplicable to UBS and, moreover, were unconstitutional.  Settlement negotiations resulted in what the parties characterize as an "accommodation letter" between UBS and MVA.  Under the terms of this May 5, 1972 letter from the Deputy Administrator of the MVA to UBS's counsel, the MVA explained that UBS would be in compliance with the licensing laws if the UBS representatives became licensed vehicle salesmen. To accomplish this UBS representatives had to be licensed through, and bonded by, a licensed dealer. UBS followed this procedure for the next decade, at which time the Attorney General[***11] issued an opinion adverse to UBS.  This opinion, requested by the Secretary of Transportation, dealt with whether UBS referral agents had to comply with the appropriate licensure requirements.  67 Op.Att'y Gen. 393 (1982). The Attorney General noted that Maryland's licensing and regulatory requirements fail to accommodate adequately the operation of automobile buying referral services such as UBS, and that these businesses are unauthorized to the extent that they receive or expect to receive compensation for their referrals. More specifically, the Attorney General stated that UBS referral agents are "vehicle salesmen," but that they are ineligible for licenses because they are not "employed" by licensed dealers as required under § 15-404.  The opinion concluded:

   In summary, it is our opinion that the statutory licensing scheme does not permit the operation of car buying/referral services in the manner described above.  The licensing scheme makes it lawful only for licensed dealers and their licensed salesmen to participate in vehicle sales in Maryland.  Furthermore, the General Assembly has long required that, as a condition on which a salesman's license may be granted, the salesman[***12] [**617] must be an employee of the dealer, not some other entity. The mere alignment [*652] of buying/referral service staff members as vehicle salesmen with a dealer does not satisfy this employment requirement.
 
This opinion in turn precipitated the appellee's declaratory judgment action and this subsequent appeal.

   A

   Central to our analysis is whether UBS referral agents are vehicle salesmen within the meaning of § 15-101(e) of the Transportation Code.  The statute provides:

   (e) Vehicle Salesman.  -- (1) "Vehicle salesman" means, except as provided in paragraph (2) of this subsection, any individual who:

   (i) For a commission or other compensation, under any form of agreement or arrangement with a dealer, buys, sells, or exchanges or negotiates or attempts to negotiate a sale or exchange of an interest in a vehicle of a type required to be registered under Title 13 of this article; or

   (ii) Induces or attempts to induce any other person to buy or exchange an interest in a vehicle of a type required to be registered under Title 13 of this article and receives or expects to receive a commission or other compensation from either the seller or the buyer of[***13] the vehicle.

   (2) "Vehicle salesman" does not include:

   (i) A person described in subsection (b)(2) of this section; or

   (ii) An individual acting as a representative of a person described in subsection (b)(2) of this section.
 
Based on this definition, the trial court determined that UBS's referral agents fall within the definitional purview of § 15-101(e)(ii) because these agents induce or attempt to induce automobile sales.  The parties correctly note that the meaning of "induce" and "attempts to induce" as used within that statute is of critical importance in ascertaining whether the referral agents are vehicle salesmen. Because [*653] the Transportation Article does not define these terms, we must resort to well-settled canons of statutory construction to determine their meaning.

   As we have often stated:
 
[I]t is the duty of the courts to declare the law as the General Assembly has made it, that is, to ascertain and give effect to the intention of the legislature.  This we have said on many occasions is the cardinal rule of statutory construction.  In ascertaining the legislative intent we look to the language used, and when such language is clear[***14] and unambiguous, it must be held to mean what it expresses.  However, where the language is ambiguous and of doubtful import, the duty of the courts is to ascertain and give effect to the true legislative intent. In short, the judicial function of statutory construction lies wholly within the domain of ambiguity and uncertainty.  When exercising this function the courts may resort to extrinsic aids such as examining the history of the passage of the law, the reports of committees and commissions, the introduction of amendments and testimony given before legislative committees.  As we said in Berry v. State, [287 Md. 491, 496, 413 A.2d 557 (1980)], "where the statutory language is of doubtful meaning, the Court must venture beyond the words of the statute and consider the subject matter of the statute, the purpose underlying its enactment, and the object sought to be accomplished[.]"
 
Bledsoe v. Bledsoe, 294 Md. 183, 188-89, 448 A.2d 353, 356 (1982) (citations omitted); see Board of Examiners in Optometry v. Spitz, 300 Md. 466, 474, 479 A.2d 363, 367 (1984); City of Baltimore v. Hackley, 300 Md. 277, 283, 477 A.2d 1174, 1177 (1984). In light of these well-settled[***15] rules, we must determine the meaning of "induce" and "attempts to induce" as those terms are [**618]used in § 15-101(e)(ii) of the Transportation Article. n1

n1 Very few states have statutes that mirror the "induce" or "attempts to induce" language used in the Maryland vehicle salesman licensure statute.  E.g., Cal.Vehicle Code § 675 (West Supp.1984) (no judicial interpretation of these terms to date).

   [*654] Dictionary meanings are a useful source in determining the "natural and ordinary signification" of the terms involved.  Webster's Third New International Dictionary 1154 (1976) defines "induce" in the following manner:
 
1a: to move and lead (as by persuasion or influence . . .: prevail upon: INFLUENCE, PERSUADE . . . b: to inspire, call forth, or bring about by influence or stimulation . . . 3a: to bring on or bring about: EFFECT, CAUSE

   * * *

    syn PERSUADE, PREVAIL: INDUCE may indicate overcoming indifference, hesitation, or opposition, usu. by offering for consideration persuasive [***16]advantages or gains that bring about a desired decision . . . PERSUADE may suggest a winning over by an appeal, entreaty, or expostulation addressed as much to feelings as to reason . . . PREVAIL may be used in situations in which strong opposition or reluctance is overcome by sustained argument and entreaty[.]
 
Although induce, persuade, and prevail are considered synonyms, "induce suggests a subtler leading of a person to a course of action so that the decision seems finally to come from him[.]"£ Webster's New World Dictionary 1062 (2d ed. 1982). A leading law dictionary further defines induce as "[t]o bring on or about, to affect, cause, to influence to an act or course of conduct, lead by persuasion or reasoning, incite by motives, prevail on."£ Black's Law Dictionary 697 (5th ed. 1979).

   These definitions of induce suggest that that term is susceptible to either a restrictive or expansive interpretation.  Under a restrictive interpretation, the action taken must actually accomplish the goal, which in this case is the sale of a new vehicle.  A less restrictive interpretation would be that the action taken lead or influence one toward [*655] the desired[***17] goal.  Irrespective of the appellee's argument that "induce" be given a restrictive meaning, it is clear to us that the General Assembly intended a significantly broader meaning by its use of the language "attempts to induce."£ Appellee seeks to avoid the effect of this language by urging that we give "attempt" its criminal law meaning of a specific intent to do a criminal act. This argument is pure sophistry because it disregards the natural and ordinary signification of the term "attempt."£ The fallacy in appellee's contention is best illustrated by the definition of "attempt": "In statutes and in cases other than criminal prosecutions an 'attempt' ordinarily means an intent combined with an act falling short of the thing intended.  It may be described as an endeavor to do an act, carried beyond mere preparation, but short of execution."£ Id. at 116 (emphasis supplied.)£ Another dictionary defines "attempt" as follows: "to make an effort to do, accomplish, solve, or effect . . . -- often used in venturous or experimental situations sometimes with implications of failure[.]"£ Webster's Third New International Dictionary, supra, at 140.

   These definitions, together with[***18] our obligation to ascertain and carry out the real legislative intent, compels us to conclude that UBS referral agents induce or attempt to induce vehicle sales within the meaning of § 15-101(e)(ii) of the Transportation Article.  The act of referring a customer to a specific vehicle dealer or dealers serves "to influence," "to bring on or about", "to affect," and "to aid" the sale of a vehicle by that dealer to that particular customer. The customer expects to receive a lower purchase price and a faster transaction as the result of the referral made by the UBS agent.  The expectation of these special services and benefits are presumably not readily available at other dealers. Indeed, one dealer testified that UBS referred customers enjoy savings between [**619] $800 -- $2,000 over non-UBS customers. Of course, a sale does not always have to result by virtue of the referral because the [*656] statute uses the language "attempts to induce."£ See 67 Op.Att'y Gen., supra, at 401-02.

   Appellee discounts this reasoning by maintaining that its operation simply facilitates or carries out a purchase already decided upon by the buyer.  This argument proves too little. [***19] As an initial matter, assuming arguendo that the customer may have already decided to purchase a specific automobile before contacting a UBS referral agent, the customer has obviously not decided from which dealer to purchase the vehicle.  By referring the customer to a specific dealer, the UBS referral agent induces or attempts to induce the sale of a vehicle between that dealer and that customer. The argument also proves too much because it rests on the unsupported proposition that every customer who contacts a UBS referral agent has already firmly decided upon the desired vehicle's make, model, options, and accessories.  Although there was testimony to the effect that UBS referral agents never discuss the price or options with potential customers, other testimony indicated that referral agents would apprise potential customers of recent price increases not reflected in the UBS price book.  In addition, the UBS price book, which was offered into evidence, clearly encourages customers to contact UBS referral agents to discuss its contents.  Taken collectively, the actions on the part of the UBS referral agents have the effect of advancing the sales process.  We therefore hold [***20]that the trial court did not err in concluding that UBS referral agents induce or attempt to induce vehicle sales under § 15-101(e)(ii) of the Transportation Article and therefore met the first statutory criterion of vehicle salesmen.

   The second criterion under § 15-101(e)(ii) provides that an individual is a vehicle salesman if he "receives or expects to receive a commission or other compensation from either the seller or the buyer of the vehicle."£ The trial court found that the UBS referral agents receive compensation from the seller because the salaries of the referral [*657] agents are paid out of the proceeds received by UBS from dealers. Appellee does not contest this finding, and we cannot conclude that the trial court's finding is erroneous.  We therefore hold that UBS referral agents are "vehicle salesmen" under § 15-101(e)(ii) and must therefore comply with the licensure requirements under §§ 15-401 to -412.

   B

   Maryland law imposes various conditions upon the licensure of vehicle salesmen. These conditions provide, inter alia, that a person may not act as a vehicle salesman unless he is licensed by the MVA (§ 15-402), only individuals may apply for and be[***21] issued licenses (§ 15-403), and a person must be employed by a licensed dealer (§ 15-404).  The last condition is the focus of our attention.  Section 15-404 provides in pertinent part:
§ 15-404 Employment by licensed dealer required.

   (a) In general.  -- A person may not be licensed under this subtitle [Subtitle 4.  Vehicle Salesmen] unless the person:

   (1) Is a licensed dealer; or

   (2) Is employed as a vehicle salesman by a licensed dealer.

   UBS argues that its referral agents are "employed" by licensed dealers within the meaning of this statute because they act on behalf of the licensed dealer in making the referral on the basis of an agreement between UBS and the dealer. In an alternative argument, UBS posits that its referral agents are employees of the dealer because they satisfy the criteria for an employer-employee relationship.  Although UBS notes that dual employment would exist under its alternative argument, it nonetheless contends that this form of employment does not contravene the Maryland vehicle salesmen licensing statute.

   [**620] Appellants counter these arguments by advancing the contrary proposition that UBS referral agents are not[***22] "employed" by licensed dealers as required by § 15-404 and are [*658] therefore ineligible for licensure as vehicle salesmen. In support of this proposition, appellants maintain that UBS failed to present evidence sufficient to support a finding that the referral agents are employees of the dealers. With respect to appellee's dual employment argument, appellants explain that the licensure scheme contemplates that licensed dealers exercise exclusive supervision and control over their licensed vehicle salesmen. Furthermore, appellants insist that the General Assembly's recent rejection of legislation purporting to encompass automobile referral sales supports their view that the term "employed" contemplates the traditional employer-employee relationship.

   The trial court considered these arguments and agreed with UBS's contention that its referral agents were "employed" by both UBS and the licensed dealer. The threshold issue we must determine, therefore, is whether the UBS referral agents are employed by licensed dealers within the meaning of § 15-404.  We must thus turn our attention to that statute and adhere to the rules of statutory construction noted above.

   Nowhere does[***23] § 15-404 or the Transportation Article itself define "employed."£ That statute, however, as well as §§ 15-405 and 15-409, uses the term in the context of the vehicle salesman -- licensed dealer relationship. Appellee would have us give "employed" a meaning so broad so as to encompass any relationship between a vehicle salesman and a licensed dealer. We decline to do so because the General Assembly was careful in referring to this relationship in Subtitle 4 in terms associated with the traditional employer-employee relationship.  Cf. United Buying Serv., Inc. v. State Dep't of Revenue, 37 Colo.App. 465, 548 P.2d 1286 (1976) (court declined to restrict term "employed" to technical employer-employee relationship, and thus found that UBS itself is employed by dealers; case is distinguishable from instant case because only individuals in Maryland, not corporations, are eligible for licensure as vehicle salesmen).

   [*659] In Mackall v. Zayre Corp., 293 Md. 221, 443 A.2d 98 (1982), we set forth the following five criteria to determine the existence of an employer-employee relationship:
 
These [criteria] include (1) the power to select and hire the employee, (2) [***24]the payment of wages, (3) the power to discharge, (4) the power to control the employee's conduct, and (5) whether the work is part of the regular business of the employer.  The decisive test in determining whether the relation of employer and employee exists is whether the employer has the right to control and direct the employee in the performance of the work and in the manner in which the work is to be done.
 
Id. at 230, 443 A.2d at 103. The trial court referred to these criteria and concluded that the UBS referral agents were employees of UBS.  We agree.  UBS selected, hired, and fired the referral agents, paid their wages, social security taxes, and workmen's compensation insurance, and supervised them on a day-to-day basis.  Moreover, the work of the referral agents in referring potential customers to licensed dealers was a major part of UBS's regular business; the referral agents worked from UBS's sole Maryland office and used UBS clerical staff, office supplies, telephones, and stationery.  In addition, UBS maintained the personnel files on the referral agents.  These factors clearly indicate the existence of an employer-employee relationship between UBS and its[***25] referral agents.

   The trial court further held that UBS referral agents were also the employees of the licensed dealers to whom they made referrals. This holding raises the issue of whether the referral agents are employed simultaneously by UBS and the licensed dealers and, if so, whether the licensure [**621] provisions permit this form of dual employment.

   As an initial matter, we recognize "that, under certain circumstances, a person performing a given function simultaneously may be the employee of two employers."£ Id. at 229, 443 A.2d at 102; see Comptroller v. Atlantic Supply Co. , 294 Md. 213, 448 A.2d 955 (1982); Keitz v. [*660] National Paving Co., 214 Md. 479, 134 A.2d 296 (1957). The test for determining whether dual employment exists is whether "there is evidence to support an inference that more than one individual or company controls or directs a person in the performance of a given function."£ Mackall v. Zayre Corp., supra, 293 Md. at 230, 443 A.2d at 103 (emphasis supplied).  Based upon this standard, we must determine whether the trial court's factual determination that the UBS referral agents are employees of both UBS and the licensed dealers[***26] is clearly erroneous in light of our review of the law and the evidence.  Md.Rule 886.

   The decisive test in determining the existence of an employer-employee relationship is the right of the employer to control and direct the employee in the performance of the work and in the manner in which the work is to be done. Id. at 230, 443 A.2d at 103. Evidence adduced at trial indicated that the licensed dealers had the right to terminate their relationship with their particular UBS agent and had the right to reprimand a referral agent.  The evidence also indicated that the agents were paid from the fees collected from the dealers through referrals, that the dealers assumed various responsibilities inherent in bonding their respective referral agents, and that the dealers and agents visited the other's premises.  These facts were the only ones that gave rise to an inference of an employer-employee relationship between the dealers and the referral agents.  We cannot agree with the trial court that these facts, considered individually or collectively, constitute an employer-employee relationship.

   The control allegedly vested in the dealers is, in our view, nonexistent. The actual right[***27] to control and direct these referral agents is vested in UBS.  UBS's reliance on Mackall is misplaced.  Mackall did not create a per se rule that dual employment exists in every case where two entities affect the actions of a single employee.  Instead, Mackall was careful to limit the dual employment rule to "certain circumstances."£ A careful reading of Mackall indicates the [*661] important differences between that case and the case sub judice, and dispels the proposition that the UBS referral agents are employees of the licensed dealers.

   Factually, the two employers in Mackall, Zayre Corporation (Zayre) and Alden Millinery (Alden), exercised substantial control over the employee (Mackall). Alden operated a concession in one of Zayre's department stores.  Mackall sustained injuries when she slipped and fell while at work.  In a tort action brought by Mackall against Zayre, the jury determined that Mackall was the employee of both Alden and Zayre.  As such, her exclusive remedy was under the Workmen's Compensation law.  We affirmed the judgment in favor of Zayre, holding that Mackall was a dual employee of Alden and Zayre.  In writing for the Court, [***28] Judge Davidson noted that both entities participated in the selection, hiring, and paying of the employee.  Both had the power to discharge her and, most important, both employers exercised control over Mackall in the performance of her duties.  For instance the Zayre manager exercised control over the staffing of the Alden concession and could transfer Mackall to the Zayre jewelry department during lunchtime when that department was unattended.  Moreover, Mackall was subject to all the rules and regulations applicable to Zayre employees, and the Zayre manager was authorized to transfer a Zayre employee into the Alden concession when the concession was not adequately staffed.

   The degree of control allegedly exercised by the dealers in the case sub judice pales [**622] in comparison to that in Mackall.  Indeed, there was no evidence that the referral agents were subject to all the rules and regulations of the dealership to which they were assigned.  Simply stated, no evidence was presented that the dealers engaged in the same degree of control as that exercised by the Zayre managers in Mackall.  We therefore conclude that Mackall is clearly distinguishable from[***29] the instant case, and that the referral agents were not "employed" by the licensed dealers under § 15-404.

   [*662] Our conclusion that the referral agents are not "employed" by the licensed dealers is buttressed by a recent Attorney General's opinion to the same effect.  Although the opinion of the Attorney General interpreting legislation is not binding on this Court, it is nevertheless entitled to careful consideration.  Board of Examiners in Optometry v. Spitz, supra 300 Md. at 476, 479 A.2d at 368. The Attorney General concluded that "[t]he mere alignment of buying/referral service staff members as vehicle salesmen with a dealer does not satisfy [the § 15-407] employment requirement."£ 67 Op.Att'y Gen., supra, at 408.  Because the Attorney General recognized that his conclusion would affect the operation of a type of business that may benefit consumers, he suggested that the General Assembly adopt remedial legislation to authorize referral services to conduct business.

   In response to the Attorney General's opinion of June 8, 1982, Senate Bill 729 was introduced on February 18, 1983.  This bill proposed to add a "Buying Referral Services" subtitle to Title 15[***30] of the Transportation Article.  The rejection of this legislation by the Senate on April 7, 1983, intimates that the legislature acquiesced in the Attorney General's Opinion. See Board of Examiners in Optometry v. Spitz, supra.

   Even assuming that the trial court did not err in concluding that the referral agents were "employed" by the licensed dealers, the trial court's determination that § 15-404 permits dual employment is erroneous.  Our view of the Maryland licensure scheme convinces us that the legislature intended to proscribe dual employment.  The General Assembly intended for a one-salesman-one-dealer exclusivity principle to govern the licensing of vehicle salesmen. This principle is illustrated by the requirement under § 15-409(b) that a licensed vehicle salesman may not solicit sales for the benefit of any seller other than the licensed dealer named in his license. In addition, § 15-408 provides that a license authorizes a licensee "to be a vehicle salesman for a licensed [*663] dealer during the license year for which it is issued," while § 15-405 states that a license application must include the "name and business address of the licensed dealer by whom[***31] the applicant is or will be employed."£ This language clearly indicates that a vehicle salesman may be employed by only one licensed dealer.

   The rationale for this type of licensing scheme is to foster dealer accountability in the context of consumer transactions.  We discussed briefly the purpose of this scheme in Aero Motors v. Administrator, Motor Vehicle Admin. , 274 Md. 567, 337 A.2d 685 (1975). In the course of upholding the constitutionality of the Maryland licensure system, we observed that the statutorily-regulated franchise-dealer system was designed to encourage accountability and thus enhance consumer protection.  We further noted that the legislature intended to use some of the prevalent industry practices as a means of enforcing the licensing laws.  Id. at 579-81, 337 A.2d at 694-96. Shortly after this decision, the United States District Court for the District of Maryland elaborated upon the Aero Motors rationale in a case involving a constitutional challenge brought by a brokerage referral service.  Detroit Automotive Purchasing Servs. v. Lee, 463 F.Supp. 954 (D.Md.1978). The Detroit Automotive court emphasized the accountability and exclusivity[***32] principles that pervade the vehicle salesmen licensure provisions, and remarked: 

   [**623] In operation, this system of licensing often takes advantage of established industry practices to aid in policing the wholesale and retail market in Maryland.

   In this regard, automobile dealers play an important role in policing the conduct of motor vehicle salesmen. As a condition for obtaining a license as a vehicle salesman, an individual must either be a licensed dealer himself or employed by one. § 15-404(a).  Moreover, an applicant for a salesman's license must submit a written statement by a licensed dealer certifying that the salesman has in fact been accepted as the dealer's employee, § 14-404(b), and the application must include the name [*664] and full address of the dealer, § 15-405(1).  Finally, the issued license itself bears the name of the dealer by whom the salesman is employed, § 15-409(a), and the licensed salesman may not solicit sales for the benefit of any seller other than the licensed dealer named in his license, § 15-409(b).

   This licensed dealer, clearly identified as a result of the licensing requirements for vehicle salesmen, is himself lawfully and[***33] professionally responsible for the conduct of the employee-salesman.  Under § 15-109, the licensed dealer can, in some circumstances, lose his own license because of the misconduct of his employee.  Thus, the dealer's interest in preserving the investment in a business dependent upon retaining a dealer's license serves as an incentive to monitor the practice of the employee-salesman. In this way, dealer supervision of salesmen augments the regulation of vehicle salesmen through formal MVA adjudication of customer complaints and the imposition of sanctions directly upon the salesman, either by revoking or suspending the salesman's license.
 
Id. at 957-58 (footnotes omitted).  The Detroit Automotive Court further recognized:
 
   The pertinent restriction which requires a licensed broker to be "employed" by a licensed dealer and act as a vehicle salesman for only him, § 15-409(b), can be rationally justified as facilitating the informal supervision of vehicle brokers by licensed dealers. . . .  [T]he one-dealer-one salesman rule conceivably functions to avoid confusion among dealers concerning who will have legal responsibility for supervising the conduct of a salesman [***34]  on a given transaction.
 
Id. at 969 n. 9 (emphasis supplied).

   These cases demonstrate that the hierarchial structure found in today's automobile industry -- from manufacturer to dealer to salesman -- is an integral part of Maryland's statutory enforcement mechanism.  This mechanism places a premium on the control exercised by one party over another in the process.  In our view, § 15-404's "employed [*665] by" requirement should be read in light of this concept.  Obviously, dual employment affords a licensed dealer less control over a vehicle salesman than exclusive employment.  A qualitative difference exists between the degree of control exercised by the dealer and the degree of control it exercises over UBS referral agents.  This qualitative difference reinforces our view that § 15-404 prohibits dual employment.  Cf. United Buying Service v. Dept. of Revenue, supra (licensure provisions indicate a legislative intent that multiple licensing be permitted).

   For these reasons, we hold that the UBS referral agents are not "employed" by licensed dealers to whom they are assigned within the meaning of § 15-404.

   III

   UBS contends that the 1972 accommodation constituted[***35] an accord and satisfaction that binds the State to grant vehicle salesmen licenses to UBS referral agents under the terms of the May 5, 1972, accommodation letter from MVA to UBS.  We disagree.

   Although the equitable doctrine of accord and satisfaction ordinarily concerns monetary settlements of debts or liabilities, [**624] other settlements not involving an exchange of funds can be as equally binding as an accord and satisfaction. See Adams v. Wilson, 264 Md. 1, 12, 284 A.2d 434, 440 (1971) (recognizing that partnership dispute could be resolved by accord and satisfaction).  In Air Power v. Omega Equip. Corp., 54 Md.App. 534, 459 A.2d 1120 (1983), the court defined accord and satisfaction as follows:

   Accord and satisfaction is a method of discharging a contract or cause of action, whereby the parties agree to give and accept something in settlement of the claim or demand of the one against the other, and perform such agreement, the "accord" being the agreement, and the "satisfaction" its execution or performance.
 
Id. at 538, 459 A.2d at 1123 (quoting 1 C.J.S. Accord and Satisfaction § 1) (emphasis supplied); see Porter v. [*666] Berwyn [***36]  Fuel & Feed Co., 244 Md. 629, 224 A.2d 662 (1966). An accord and satisfaction is essentially contractual, consideration for which can take monetary or non-monetary forms. Because the State agreed to issue vehicle salesmen licenses in exchange for UBS's promises to dismiss the law suit and license its referral agents through a licensed dealer, an accord and satisfaction arguably arose.  We need not decide, however, whether the accommodation is an accord and satisfaction. Irrespective of whether a state agency was a party to that accommodation or that UBS derived substantial economic benefit therefrom, this Court will not lend its aid to enforce an agreement that directly contravenes state law.  See Patton v. Graves, 244 Md. 528, 532, 224 A.2d 411 (1966). We therefore expressly hold that the State is not required to grant vehicle salesmen licenses to UBS referral agents under the purported accommodation of May 5, 1972.

   JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED AND REMANDED TO THAT COURT FOR AN ENTRY OF A JUDGMENT CONSISTENT WITH THIS OPINION.

   COSTS TO BE APPORTIONED EQUALLY BETWEEN THE PARTIES. 

BRODIE LEE BASS, JR. v. RAQUEL ROHR 
No. 56, September Term, 1984
 
Court of Appeals of Maryland
 
301 Md. 641; 484 A.2d 275; 1984 Md. LEXIS 399

 December  5, 1984, filed

   PRIOR HISTORY: [*1]

   Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County - Judge James C. Cawood) JUDGE

COUNSEL: Leonard Z. Bulman, of Annapolis, MD. FOR APPELLANT

   Michael P. Darrow, of Annapolis, MD FOR APPELLEE

JUDGES: Argued Before, Murphy, C.J., Smith, Eldridge, Cole, Rodowsky, Couch, Higinbothom, Edward D., (specially assigned), JJ.

OPINION: PER CURIAM

   ORDER

   The petition for writ of certiorari in the above entitled case having been granted and heard, it is this 5th day of December, 1984

   ORDERED, by the Court of Appeals of Maryland, that the writ of certiorari be, and it is hereby, dismissed petition having been improvidently granted, each party to pay his/her own costs.
/s/ Robert C. Murphy, Chief Judge 

Louis L. Goldstein et al. v. TIME-OUT FAMILY AMUSEMENTCENTERS, INC. 
No. 47, September Term, 1984
 
Court of Appeals of Maryland
 
301 Md. 583; 483 A.2d 1276; 1984 Md. LEXIS 393

 November  28, 1984

   PRIOR HISTORY: [***1]  
Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals James L. Wray JUDGE.

DISPOSITION: JUDGMENT REVERSED; CASE REMANDED TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY WITH DIRECTION TO DISMISS THE BILL OF COMPLAINT.  COSTS TO BE PAID BY APPELLEE.

CORE TERMS:  exemption, regulation, demurrer, administrative remedy, exhausted, administrative remedies, constitutional attack, equal protection clause, Amusement Tax Act, Former Rule, gross receipts, general rule, declaration, amusement, judicial determination, legislative power, non-profit, attacking, recourse, charity, protest, Fourteenth Amendment, amusement tax, exhaustion of administrative remedies, declaratory judgment action, judicial review, tax imposed, well-established, cross-appeal, sub-sections

COUNSEL: Linda Koerber Boyd, Assistant Attorney General, Baltimore, Maryland (Stephen H. Sachs, Attorney General, Baltimore, Maryland, on the brief), for appellants/cross appellees.

   J. William Pitcher and Thomas M. Downs, both of Annapolis, Maryland, for appellees/cross appellants.

JUDGES: Murphy, C.J., Smith, Cole, Rodowsky and Couch, JJ., and W. Albert Menchine, Associate Judge of the Court of Special Appeals (retired), Specially Assigned.

OPINIONBY: COUCH

OPINION: [*585] [**1277] In this appeal we are principally concerned with whether the Circuit Court for Anne Arundel County erred in overruling appellant's demurrer to appellee's Bill of Complaint for Declaratory Judgment. We conclude that it did and thus reverse.

   The appellee, Time-Out Family Amusement Centers, Inc. (Time-Out), owns and operates family amusement centers in various Maryland locations.  In doing so it derives funds from amounts charged for[***2] the use of coin operated games and amusement devices.

   By sections 402 through 411 of Article 81, Annotated Code of Maryland, entitled [**1278] "Admissions and Amusement Tax," the General Assembly has provided a comprehensive scheme, should any county so resolve, for the levy and collection of taxes on the admission to certain specified places where performances are furnished (cabaret); for the use of sporting or recreational facilities or equipment; and for games of entertainment.  The maximum rate is spelled out in § 403.  Section 404 requires that any such tax levied is to be collected by the Comptroller of the State.  Section 405 requires anyone subject to the tax to make a return to the Comptroller.  What gives rise to the present controversy is § 406, which provides for certain exemptions, to be discussed later.  Section 407A provides the mechanism for assessment of taxes due and for relief to the taxpayer in the form of revision of the assessment, refund application, formal hearing before the Comptroller, and appeal to the Maryland Tax Court.  The remaining sections are not pertinent to this appeal.

   [*586] Time-Out, aggrieved by its assessment, n1 filed a declaratory [***3]judgment action (later amended) against the Comptroller, in the Circuit Court for Anne Arundel County, seeking to have the court declare Section 406 and one of the Comptroller's implementing regulations, COMAR 03.01.01.01, unconstitutional as violating the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and Article 24 of the Maryland Declaration of Rights.  The Bill also sought a declaration that the statute and regulations violated the provisions of Article 15 of the Maryland Declaration of Rights regarding uniformity of taxation; we understand this contention to have been abandoned and thus do not address it.

n1 Time-Out makes no claim for refund, however.  See Apostol v. Anne Arundel County, 288 Md. 667, 421 A.2d 582 (1980).

   The appellant demurred to the Amended Bill, specifically raising the failure of appellee to "exhaust all statutory procedures provided by law for administrative and judicial review of admissions and amusement tax assessments. . . ."£ The court[***4] passed an order, after hearing counsel and considering memoranda, by which the demurrer was overruled and dismissed; no reason therefor was given in the order, nor was the hearing transcribed, and we are thus unable to discern from the record the court's reasoning.  In any event, the appellant duly answered the Bill and subsequently moved for a summary judgment; this was denied and the matter proceeded to hearing on the merits. The trial judge ultimately rendered a written declaration which essentially held that exemption sub-sections 406(3), (5), and (6) of Article 81 were unconstitutional.  It was further found that these exemption sub-sections were to be severed from "the rest of the Admissions and Amusement tax law in Article 81, Section 402 et seq."£ Finally, the court declared "the regulation in COMAR 03.01.01.01 allowing a particular class of persons charging admissions to pay the tax on a 'tax included' basis is unconstitutional as it is in violation of the equal protection clause of the Fourteenth Amendment to [*587] the United States Constitution and Article 24 of the Maryland Declaration of Rights."

   Thereafter, the appellant appealed and a cross-appeal was noted[***5] by Time-Out.  We granted certiorari before consideration by the Court of Special Appeals in order to determine questions of public importance.

   The Comptroller's brief presents the following questions:

   "I. Should the Circuit Court have dismissed the declaratory judgment action brought to challenge a taxation statute for which the General Assembly has provided a specific statutory remedy?

   II. Did the Circuit Court, in finding certain exemptions to the Admissions and Amusement Tax Act to be unconstitutional, [**1279] ignore the well-established principle of avoidance of unnecessary constitutional adjudications?

   III. Do the exemptions to the Admissions and Amusement Tax Act set forth in § 406(3), (5) and (6) of Article 81 of the Maryland Annotated Code violate the Equal Protection Clause or Article 24 of the Maryland Declaration of Rights?
 
Did the Circuit Court incorrectly place the burden on the State to defend the classifications contrary to the well-established standard set forth by the Supreme Court and the Maryland Court of Appeals.

   IV. Does COMAR 03.01.01.01 which permits certain vendors which charge admission to a place to operate on a "tax included basis", [***6] violate the Equal Protection Clause or Article 24 of the Maryland Declaration of Rights?"

   Time-Out raises two issues by its cross-appeal:

   "I. Did the Circuit Court, having found § 406(3), (5), and (6) and COMAR 03.01.01.01 to be unconstitutional, correctly sever those provisions from the remainder of the Admissions and Amusement Tax Act and regulations?

   II. Did the Circuit Court, having found portions of § 406 to be unconstitutional, correctly sever the allegedly unconstitutional portions and uphold the remaining portion [*588] of § 406 and the Admissions and Amusement Tax Act?"

   The Comptroller's first issue addresses the trial court's denial of its demurrer to Time-Out's declaration. The Comptroller may properly argue against that ruling on appeal.  Former Rule 345(d); n2 Inter-City Co. v. Baltimore County, 218 Md. 80, 85, 145 A.2d 263, 265 (1958).

n2 Under the Rules of Procedure, effective July 1, 1984, demurrers have been eliminated.  Former Rule 345 has been replaced by Rule 2-322(b)(2).  Former Rule 345(d) is as follows:

    "If a demurrer is overruled, the party demurring shall have the right to plead to the merits without withdrawing such demurrer, and upon an appeal he shall be entitled to have the questions of law arising thereunder decided as fully as if he had not pleaded to the merits."

[***7]

   In the view we take as to the Comptroller's first issue we need not consider his remaining issues nor those raised by Time-Out; this is so because we hold that the trial court erred in overruling the Comptroller's demurrer. We explain. 

   In State Dep't of Assessments & Taxation v. Clark, 281 Md. 385, 403-04, 380 A.2d 28, 39 (1977) [footnotes omitted], Judge Orth wrote for the Court:

   "We have indicated, supra, that when an administrative remedy is provided by statute, relief provided under those statutory provisions must be exhausted before a litigant may resort to the courts.  That is, such a remedy is exclusive, and the administrative body must not be by-passed by pursuing other remedies.  Du Bois v. City of College Park, supra [280 Md. 525, 533, 375 A.2d 1098, 1104 (1977)], and cases therein cited.  However, '[t]here are few absolutes in the law, and the rule that an administrative remedy must be exhausted before recourse is had to the courts is not one of them.'£ Poe v. Baltimore City, 241 Md. 303, 308, 216 A.2d 707 (1966). There are general statements in past opinions of this Court, which taken apart from the actual decisions involved, appear to support[***8] the claim that even though there be an administrative [*589] remedy, a court of equity may intervene and act when a constitutional question is involved.  See Schneider v. Pullen, 198 Md. 64, 68, 81 A.2d 226 (1951); Kracke v. Weinberg, 197 Md. 339, 343, 79 A.2d 387 (1951). The law on the matter was made clear in Poe.  It declared that where there is full opportunity for a property owner to protest an assessment to administrative agencies and adequate provisions for judicial [**1280] review of the agencies' action, a court shall not take jurisdiction unless the administrative remedies have been exhausted. This is so even though a constitutional issue has been raised, when that issue goes to the application of a general statute to a particular situation, as contrasted with a constitutional attack upon the validity of a general enactment as a whole, which is reviewable in any event.  Id. at 308-309 [216 A.2d 707].  The Poe rule was fully in accord with prior decisions of this Court, and has since been affirmed and consistently applied."
 
Reaffirming this rule in Harbor Island Marina v. Calvert County, 286 Md. 303, 308, 407 A.2d 738, 741 (1979),[***9] Judge Digges said for the Court:

   "In explaining our reasons, we initially recognize that when an administrative remedy is statutorily directed, the nature of the relief specified by the enactment must ordinarily be utilized as a prerequisite to court action.  Md.-Nat'l Cap. P. & P. v. Wash. Nat'l Arena, 282 Md. 588, 594-95, 386 A.2d 1216, 1222 (1978); State Dep't of A. & Tax. v. Clark, 281 Md. 385, 403, 380 A.2d 28, 39 (1977). However, as we pointed out in Clark, '"[t]here are few absolutes in the law, and the rule that an administrative remedy must be exhausted before recourse is had to the courts is not one of them."'£ Id. (quoting from Poe v. Baltimore City, 241 Md. 303, 308, 216 A.2d 707, 709 (1966)).

   * * *
 
Although there is language in Soley v. St. Comm'n on Human Rel., 277 Md. 521, 527-28, 356 A.2d 254, 258 (1976) that arguably could be said to indicate otherwise, [*590] we here explain that the 'constitutional exception' to which we have just alluded permits a judicial determination without administrative exhaustion when there is a direct attack upon the power or authority (including whether it was validly enacted) of the legislative [***10]body to adopt the legislation from which relief is sought."
 
Thus it is apparent that to come within the "constitutional attack" exception to the general rule concerning the exhaustion of administrative remedies, the attack must be made to the constitutionality of the statute as a whole and not merely as to how the statute has been applied.  In our view the constitutional attack here was not to the statute as a whole.

   Although Time-Out originally claimed to attack the exemption statute in its entirety, it is clear to us that its real protest focused upon the statutory exemptions granted to recreational businesses, n3 and not upon the exemptions for non-profit and charity institutions which are also contained in § 406.  At trial, Time-Out conceded it was not attacking the non-profit and charity exemptions. Thus, we believe Time-Out was not attacking the General Assembly's legislative power to enact exemptions to a general taxation scheme.  It merely attacked certain exemptions granted to businesses similar to its own.  Absent an attack upon the legislative power, Time-Out must exhaust its administrative remedies (pursuant to § 407) before seeking a judicial determination. [***11]Harbor Island Marina, supra, 286 Md. at 308, 407 A.2d at 741.

n3 These businesses are bowling lanes, boxing and wrestling matches, tennis courts, and charter fishing.

   Time-Out next attacks COMAR 03.01.01.01, which states in pertinent part:

   "Liability for the tax exists on every person, firm, or corporation deriving gross receipts from the amounts charged for admissions, etc., as defined in the Act.  These persons, firms, or corporations may, however, charge and [*591] collect from the purchaser of any of these admissions [**1281] the amount of the tax imposed on the gross receipts derived from these admissions as part of the purchase price charged for the admissions.  If the tax is collected by any person, firm, or corporation, the tax imposed on the gross receipts shall be separately stated or the words, 'tax included,' shall be stated on any of these admissions as to the amount of tax paid by the purchaser on any of these admissions."
 
Once again Time-Out relies upon the "constitutional[***12] attack" exception to the administrative remedies doctrine.  Time-Out claims a violation of its right to equal protection based upon the Comptroller's decision to allow some businesses to use the "tax included" option while denying Time-Out that economic advantage.  Time-Out's Bill of Complaint alleges that the Comptroller construed the regulation "to allow one class of persons to pass on the tax while prohibiting another class of persons from passing on the tax. . . ."£ Thus Time-Out disagrees with the Comptroller's interpretation of the regulation. In reality what Time-Out attacks, then, is the application of the regulation to itself, and when the attack is upon the application of a regulation to a particular situation, administrative remedies must be exhausted first. n4£ State Dep't of Assessments & Taxation v. Clark, supra, 281 Md. at 404, 380 A.2d at 39. 

n4 We have held that for purposes of applying the exhaustion of remedies doctrine, a regulation shall be treated as a statute, and therefore subject to the general rule of the exhaustion doctrine.  Md. Comm'n on Human Relations v. Bethlehem Steel, 295 Md. 586, 457 A.2d 1146 (1983).

[***13]

   Finally, Time-Out maintains that the statutory administrative remedy does not provide it with an adequate remedy since neither the Comptroller nor the Maryland Tax Court can decide constitutional issues.  Time-Out's argument is without merit.  See Apostol, supra, 288 Md. 667, 421 A.2d 582 (1980) and White v. Prince George's County, 282 Md. 641, 387 A.2d 260 (1978).

   [*592] Thus this case does not present a matter which falls within the exception to the general rule of exhaustion of administrative remedies. Accordingly, the trial court erred in denying appellant's demurrer.

   JUDGMENT REVERSED; CASE REMANDED TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY WITH DIRECTION TO DISMISS THE BILL OF COMPLAINT.  COSTS TO BE PAID BY APPELLEE. 

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Stephen HenryMILLER 
Misc. Docket (Subtitle BV) No. 20, September Term, 1983
 
Court of Appeals of Maryland
 
301 Md. 592; 483 A.2d 1281; 1984 Md. LEXIS 395

 November  28, 1984

   PRIOR HISTORY: [***1]  
Circuit Court for  Anne Arundel  County Raymond G. Thieme, Jr. JUDGE.

DISPOSITION: IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS, INCLUDING ALL COSTS OF TRANSCRIPTS, PURSUANT TO RULE BV15c, FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST STEPHEN HENRY MILLER.

CORE TERMS:  escrow account, secretary, joint account, suspension, clearly erroneous, indefinite, Disciplinary Rule, transferred, misconduct, deposited, alcoholism, checks drawn, law firm, disciplinary, deposit, misappropriated, indefinitely, reapply, marital, addiction, practice of law, reasons stated, law practice, misrepresentation, misappropriation, withdrawal, disbarment, suspended, knowingly, promptly

COUNSEL: Melvin Hirshman, Annapolis, Esquire, Bar Counsel to the Attorney Grievance Commission of Maryland, for petitioner.

   Joseph P. Manck, Esquire of Annapolis, Maryland, for respondent.

JUDGES: Murphy, C.J., Smith, Eldridge, Cole, Rodowsky and Couch, JJ., and W. Albert Menchine, Associate Judge of the Court of Special Appeals (retired), Specially Assigned.

OPINIONBY: COUCH

OPINION: [*595] [**1283] The Attorney Grievance Commission, acting through Bar Counsel, filed a petition for disciplinary action against Stephen H. Miller, alleging numerous violations of the Code of Professional Responsibility. Pursuant to Maryland Rule BV 9(b), we referred the matter to Judge Raymond G. Thieme, Jr., Circuit Court for Anne Arundel County.  After conducting an evidentiary hearing, Judge Thieme concluded that Miller violated certain provisions of DR 9-102, DR 1-102, and DR 2-110. n1£ We agree and order, in [***2]light of the extenuating circumstances of this case, that Stephen H. Miller be indefinitely suspended from the practice of law.

 n1 The pertinent portions of these disciplinary rules are set forth in section I of this opinion.

   I

   Stephen Miller began the practice of law in 1975.  He quickly developed a burgeoning practice in zoning, building and realty law.

   Miller's success was short-lived, as worsening economic conditions and a deteriorating marriage forced him to close his office.  Excessive drinking, combined with the strong medication Miller was already taking, exacerbated his problems.

   In spite of Miller's inability to properly attend to his practice, he agreed to represent a client named Fred Pritt in a business transaction in December of 1981.  What followed, and ultimately gave rise to Miller's transgressions, was stated by Judge Thieme in his findings of fact: n2

   "In the beginning of December, 1981, Fred Pritt gave Miller a check in excess of $73,642 which was payable to [*596] Equitable Trust[***3] Company. Pritt testified that at that time he gave Miller oral instructions to make certain loan payments and secure the release of certain pieces of property which were subject to various mortgages.  Pritt instructed Miller to take the check to Baltimore and secure these releases from Equitable.  Apparently, Equitable's loan was about to become due and if it was to be extended, would be renegotiated at a higher interest rate.

   Fred Pritt was obviously anxious to secure the release from under the mortgage of as much of his property as he financially could before these negotiations commenced.  There is a conflict as to whether Miller or his secretary actually received this $73,642 check.  Nevertheless, the evidence is clear that on December 3, 1981, a deposit of $73,642 was made to Miller's escrow account at Equitable Trust.  On the reverse side of the check was stamped "Stephen H. Miller, Attorney-at-Law".  Pritt testified that he never authorized Miller to stamp the back of the check and deposit it in his account.  During December, Miller represented both to Equitable Trust Company and Pritt that he dropped off both the check and the releases with Equitable.  Pritt relied on this[***4] information when dealing with Equitable.  Not receiving its loan payments when due, Equitable advised Fred Pritt it intended to foreclose on his property as of December 15, 1981.  Pritt's loan was now in default.  On Christmas Eve, while at a party, Fred [**1284] Pritt questioned Miller about the releases.  Miller advised Pritt that he would promptly look into the matter when he returned to his office next week.

   The statements Miller made on Christmas Eve are accepted by the Court regardless of what Miller previously stated concerning his continuing alcohol and drug abuse.

   From November, 1981 through January, 1982, numerous checks which were made payable to Miller were drawn on his escrow account. These withdrawals were not authorized by Pritt as fees for Miller.  Also, there was a check for $1,998.50 which was made payable to the [*597] Clerk of the Court for Anne Arundel County.  Some of the checks drawn on Miller's escrow account at Equitable were signed by Miller and others by his secretary. Miller testified that he neither authorized his secretary to write these checks nor authorized her to sign his name to them.  However, Collison, an investigator for the State's[***5] Attorney's Office, testified that Miller told him that he knew that his secretary was writing checks on the escrow account and signing his name to them. 

   During this period, Miller maintained a joint account with his secretary, Ms. Jackson, at State National Bank.  This account was used to pay office bills and Miller's personal expenses.  On December 1, 1981, the joint account was overdrawn by approximately $920.00.  After December 3, 1981, most of the checks drawn on the escrow account and made payable to Miller were deposited into the joint account. From December, 1981 through February, 1982, both Miller and his secretary drew checks on this joint account both for Miller's personal use and to pay office expenses. n1

   Miller testified that the first time he knew that Pritt's funds were in his escrow account was in January, 1982.  He also learned of the foreclosure at that time.  The more credible evidence clearly shows that Miller permitted his secretary to write the checks drawn on the escrow account and knew that the funds were being deposited into the joint accounts.  Miller's testimony that the money in the escrow account was for past fees due from Pritt has absolutely no factual[***6] basis.

   On January 12, 1982, Miller cashed a $50,500 check drawn on his escrow account at Equitable Trust.  He then deposited $50,000 into an old operating account (# 700-405-2) at State National Bank.  Miller spent the remaining $500 of the escrow funds to see his father in the Virgin Islands to apprise him of the situation.  Miller testified that he was aware that he was using escrow funds for the trip.  Throughout the month of January, 1982, funds were being transferred from Miller's operating [*598] account at State National to the joint account. Miller admitted to authorizing his secretary to pay a private security guard from funds in the joint account.

   From the evidence presented, the Court finds that Miller knew that Pritt's funds were being transferred from the operating account to the joint account to pay bills.  Miller either paid or authorized payment for his office and personal bills that were drawn on the joint account.

   On February 3, 1982, Pritt retained Jerome May as his counsel.  That afternoon May spoke with Miller and demanded the return of Pritt's money. Miller told him that Pritt owed him money for legal services.  Unsatisfied with Miller's answer, May[***7] filed a Bill of Complaint and sought an Order to freeze Miller's bank accounts.  This was immediately signed by Judge Wray.  The next morning, Miller and May met with Judge Wray.  At this meeting, Miller represented that there was no intermingling of funds and that all of the funds were on [**1285] deposit at First National Bank.  Miller said that there was no problem in returning the money to Pritt at once.  Relying on these representations, May agreed to follow Miller to a previously scheduled hearing, then they would proceed to the bank.
 
   After the hearing, Miller first stopped at his office.  He talked to his secretary about a transfer of funds.  Counsel then went to State National Bank. At State National, May found that Miller only had about $32,000 in the operating account.  After making many telephone calls at the bank, Miller informed May that $48,000 was being wired from his father in Ocean City.  May received a certified check for $32,000 representing the balance in Miller's account at State National.  The balance of the funds were received by May the next day, February 5, 1982.

   [*599] After hearing testimony of two physicians on Miller's physical condition, [***8] the court concluded:

   "at the time of the misconduct (December 1981 -- February 1982), Miller's mixed substance abuse (alcohol and Percodan), personal and marital problems impaired his ability to handle his limited law practice. However, Miller knowingly misappropriated his client's funds.  Further, he consciously made misrepresentations to Judge Wray.

   At the present time, Miller has his psychiatric and emotional difficulties under control.  He is presently working fulltime as an assistant to an attorney, Anne McKenzie, in Baltimore, Maryland.  She has a general practice which does not include real estate work.  Miller's work involves the preparation of legal cases and he goes to Court with Ms. McKenzie.  McKenzie is willing to act as his mentor and allow him to practice in her office under her direct supervision."

   The court then discussed the findings with respect to the violations of the disciplinary rules.

   "Disciplinary Rule 9-102

   'Preserving Identity of Funds and Property of a Client.
 
(A) All funds of clients paid to a lawyer or a law firm, other than advances for costs and expenses, shall be deposited in one or more identifiable bank accounts maintained[***9] in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:
 
2. Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the [*600]disputed portion shall not be withdrawn until the dispute is finally resolved.
 
(B) A lawyer shall:
 
3. Maintain complete records of all funds, securities and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them.
 
4. Promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.'

   [**1286] The Court finds that Respondent failed to preserve the property of his client, Fred Pritt, by intentionally drawing checks on the escrow account for Respondent's personal and office use; by withdrawing the remaining $50,500 [***10]of Pritt's funds from the escrow account and not placing it into an escrow account at another bank; and by subsequently transferring Pritt's funds from his operating account at State National into his joint account at the same bank.

   Respondent failed to maintain complete records of Pritt's funds.  In addition, when Miller was asked by Pritt and representatives from Equitable Trust about the funds (because Equitable had not received the money to secure the releases of the lots) he did not reveal the true location of the money to them.  Lastly, Respondent violated D.R. 9-102(B)4 by not promptly delivering the money to his client when demanded on February 3 and 4, 1982.

   Disciplinary Rule 1-102

   'Misconduct.
 
(A) A lawyer shall not:
 
2. Circumvent a Disciplinary Rule through actions of another.
 
3. Engage in illegal conduct involving moral turpitude.
 
4. Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
 
[*601] 5. Engage in conduct that is prejudicial to the administration of justice.'

   Respondent, by authorizing his secretary to draw checks on his escrow account for his personal and office use, had the effect of circumventing[***11] D.R. 9-102(A)2 and D.R. 1-102(A)3.  Miller's conduct clearly shows that he knew the escrow account was almost solely made up by the deposit of the $73,000 check and his joint account was overdrawn.  Miller's intentional use of his client's funds for personal and office expenses was illegal conduct involving moral turpitude.

   Respondent misrepresented both to Equitable Trust and Pritt that he had completed the transaction.  He further misrepresented to Judge Wray and May that Pritt's funds were not commingled and were all located in one bank.  Miller's misrepresentations to Judge Wray and his delay in returning Pritt's money amounted to conduct that was prejudicial to the administration of justice.

   Disciplinary Rule 2-110

   'Withdrawal from Employment.
 
(B) Mandatory withdrawal.
 
A lawyer representing a client before a tribunal, with its permission if required by its rules, shall withdraw from employment, and a lawyer representing a client in other matters shall withdraw from employment, if:
 
2. He knows or it is obvious that his continued employment will result in violation of a Disciplinary Rule.
 
3. His mental or physical condition renders it unreasonably[***12] difficult for him to carry out the employment effectively.'

   By Respondent's own statements, he realized that his drug and alcohol problem, as well as his marital problems, impaired his ability to undertake the strain of private practice and render competent legal services.  The Court commends Miller for recognizing his impairment [*602] and voluntarily winding down his law practice. Unfortunately, Respondent should not have undertaken this task for Fred Pritt.

   Having found the above violations, it follows that Stephen Miller violated the blanket provisions of:
Disciplinary Rules 1-102
'Misconduct.

   [**1287] (A) A lawyer shall not:
 
1. Violate a Disciplinary Rule.
 
6. Engage in any other conduct that adversely reflects on his fitness to practice law.

n2 All references to the supporting authority for the court's findings of fact have been omitted.

n1 The checks included those to pay bills for American Express, rent payments for Miller's Crownsville home, telephone bills, payments toward Miller's personal loan at C.I.T. Finance Company, Safeway, Nieman Marcus, and Dennis Detective Agency."

[***13]

   Judge Thieme found as mitigating factors occurring during the entire period of misconduct Miller's excessive daily drinking coupled with the use of Percodan, emotional strain caused by marital strife and personal identity problems.

   We accept and adopt these findings since they are supported by clear and convincing evidence.

   II

    Miller filed detailed exceptions to Judge Thieme's findings, which we now address.  It must be remembered, however, that the lower court's factual findings are prima facie correct and will not be disturbed on review unless clearly erroneous. Attorney Griev. Comm'n. v. Collins, 295 Md. 532, 548, 457 A.2d 1134, 1142 (1983), citing Attorney Griev. Comm'n. v. Kahn, 290 Md. 654, 678, 431 A.2d 1336, 1349 (1981).

   Exception 1

   Miller excepts to the finding that Pritt gave Miller a check in excess of $73,640 along with oral instructions for Pritt's loan payments.  This check supplied the money which was to be later misappropriated. Respondent points to several inconsistencies in Pritt's testimony as proving that the witness was unworthy of belief.

   Judge Thieme, having observed the demeanor of the witness, was certainly entitled to believe Pritt's[***14] testimony [*603] concerning the check and instructions given to Miller.  Coincidentally, Miller made a deposit of $73,642 to an escrow account shortly after the check was allegedly given to respondent.  We find this exception to be without merit.

   Exception 2

   Miller next objects to the court's finding that by September of 1981, Miller was totally ignoring his legal practice.  Respondent claims that by this date he had closed his practice down and was not doing any further work for any remaining clients.  Miller also disputes that he improperly filed thirty three deeds.

   Whether these conclusions were warranted or not, the court explicitly stated in its written findings that the improperly filed deeds did not enter into the subsequent findings of ethical violations.  We therefore find this exception to be without merit.

   Exception 3

   Respondent here charges that the court's written findings of fact were based substantially, if not solely, on inquiry panel testimony.  Miller alleges that the judge neglected the testimony of the physicians produced at trial in determining his findings.

   Contrary to Miller's assertions, Judge Thieme reports in his findings the testimony[***15] of two physicians.  It is settled, moreover, that a judge may pick and choose the evidence on which to base his findings.  Attorney Griev. Comm'n. v. Nothstein, 300 Md. 667, 684, 480 A.2d 807, 816 (1984). We find this exception to be without merit.

   Exception 4

   Miller excepts to the finding that he advised Pritt that the releases would be looked into the week after Christmas.  Miller claims that he in fact told his secretary to handle the matter.

   [*604] Testimony was heard at various stages of the hearing that Miller himself would take the $73,642 check for the releases, that his secretary would perform the task, or that one or the other would satisfy this obligation. Ultimately, the secretary secured several releases.

   [**1288] We conclude that Judge Thieme could have found that Miller stated he would personally take the check for the releases.  In any event, this specific finding is insignificant and irrelevant to the ultimate finding of misappropriation and violation of other disciplinary rules.  It follows that the exception is without merit.

   Exceptions 5 and 6

   Miller criticizes the court's finding that both he and his secretary signed the checks drawn[***16] on the escrow account. Respondent contends that he signed only one check and that the remaining checks were signed by his secretary without authorization.  Miller also disputes the finding that he knew the money in the escrow account was being placed in a joint account with his secretary.

   The many checks introduced into evidence bear at the very least a close facsimile of Stephen Miller's signature.  Noble Collison, an investigator, testified that Miller admitted that the checks drawn on the escrow account were authorized.  Drs. Spodak and Whitfield pronounced that Miller at a minimum knew partly what was occurring in his office.  Judge Thieme heard Miller's explanations of the disbursed checks.

   From this evidence, we cannot conclude that the court's findings concerning the checks were clearly erroneous.

   Exception 7

   Miller claims that $50,500 of Pritt's original funds was eventually placed into an additional escrow account, and not an operating account as found by Judge Thieme.  Respondent concedes, however, that the evidence introduced at trial indicated that the money was placed into an [*605] operating account. Miller himself calls this alleged second escrow account[***17] an operating account in Exception 9.

   This exception is without merit.  Pritt's money, whether first transferred to a second escrow account or to an operating account at State National Bank, was ultimately transferred to a joint account to pay Miller's personal expenses.

   Exception 8

   Miller states that contrary to the court's finding, he did not authorize his secretary to pay for a private security guard with Pritt's funds.

   The court found that Miller and his secretary drew numerous checks on his joint account, one of which was to pay Dennis Detective Agency.  We cannot say that the finding of authorization for one check was clearly erroneous, and find this exception to be without merit.

   Exception 9

   This exception disputes the court's finding that Miller knew Pritt's funds were being transferred to the joint account.

   Evidence was available for the judge to conclude that Miller knew of the money transfer.  Drs. Spodak and Whitfield testified that Miller was aware of the activities in his office throughout the period the money was being transferred. Judge Thieme found that not only was Miller aware of the funds transfer, respondent either authorized or himself issued the[***18] transferring checks.  We cannot say these findings are clearly erroneous.

   Exception 10

   Miller claims that the judge erred in concluding that respondent knowingly misappropriated funds.  Specifically, he alleges that the testimony of Dr. Spodak, a psychiatrist upon whom the court partly relied for this finding, was unclear in this regard.

   [*606] Miller conceded at oral argument, however, that there was other ample evidence of his wilful misappropriation. Respondent also admitted that the judge was not bound [**1289] to accept the testimony of either of the doctors on this particular subject.  Accordingly, we reject this exception.

   Exception 11

   Miller excepts to the lower court's finding that he failed to preserve the property of his client in violation of D.R. 9-102.  In his very next statement, however, respondent admits he cannot claim that he preserved Pritt's property. Rather, Miller suggests that if he did fail to preserve the property, such failure was not intentional.

   There can be no question that the money Pritt entrusted to Miller was placed into a joint account and disbursed to pay Miller's expenses.  Respondent did not maintain proper records of Pritt's[***19] money, and could not deliver the funds to Pritt when ordered by Judge Wray.  There was ample evidence from which the court could infer Miller's violation of several provisions of D.R. 9-102. These findings are not clearly erroneous, and Miller's exception is without merit.

   Exception 12

   Miller argues that the court was incorrect in its finding of a violation of D.R. 1-102.  He argues, again, there was no showing of intentional misconduct.

   We reject this exception for the reasons stated in Exception 10.

   Exception 13

   Respondent here raises an exception to Judge Thieme's failure to include a discussion of witness Biglane's testimony.

   The fact that this testimony was not specifically discussed in the court's finding does not indicate a failure to consider it.  Attorney Griev. Comm'n. v. Kerpelman, 288 Md. 341, 361, 420 A.2d 940, 950, cert. denied, 450 U.S. 970, [*607]101 S.Ct. 1492, 67 L.Ed.2d 621 (1980). Moreover, the court was free to disregard this evidence if it was not credible.  The reception of evidence is to a large degree entrusted to the discretion of the trial judge and will seldom be reversed.  Id. at 359, 420 A.2d at 949.

   We do not believe[***20] that the court committed error.

   Exception 14

   Miller states that he never testified that $500 of the $50,500 taken from the operating account was spent to travel to see his father.

   Mr. Miller did "guess" during testimony that he spent the $500 on the trip to his father.  The court could have concluded, based on this and other testimony, that this "guess" represented the truth.

   The finding is not clearly erroneous.

   Exception 15

   Miller points out that he returned all money due Pritt within twenty-four hours.  This is not an exception to a finding of the lower court, but is a correct observation.

   Exception 16

   Miller complains in this exception about the lack of discussion by the court in its findings of the testimony of the two physicians.

   For the reasons stated in Exception 3, this exception is without merit.

   Exception 17

   Miller concludes his exceptions by saying he could not have had the ability to knowingly misappropriate Pritt's funds.

   For the reasons stated in Exceptions 10 and 12, we find this to be without merit.

   [*608] III

   We come now to the imposition of sanction on Stephen Miller.  Bar Counsel recommends disbarment; respondent requests [**1290] [***21] leniency by urging suspension with a right to immediately reapply for reinstatement.

   Judge Thieme found, and we agree, that Miller violated several disciplinary rules, and was wilfully dishonest.  Ethical violations involving wilful dishonesty will often mandate disbarment unless the most compelling extenuating circumstances are shown.  Attorney Griev. Comm'n. v. Moore, 301 Md. 169, 482 A.2d 497 (1984); Nothstein, supra, 300 Md. at 687-88, 480 A.2d at 817-18.

   We have recently recognized that problems attributed to alcohol addiction may present circumstances sufficient to warrant sanction less severe than disbarment. n3£ In cases where the addiction was proven, we have ordered indefinite suspension when the addiction was to a substantial extent responsible for the conduct of the attorney.  See, e.g., Attorney Griev. Comm'n. v. Aler, 301 Md. 389, 483 A.2d 56 (1984) (knowing misconduct and misappropriation of a client's funds by an attorney suffering from alcoholism resulted in indefinite suspension); Attorney Griev. Comm'n. v. Nichols, 301 Md. 172, 482 A.2d 499 (1984) (attorney who neglected clients' cases due to alcoholism ordered indefinitely suspended with right to[***22] immediately reapply); Attorney Griev. Comm'n. v. Truette, 299 Md. 435, 474 A.2d 211 (1984) (indefinite suspension with limited reinstatement ordered for alcoholic attorney who failed to act competently and zealously); Attorney Griev. Comm'n. v. Dunphy, 297 Md. 377, 467 A.2d 177 (1983) (attorney convicted of misappropriation of client's funds indefinitely suspended where acts giving rise to disciplinary charges resulted from physical and mental maladies including alcoholism); Attorney Griev. Comm'n. v. Willemain, 297 Md. 386, [*609] 466 A.2d 1271 (1983) (attorney's incompetence caused by alcoholism; court ordered indefinite suspension with right to immediately reapply if enumerated conditions met); Attorney Griev. Comm'n. v. Finlayson, 293 Md. 156, 442 A.2d 565 (1982) (attorney's neglect of client matters because of alcoholism resulted in indefinite suspension with right to immediately reapply).

n3 For a comprehensive analysis of how courts from across the country have treated cases of this nature, see Annot., 26 A.L.R. 4th 995, 1029, § 9 (1983).

[***23]

   Judge Thieme found that at the time of the misconduct, Miller's mixed substance abuse, personal and marital problems impaired his ability to handle his limited law practice. The court urged us to consider these several mitigating factors when reviewing respondent's actions.  These facts, while not excusing the dishonest and improper acts, were causally connected and sufficiently exculpatory to warrant indefinite suspension.

   By this sanction we do not in any way lessen our resolve to deal severely with those found to have wilfully misappropriated a client's money.  We merely hold that in this case, our primary goal of protecting the public will be satisfied by indefinitely suspending Stephen Miller from the practice of law.

   IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS, INCLUDING ALL COSTS OF TRANSCRIPTS, PURSUANT TO RULE BV15c, FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST STEPHEN HENRY MILLER. 

VYTAR ASSOCIATES et al. v. The MAYOR AND ALDERMEN OF theCITY OF ANNAPOLIS 
No. 117, September Term, 1983
 
Court of Appeals of Maryland
 
301 Md. 558; 483 A.2d 1263; 1984 Md. LEXIS 387

 November  27, 1984

   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 CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED. CASE REMANDED TO THAT COURT WITH DIRECTION TO AFFIRM THE JUDGMENT OF THE MARYLAND TAX COURT.  COSTS TO BE PAID BY MAYOR AND ALDERMEN OF THE CITY OF ANNAPOLIS.

CORE TERMS:  refund, emergency, license fees, rental, erroneously, municipal, dwelling, mistakenly, collected, license fee, curative, ratification, collection, subtitle, invalid, retroactively, municipality, authorize, validate, sentence, license, legislative policy, retrospectively, retroactive, recordation, canal, retrospective application, jurisdiction to entertain, purported, ordinance

COUNSEL: Alan Chep, Annapolis, Maryland (Hyatt, Chep & Winegrad, P.A., Annapolis, Maryland, on the brief), for appellants.

   Richard T. Wright, Annapolis, Maryland (Frederick C. Sussman, City Attorney, and Wright & Wright, P.A., Annapolis, Maryland, on the brief), for appellees.

JUDGES: Murphy, C.J., Eldridge, Cole, Davidson, * Rodowsky and Couch, JJ., and W. Albert Menchine, Associate Judge of the Court of Special Appeals (retired), Specially Assigned.

* Davidson, J., participated in the hearing of the case and in the conference in regard to its decision, but died prior to the adoption of the opinion by the Court.

OPINIONBY: RODOWSKY

OPINION: [*560] [**1264] These are claims for refund of license fees voluntarily paid to a municipality under an ordinance later judicially invalidated for lack of municipal power.  We must[***2] first determine whether the refund statute relied upon, Md.Code (1957, 1980 Repl.Vol.), Art. 81, § 215, authorizes refunds of license fees paid under the circumstances presented here.  If it does, we must then decide the constitutionality of an attempt by the General Assembly retroactively to validate municipal imposition of the class of fees involved.

   The Annapolis City Code (1969) (ACC) § 12-16 proscribes the operation of certain rental dwellings in the City of Annapolis without a license and establishes a license fee. Vytar Associates, Refuse Removers, Inc., and Hilltop Associates (Owners), each of which operated rental dwellings in the city, voluntarily paid, for several years, substantial fees to the Mayor and Aldermen of the City of Annapolis, a municipal corporation, (Annapolis) for operating licenses. [*561] Then this Court decided Campbell v. City of Annapolis, 289 Md. 300, 424 A.2d 738 (1981). We held that the license fee imposed by ACC § 12-16(f) was invalid under MD. Const. art. XI-E, § 5 because the fee had not been expressly authorized by the General Assembly.  Id. at 311-12, 424 A.2d at 744. Whereupon each of Owners filed a claim with Annapolis for[***3] a refund of the license fees which it had paid.  Then the General Assembly responded to Campbell by enacting two identical bills as emergency legislation. See Ch. 565 (S.B. 751) and Ch. 684 (H.B. 1292) of the Acts of 1981.  Section 1 of this legislation, codified as Md.Code (1957, 1981 Repl.Vol., 1984 [**1265]Cum.Supp.), Art. 23A, § 2(b)(32) and (33), expressly bestows upon an incorporated municipality the power which we had found in Campbell to be lacking, namely the right to charge a rental dwelling license fee. Section 2 of the emergency legislation, not codified, in terms ratifies previously imposed fees.

   Annapolis disallowed the claims.  Owners appealed to the Maryland Tax Court. The Maryland Tax Court held that "the refund claims should have been honored and paid."£ Annapolis noted an appeal to the Circuit Court for Anne Arundel County. The circuit court reversed the order of the Maryland Tax Court.  This appeal by Owners followed on which we issued the writ of certiorari on our own motion prior to consideration of the case by the Court of Special Appeals.

   Owners suggest that the threshold question is whether the Maryland Tax Court had jurisdiction to[***4] entertain the claims for refunds of the license fees. This question, however, is answered by a determination whether Owners were entitled to file claims with Annapolis for a refund of the fees which they paid. If they were so entitled, the Maryland Tax Court had jurisdiction to entertain an appeal in the event the claims were disallowed.  We explain.

   Owners "do not dispute that the common law rule in Maryland is that in the absence of some statutory provision authorizing it, taxes, fees or other governmental charges [*562] voluntarily paid under a mistake of law cannot be recovered back.  Walk-A-Show, Inc. v. Stanton, 182 Md. 405[, 35 A.2d 121] (1943)."£ See White v. Prince George's County, 282 Md. 641, 651-54, 387 A.2d 260, 266-67 (1978); Rapley v. Montgomery County, 261 Md. 98, 106-11, 274 A.2d 124, 128-31 (1971). The Maryland Legislature, however, has somewhat eased the plight of the harried taxpayer by creating over the years the present scheme for the refund in certain circumstances of ordinary and special taxes and of "other fees or charges."£ Md.Code (1957, 1980 Repl.Vol., 1984 Cum.Supp.), Art. 81, title "Revenue and Taxes," §§ 213-219 comprising the subtitle[***5] "Refund of Taxes." n1£ See White, 282 Md. at 647-48, 387 A.2d at 264-65; Rapley, 261 Md. at 109-10, 274 A.2d at 130.

n1 Ordinary taxes are "[d]irect taxes imposed in respect of real or personal property."£ Art. 81, § 6.  Special taxes "by necessary implication include all taxes imposed by Art. 81 other than direct taxes, whether specifically listed [in § 6] or not."£ Latrobe Brewing Co. v. Comptroller of the Treasury, 232 Md. 64, 70, 192 A.2d 101, 103 (1963) (emphasis added).

   Within that subtitle, § 215, set forth infra, is the statute on which Owners rely for entitlement to refunds and to avoid the common law rule.  They first made their claims at the municipal level (§ 216) and appealed to the Maryland Tax Court pursuant to § 217 from the "final action taken under the provisions of § 216 . . . in disallowing [their] claim[s] for refund . . . ."£ Section 224 of Art. 81 bestows on the Maryland Tax Court "the powers and duties in [Art. 81] specified."£ Consequently if Owners[***6] had the right to claim a refund from Annapolis under § 215, the Maryland Tax Court, by § 217, had jurisdiction to entertain an appeal from a disallowance of the claim. n2

n2 Despite the urging of Annapolis, we do not think that Md.Code (1957, 1982 Repl.Vol.), Art. 41, § 318 compels a contrary view.  In Montgomery County Council v. Supervisor of Assessments, 275 Md. 339, 340 A.2d 302 (1975), we pointed out that it was "§ 224 of Art. 81, enacted as part of the same statute as § 318 of Art. 41, [which] provided that the powers of the Tax Court were those specified in Art. 81, the tax article."£ Id. at 348, 340 A.2d at 307. We believed that "[t]he language in § 318 referring to the jurisdiction of the Tax Court was . . . descriptive only, setting forth the 'quasi-judicial' functions that had previously been exercised by the State Tax Commission."£ Id.£ We opined that the Legislature did not intend, "by the provisions of Art. 41, § 318, to expand [or restrict] the jurisdiction of the Tax Court beyond that described in the various provisions of Art. 81, the tax article of the code."£ Id. at 347, 340 A.2d at 307.

[***7]

   [*563] The principal issue between the parties arises over the construction of § 215.  In [**1266] order to highlight the problem we present as separate paragraphs the three clauses of § 215 which describe when its refund authorization applies.

   Whenever any person

   [1] shall have erroneously or mistakenly paid to any State, county or municipal agency authorized to collect the same more money for special taxes or other fees or charges, than was properly and legally payable, or
 
   [2] shall have paid any special taxes which were erroneously or illegally assessed or collected, or

   [3] penalties or interest thereon collected without authority, or in any other manner wrongfully collected, he may file with such agency a written claim for the refund thereof.  Such agency shall investigate the merits of such claim, and the taxpayer filing the same shall be entitled to a hearing thereon before such agency.  Such claim for refund shall be in such form[,] verified in such manner, contain such information and be supported by such documents as may be prescribed by the Comptroller, or the chief fiscal officer of the county or municipality, as the case may be, and shall be filed[***8] within three years from the date of the payment of the special taxes, fees, charges, penalties or interest for which refund is requested.

   The parties agree that the monies Owners paid and seek to have refunded represent license fees and not special taxes. n3£ Under the first clause a person is entitled to a [*564] refund "[w]henever [he] shall have erroneously or mistakenly paid to any . . . municipal agency authorized to collect the same more money for special taxes or other fees or charges, than was properly and legally payable . . . ."£ The disputed payments met these criteria. They fell into the category of "other fees or charges" as fees to obtain licenses to operate rental dwellings. n4£ The fees were "erroneously or mistakenly paid" because the law establishing them was declared unconstitutional.  They were paid to the agency designated by the Annapolis City Code to collect them.  They were in an amount more than was "properly and legally payable" because in fact no fee at all was then "properly and legally payable."£ That is, the words "more money" must be read in conjunction with the phrase "than . . . properly and legally payable."

n3 It seems that ACC § 12-16 goes to the regulation of rental dwellings by requiring a license to operate them and not to the raising of revenue by way of taxes.  Subsection (a) flatly declares:

   No person shall operate a single rental dwelling unit, multiple dwelling, bed and breakfast home or rooming house unless he holds a current, unrevoked operating license issued by the city clerk, . . .
under certain conditions set out in subsections (a), (b), (c), (d), (e), (g), and (h) upon payment of an amount fixed by subsection (f).

   In Campbell v. City of Annapolis, supra, there was no reason "for us to decide whether the fee imposed by § 12-16(f) of the Annapolis City Code is primarily revenue-raising or is primarily for a regulatory purpose."£ 289 Md. at 305, 424 A.2d at 741.

[***9] 

n4 We are not in accord with Annapolis' suggestion that license fees are not within the scope of the language "other fees or charges."£ Like the word "any" in conjunction with "any special taxes," "other" is an "uncompromising" word to be considered broadly.  See Latrobe Brewing Co. v. Comptroller of the Treasury, supra, 232 Md. at 70, 192 A.2d at 104.

   Annapolis focuses, as did the circuit court, on the phrase "paid to any . . . municipal agency authorized to collect the same."£ It is the view of Annapolis that because the code provision fixing the fee was declared unconstitutional, the municipal agency was never "authorized to collect" a fee.  It is apparent to us that the authority to collect the fee referred to in Art. 81, § 215 is with respect to the statutory authority bestowed and not to the constitutional validity vel non of the fee itself.  Annapolis had purported authority under the Annapolis City Code to collect the license fees [*565] and they were paid, as [**1267] required by the Code, to Annapolis.  Reference to "agency authorized to collect" appears in clause[***10] one of the first sentence of § 215.  The second sentence twice refers to "such agency," despite the fact that the second sentence applies to all three clauses.  The second sentence applies to payments made "erroneously or mistakenly," to payments of taxes "illegally assessed or collected," and to penalties and interest "collected without authority."£ Similar usage of the words "agency authorized to collect the same" and "such agency" in §§ 216 through 218 indicates that these words are not used to limit claims but, rather, to identify the agency to which the claim is to be submitted.

   Annapolis also presents the view, espoused by the circuit court, that if the first clause of § 215 provides Owners with entitlement to file a claim for a refund, then the refunds authorized by the second clause would be encompassed by the first clause so that "the second clause would be rendered surplusage."£ This, Annapolis emphasizes, would violate "[a] cardinal rule of statutory construction . . . ."£ We do not agree that the second clause is superfluous. The purpose of the second clause is to contrast the operation of § 215 with the different rule for refunds of ordinary taxes established in[***11] §§ 213 and 214.  A brief historical review clarifies our reading.

   In the general revision of Art. 81 effected by Ch. 226 of the Acts of 1929, refunds were treated in §§ 152 and 153, both of which dealt with persons who had "erroneously or mistakenly paid . . . ."£ Section 152 related to "State taxes" and § 153 to "taxes or other charges" paid to a county or the City of Baltimore. These sections made no distinction between ordinary and special taxes.  In 1933 Mayor of Baltimore v. Home Credit Co., 165 Md. 57, 166 A. 604, on motion for reargument, 165 Md. 69, 69, 167 A. 552, 552, involving the valuation of intangibles for ordinary taxation, decided that the remedies by way of appeal of an assessment were cumulative to refund and not exclusive.  The taxpayer could obtain a refund of taxes paid on nontaxable [*566] intangibles which the taxpayer had included in its report to the assessor.  In 1934 this Court held that a taxpayer could assert the unconstitutionality of imposing ordinary taxes on his out-of-state intangible property in resisting a tax collection suit and that the defense had not been lost by failure to raise it on appeal from the assessment.  Mayor of Baltimore [***12]  v. Gibbs, 166 Md. 364, 367-68, 171 A. 37, 38, cert. denied, 293 U.S. 559, 55 S.Ct. 71, 79 L.Ed. 660 (1934).

   Then Ch. 407 of the Acts of 1935 added "other charges" to § 152, as a subject of refunds which could be obtained from the state.  Chapter 407 also added in § 153 a proviso applicable to both refund sections which was "apparently intended to overcome, to the extent specified, the Gibbs and Home Credit cases, supra."£ Wasena Housing Corp. v. Levay, 188 Md. 383, 391, 52 A.2d 903, 907 (1947). That amendment to § 153 read:
 
[P]rovided, however, that no refund under the provisions of this or the preceding section of this sub-title shall be required in any case where the validity of the assessment upon which such taxes were levied might have been challenged by way of appeal therefrom under any of the provisions of this Article.

   The General Assembly restructured the "Refund of Taxes" subtitle of Art. 81 into its present basic format by Ch. 701 of the Acts of 1941.  In outline form the 1941 subtitle contained
 
-- a section authorizing certain refunds of state ordinary taxes (now § 213);
 
-- a section authorizing certain refunds of county[***13] and municipal ordinary taxes (now § 214);
 
-- a section authorizing certain refunds of state special taxes or other fees and charges (later enlarged to embrace counties and municipalities and now § 215);
 
-- [**1268] a section on the procedure for applying for refunds, applicable at least to special taxes or other fees and charges (now § 216);
 
[*567] -- a section on appeals from the initial agency action taken under the preceding section (now § 217);
 
-- a section on the general mechanics of paying from public monies refunds "of special taxes, fees, charges, penalties or interest" (now § 218); and
 
-- a section on the effect of other unpaid taxes owed by the taxpayer (now § 219).
 
Significant for present purposes is the fact that the substance of the 1935 proviso concerning appeals from assessments was expressly continued only in the two sections (§§ 161 and 162 of Ch. 701) dealing with ordinary taxes.  Their successors, §§ 213 and 214, still include the following part of the 1941 enactment:
 
No refund shall be made . . . in any case where it appears that the assessment upon which such taxes were levied and collected has become final[***14] and has not been modified on appeal as provided in this article, and the only basis for the refund is a claim that such assessment was erroneous or excessive . . . .

   Sections 213 and 214, like their 1941 predecessors, operate "[w]henever any person shall claim to have erroneously or mistakenly paid . . . more money . . . than was properly and legally chargeable to or collectible from such person . . . ."£ In this respect clause one of present § 215 is similar.  It applies "[w]henever any person shall have erroneously or mistakenly paid . . . more money . . . than was properly and legally payable . . . ."£ But the authorization for refunds in cases involving ordinary taxes differs from that for refunds in cases involving special taxes and other fees and charges.  Clause two tells us that claims for refund under § 215 are not subject to disallowance because the overpayment of special taxes results from error in an unchallenged assessment.  Clause two makes plain that the limitation under §§ 213 and 214 on refund of money "erroneously or mistakenly paid" is not a limitation under § 215 on the refund of money "erroneously or mistakenly paid."£ Consequently clause two is not[***15] to be read as limiting the [*568] scope of clause one under which Owners' claims literally fall.  We hold that under Art. 81, § 215 Owners were entitled to file claims for refund of the license fees they had paid Annapolis.

   Next, we examine the status of the emergency legislation and its impact on the refund claims.  The Maryland Tax Court saw no need to address whether the emergency legislation was constitutional, saying:
 
This law was passed after the applications for refunds had already been made. If the claims for refund had come after [the emergency legislation] was enacted, a different situation may exist, but this Court is not deciding that at this time and indeed does not have to under the circumstances here existing.
 
The circuit court, in reversing the Tax Court, could find no basis in § 215 for granting the refunds and did not reach the constitutional issue.  On this appeal, however, Owners vigorously dispute the validity of the emergency legislation. n5£ Although the question was not decided in either of the lower courts, it was presented to each of them.  The question is pertinent to a final resolution of this appeal.  We shall exercise our discretion[***16] under Maryland Rule 885 and answer it.

n5 In this Court Annapolis does not address the question of the constitutionality of the emergency legislation.  Like the circuit court, but contrary to our view, Annapolis stands on the position that § 215 of Art. 81 does not apply.  On the improper premise that there was no authority for the refunds, Annapolis posits that the order of the Tax Court was arbitrary and capricious.

   The chronology of events leading to the appeals by Owners to the Maryland Tax Court is as follows:
[**1269] March 31, 1978 -- August 15, 1980: license fees were paid by Owners to Annapolis as required by ACC § 12-16.
January 16, 1981: this Court held that the license fee provision of the Annapolis City Code, § 12-16(f), was invalid as offending the Maryland Constitution.
March 16-20, 1981: pursuant to Art. 81, § 215, claims were filed by Owners for refunds of the fees paid.
[*569] May 19, 1981: emergency legislation was passed, effective on May 19, 1981, to cure the constitutional[***17] infirmity of § 12-16(f).
June 24, 1981: Annapolis refused to approve the claims and the refunds were disallowed.
 
   As we have seen, the emergency legislation, Chs. 565 and 684 of the Acts of 1981, by the provisions of § 1 sought to remedy the constitutional deficiency in ACC § 12-16(f) by giving Annapolis the express authority to charge a rental dwelling license fee, an authority which we had found in Campbell, supra, to be lacking.  Section 2 of the legislation, in its first clause, clearly indicates the intention to have the authority bestowed by § 1 apply retrospectively:

   AND BE IT FURTHER ENACTED, That this Act confirms and codifies authority heretofor thought to exist . . . .
 
The intendment of the retrospective application of § 1 is confirmed by what follows in the second clause of § 2:
 
[I]n no instance may a municipal corporation be required to refund any tax or fee, collected prior to the effective date of this Act, which would be valid under the terms of this Act.
 
Thus, the General Assembly attempted by the emergency legislation to authorize not only the collection of rental dwelling fees in the future, but also to validate the collection[***18] of such fees which had been collected in the past.  The issue in this refund case is whether the emergency legislation as applied to the license fees past paid by Owners can pass constitutional scrutiny.

   We believe that Forbes Pioneer Boat Line v. Board of Comm'rs, 258 U.S. 338, 42 S.Ct. 325, 66 L.Ed. 647 (1922) is dispositive of the issue.  Mr. Justice Holmes, who delivered the opinion of the Court, set out the facts, id. at 338-39, 42 S.Ct. at 325, 66 L.Ed. at 648:

   This is a suit, begun in 1917, to recover tolls unlawfully collected from the plaintiff, the plaintiff in error, for passage through the lock of a canal. The Supreme Court [*570] of Florida sustained the declaration, 77 Fla. 742, but on the day of the decision the Legislature passed an act, c. 7865, Acts of 1919, that purported to validate the collection. The act was pleaded.  The plaintiff demurred setting up Article I, § 10, and the Fourteenth Amendment of the Constitution of the United States, but the Supreme Court rendered judgment for the defendant on the ground that the plea was good.  80 Fla. 252.
 
The question in Forbes and the question in the case at hand are identical --
 
whether[***19] a state legislature can take away from a private party a right to recover money that is due when the act is passed.  [258 U.S. at 339, 42 S.Ct. at 325, 66 L.Ed. at 648.]
 
The Court observed that "[t]he argument that prevailed below was based on the supposed analogy of United States v. Heinszen & Co., 206 U.S. 370, 27 S.Ct. 742, 51 L.Ed.2d 1098 (1907), . . . which held that Congress could ratify the collection of a tax that had been made without authority of law."£ 258 U.S. at 339, 42 S.Ct. at 325, 66 L.Ed. at 648. The Court explained why the analogy fails:
 
A tax may be imposed in respect of past benefits, so that if instead of calling it a ratification Congress had purported to impose the tax for the first time the enactment would have been within its power . . . .  But generally ratification of [**1270] an act is not good if attempted at a time when the ratifying authority could not lawfully do the act . . . .  If we apply that principle this statute is invalid. For if the Legislature of Florida had attempted to make the plaintiff pay in 1919 for passages through the lock of a canal, that took place before 1917, without any promise of reward, there is nothing[***20] in the case as it stands to indicate that it could have done so any more effectively than it could have made a man pay a baker for a gratuitous deposit of rolls.  [Id. at 339, 42 S.Ct. at 325, 66 L.Ed. at 648-49 (citations omitted).]
 
The Court went on to acknowledge that the doctrine of ratification has been carried somewhat beyond the point it indicated, stating that

   [*571] [i]t is true that the doctrine of ratification has been carried somewhat beyond the point that we indicate, in regard to acts done in the name of the Government by those who assume to represent it . . . .  It is true also that when rights are asserted on the ground of some slight technical defect or contrary to some strongly prevailing view of justice, Courts have allowed them to be defeated by subsequent legislation and have used various circumlocutions [in various cases].  In those cases it is suggested that the meaning simply is that constitutional principles must leave some play to the joints of the machine.

   But Court can not go very far against the literal meaning and plain intent of a constitutional text.  [Id. at 339-40, 42 S.Ct. at 325-26, 66 L.Ed. at 649 (citations omitted).][***21]
 
The Court reversed the judgment on this note:
 
Defendant owed the plaintiff a definite sum of money that it had extorted from the plaintiff without right.  It is hard to find any ground for saying that the promise of the law that the public force shall be at the plaintiff's disposal is less absolute than it is when the claim is for goods sold.  Yet no one would say that a claim for goods sold could be abolished without compensation.  It would seem from the first decision of the Court below that the transaction was not one for which payment naturally could have been expected.  To say that the legislature simply was establishing the situation as both parties knew from the beginning it ought to be would be putting something of a gloss upon the facts. We must assume that the plaintiff went through the canal relying upon its legal rights and it is not to be deprived of them because the Legislature forgot. [Id. at 340, 42 S.Ct. at 326, 66 L.Ed. at 649.]

   When the facts and circumstances of the case before us are viewed in the light of the teachings of Forbes, applying the emergency legislation to the payments of the license [*572] fees by Owners cannot be[***22] upheld under the federal and state constitutional provisions protecting property rights.  See Washington Nat'l Arena v. Prince George's County, 287 Md. 38, 45 n. 3, 410 A.2d 1060, 1064 n. 3, cert. denied, 449 U.S. 834, 101 S.Ct. 106, 66 L.Ed.2d 40 (1980), and cases therein cited.  We explicated and applied Forbes in Nat'l Arena. n6

n6 Annapolis suggests that the Maryland Tax Court was constrained to follow § 2 of the emergency legislation because it took effect while the matter of the refunds was still in litigation.  It cites Janda v. General Motors Corp., 237 Md. 161, 205 A.2d 228 (1964). But in Janda we set out several rules on the retrospective application of statutes, including the concomitant restriction that "[a] statute, even if the Legislature so intended, will not be applied retrospectively to divest or adversely affect vested rights . . . ."£ Id. at 169, 205 A.2d at 232.

   Further the retrospective application of the emergency legislation to the license fees paid here does[***23] not pass constitutional muster as permissible "curative" legislation.  Washington Nat'l Arena v. Prince George's County, supra, is dispositive in this regard.  Nat'l Arena was but one of a series of cases involving recordation tax provisions that generally enabled counties [**1271] to set the rate, but that, for Prince George's County, fixed the rate at $1.10 per $500.  Prince George's County, however, established a rate of $1.65 per $500.  We had before us Ch. 129 of the Acts of 1976, which, inter alia, "purportedly 'ratified, confirmed, and validated' the 'authority to collect recordation taxes pursuant to a tax rate fixed' by resolution or ordinance of a subdivision on or after July 1, 1968."£ 287 Md. at 42, 410 A.2d at 1062. Chapter 129 became effective after the claimants had filed their claims for a partial refund of the taxes paid (the difference between the $1.10 and the $1.65 rate), but before the Maryland Tax Court disallowed the refunds. The Tax Court "viewed Ch. 129 as 'a curative act' which 'resurrected the [1968] resolution . . . fixing the recordation tax rate at $1.65 per $500.00'" and which, thus, "could be retroactively applied to petitioners [***24]without impairing constitutional rights."£ Id. at 44, 410 A.2d at 1063. We stated that "[i]t is often said that 'curative acts,' although [*573]retroactive, are generally upheld on the ground that whatever a legislative body 'may authorize in prospect, it may adopt and validate in retrospect, so long as there is no interference with vested rights or contractual obligations.'£ (Emphasis supplied.)"£ Id. at 45, 410 A.2d at 1064 (quoting Dryfoos v. Hostetter, 268 Md. 396, 404, 302 A.2d 28, 32-33 (1973) and citing Prince George's County Council v. Carl M. Freeman Assoc., 281 Md. 70, 79, 376 A.2d 860, 865 (1977)). We concluded, however, that Ch. 129 was violative of constitutionally protected rights.  In reaching this conclusion, we relied on the "distinction . . . [citing cases], between ratifying defects in authority unrelated to the underlying policy and attempting retroactively to change legislative policy under the guise of 'curative acts'."£ Nat'l Arena, 287 Md. at 51, 410 A.2d at 1068. See Comptroller of the Treasury v. Glenn L. Martin Co., 216 Md. 235, 140 A.2d 288, cert. denied, 358 U.S. 820, 79 S.Ct. 34, 3 L.Ed.2d 62 (1958).

   As set forth[***25] earlier in this opinion, we concluded in Campbell v. City of Annapolis, supra, that the failure of the General Assembly to enact general enabling legislation had evinced a legislative policy that municipal corporations were not to impose, inter alia, a rental dwelling license fee. Thus, to the extent that Chs. 565 and 684 of the Acts of 1981 would prohibit recovery of the license fees paid under an unconstitutional ordinance, the emergency legislation must be viewed as "attempting retroactively to change legislative policy under the guise of 'curative acts'."£ Nat'l Arena, 287 Md. at 51, 410 A.2d at 1068. This, as Nat'l Arena held, is not permissible.  The declaration of the Legislature in the first clause of § 2 of the Acts -- "[t]hat this Act confirms and codifies authority heretofor thought to exist" -- is of no significance in this connection.  That the Legislature couched the language in "curative" terms and recited, in effect, that its intent had always been the same,
 
does not convert a retroactive policy change into a permissible ratification statute.  The presence of "curative" language, or a recital that the Legislature in the past [*574] [***26] really intended what is now being enacted into law, cannot render a statute immune from constitutional challenge on retroactivity grounds.  If it did, any retroactive legislation could be shielded from a successful constitutional attack merely by the insertion of such language.  [Id. at 54, 410 A.2d at 1069 (footnote omitted).]

   We hold that, to the extent that Chs. 565 and 684 of the Acts of 1981 are applied retrospectively to authorize imposition of the rental dwelling license fees paid by Owners in 1978-1980, the legislation is invalid as impairing property rights in violation of the Fourteenth Amendment to the United States Constitution and of Article 24 of the Maryland Declaration of Rights.  That is, the emergency legislation is unconstitutional as applied in this case.  The Maryland Tax Court was correct in its holding that "the refund claims should have [**1272] been honored and paid," and the Circuit Court for Anne Arundel County erred in reversing the judgment.

   JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED.  CASE REMANDED TO THAT COURT WITH DIRECTION TO AFFIRM THE JUDGMENT OF THE MARYLAND TAX COURT.  COSTS TO BE PAID BY MAYOR AND ALDERMEN OF[***27] THE CITY OF ANNAPOLIS. 

AMERICAN TRUCKING ASSOCIATIONS, INC. et al. v. Louis L.GOLDSTEIN et al. 
No. 108, September Term, 1983
 
Court of Appeals of Maryland
 
301 Md. 372; 483 A.2d 47; 1984 Md. LEXIS 375

 November  1, 1984

   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 AFFIRMED.  PETITIONERS TO PAY COSTS.

CORE TERMS:  carrier, highway, registration, dollar, registration fee, user, twenty-five, commerce clause, interstate commerce, annual, marker, interstate, flat fee, flat, motor vehicle, identification, discriminate, excessive, motor vehicles, transportation, regulation, mileage, state tax, flat tax, airline, formula, state highway, fuel tax, dedicated, register

COUNSEL: George Beall, Baltimore, Maryland (Ronald U. Shaw and Miles & Stockbridge, Baltimore, Maryland, on the brief), for appellants.

   Robert R. Smith, Assistant Attorney General, Glen Burnie, Maryland (Stephen H. Sachs, Attorney General, Susan K. Gauvey and Robert B. Harrison, III, Assistant Attorneys General, Baltimore, Maryland, and Gerald Langbaum, Assistant Attorney General, Annapolis, Maryland, on the brief), for appellees.

JUDGES: Murphy, C.J., and Eldridge, Cole, Davidson, * Rodowsky and Couch, JJ., and W. Albert Menchine, Associate Judge of the Court of Special Appeals (retired), Specially Assigned.

* Davidson, J., participated in the hearing and in the conference of the case in regard to its decision, but because of illness did not take part in the adoption of the opinion.

OPINIONBY: ELDRIDGE

OPINION: [*374] [**48] The principal issue in this case is whether Maryland Code (1957, 1980 Repl.Vol., 1983 Cum.Supp.), Art. 81, § 423(a), which imposes an annual twenty-five dollar registration[***2] or "marker" fee upon all motor carriers that operate in Maryland, violates the Commerce Clause of the United States Constitution, Art. I, § 8, cl. 3.

   Section 423(a) is part of Maryland's "Road Tax on Motor Carriers" Act, Art. 81, §§ 412-430, which requires that every commercial motor vehicle n1 operated by a motor [**49] carrier n2 in Maryland pay certain road taxes and fees to support Maryland's transportation system.  Under § 423(a), all motor carriers must annually register their commercial motor vehicles with the State Comptroller for fuel tax reporting [*375] purposes and obtain an identification marker for each vehicle so registered.  The annual charge imposed for issuance of this marker is twenty-five dollars per vehicle, regardless of whether the vehicle is titled in Maryland or elsewhere. n3

n1 "Commercial motor vehicle" is defined in § 412(b) of the Act as "a passenger vehicle that has seats for more than 14 passengers in addition to the driver and for the operation of which a permit is required by the Public Service Commission, or any road tractor, or any truck-tractor or any truck having more than two axles, or any truck towing for a commercial purpose, a freight trailer or semi-trailer as defined under § 13-927(c) of the Transportation Article; which commercial motor vehicle is propelled by motor fuel."

[***3] 

n2 "Motor carrier" is defined in § 412(c) as "any person who operates or causes to be operated any commercial motor vehicle on any highway in this State."

n3 Art. 81, § 423(a), states as follows:
 
"§ 423.  Registration.

   (a) Required; identification marker; fee.  -- All motor carriers shall register each of their vehicles with the Comptroller on an annual basis for the period beginning January 1 of each year and expiring December 31 of each year. The Comptroller shall issue an identification marker for each motor vehicle registered by a motor carrier. The identification marker shall be displayed in accordance with regulations promulgated by the Comptroller.  The identification marker shall remain the property of the State of Maryland and may be recalled for any violation of the provisions of this subtitle or of the regulations promulgated thereunder.  The fee for the issuance of an identification marker is $25.00 per vehicle."

   The plaintiffs, a national organization of motor carriers as well as individual carriers subject to the registration fee under Art. 81, § 423(a), [***4]filed suit in the Circuit Court for Anne Arundel County challenging the constitutionality of the twenty-five dollar fee required by § 423(a).  They sought declaratory and injunctive relief, claiming that the fee violated the Commerce Clause, the Equal Protection Clause, the Privileges and Immunities Clause of Art. IV, and the Supremacy Clause of the United States Constitution. The circuit court, rejecting all of these arguments, rendered a judgment declaring that Art. 81, § 423(a), is constitutional.

   The plaintiffs appealed, and we granted their petition for a writ of certiorari prior to any proceedings in the Court of Special Appeals.  In this Court, the plaintiffs attack Art. 81, § 423(a), on the same federal constitutional grounds raised below, although their primary reliance is upon the Commerce Clause. We shall affirm. n4

n4 In addition to their arguments based on the Commerce Clause, Equal Protection Clause, Privileges and Immunities Clause, and Supremacy Clause, the plaintiffs in the trial court and in their brief in this Court argued that the twenty-five dollar marker or registration fee prescribed by Art. 81, § 423(a), is a "regulatory" measure rather than a "revenue" measure.  They contended that "the revenue produced by this regulatory measure does not bear a reasonable and definite relation to the purpose of the registration requirements of Section 423" and that, therefore, "the fee is void under Maryland law."£ (Petitioners' brief, p. 22.)£ At oral argument before this Court, however, the plaintiffs abandoned this argument and conceded that the marker fee was a "revenue" measure.  Consequently, we shall not consider this matter.

[***5]

   [*376] I. Commerce Clause

   Before dealing with the relevant cases involving the Commerce Clause, and the plaintiffs' specific argument under that clause, it would be useful to review the statutory background in connection with the twenty-five dollar registration fee prescribed by Art. 81, § 423(a).

   A.

   As previously indicated, the registration fee required by § 423(a) is part of the "Road Tax on Motor Carriers" subtitle of Art. 81.  The road use tax, provided for in Art. 81, § 413, taxes each motor carrier based on the amount of fuel purchased outside of Maryland but consumed in operations on Maryland highways. The rate of the road use tax is the same as the motor fuel tax, Art. 56, § 136, which is imposed on every gallon of motor fuel sold in the State. These taxes, along with other taxes and fees in connection with transportation facilities, generate revenues that are statutorily dedicated to the Maryland Transportation [**50] Trust Fund and used to build and maintain Maryland's highways and other transportation facilities.  See Code (1977, 1984 Cum.Supp.), § 3-216 of the Transportation Article; Code (1957, 1983 Repl.Vol.), Art. 56, § 137; Code (1957, 1980[***6] Repl.Vol., 1983 Cum.Supp.), Art. 81, § 412 A.

   The "Road Tax on Motor Carriers" Act, containing the annual registration fee, was first enacted in 1957.  Ch. 842 of the Acts of 1957.  At that time, each motor carrier operating within Maryland was required to register its motor vehicles with the Comptroller for one dollar per vehicle, which registration was effective for the life of the vehicle.  A metal tag was affixed to each vehicle indicating compliance with the Act.

   [*377] In 1959 the General Assembly amended the registration provision of the Act.  Ch. 495 of the Acts of 1959.  The registration fee for each vehicle became due on an annual basis.  In addition, the metal tag signifying compliance with the Act was replaced by an identification marker to be placed visibly on the vehicle, along with a registration card to be kept in the cab.

   The registration provision was further amended in 1963 and again in 1967. Annual registration fees remained at one dollar per vehicle, but fleet registration was instituted, whereby a carrier could register all of its vehicles for five dollars per year.  Trip permits were also provided, allowing carriers who travelled sporadically in Maryland[***7] to receive temporary registration, in lieu of marker and road use taxes. n5£ Ch. 541 of the Acts of 1963; Ch. 539 of the Acts of 1967.

n5 Prior to the 1967 enactment, motor carriers were permitted to operate within the State for a specified number of days upon receiving written authorization from the Comptroller, if enforcement of the registration fee requirement for that period would cause undue delay and hardship in the operation of their vehicles.  Ch. 495 of the Acts of 1959; Ch. 842 of the Acts of 1957.

   In 1981 § 423 was again amended to delete fleet registration, to impose an annual registration fee of three dollars per vehicle, and to change the beginning of the annual registration period from April 1 to January 1.  Any motor carrier operating a vehicle whose registration was scheduled to expire on March 31, 1982, could extend the registration to December 31, 1982, by paying $2.25 per vehicle.  Ch. 783 of the Acts of 1981.

   Following the 1981 legislative session, Maryland's transportation system faced[***8] a financial crisis caused by increasing maintenance and capital costs of its highway system during a period of high inflation, which costs were not being met by the State's motor vehicle fuel tax revenue.  The General Assembly, aware of the shortage of road rehabilitation funds and desiring to generate increased revenues, authorized a highway cost allocation study.  The [*378]study examined state expenditures on the Maryland highway system, and usage of the highway system by various classes of vehicles, to determine which expenditures were attributable to which classes of vehicles and whether these various classes of vehicles, through their user tax payments, paid their fair share of highway expenditures.  Utilizing two accepted cost allocation methodologies, the study disclosed that by either methodology there was a significant underpayment by the heavy truck and tractor-trailer class in tax responsibility for the costs of highway construction and maintenance.

   In response to this study, the Legislature passed and the Governor signed Senate Bill 413 (Ch. 238 of the Acts of 1982), which imposed an increase in the motor vehicle fuel tax, an increase in the trip permit fee, and[***9] an increase in the annual registration fee from three dollars to twenty-five dollars per vehicle.  The amendment also mandated that the increases in these taxes, while credited to the Transportation Trust Fund, were to be treated as highway user revenues and specifically earmarked for maintenance and repair of the State's highways and bridges.  See Ch. 238 of the Acts of 1982, and Code (1977, 1984 Cum.Supp.), § 3-216(d)(3) of the Transportation Article.

   [**51] The plaintiffs' argument in this case is that the 1982 increase in the annual registration fee, from three dollars to twenty-five dollars, "discriminates against and constitutes a burden on interstate commerce" (petitioners' brief, p. 30).

   B.

   The Supreme Court has dealt with Commerce Clause challenges to state highway user flat fees on several occasions since 1935.  In reviewing the validity of a flat fee, the Court has examined whether the fee was excessive in relation to the services provided by the State and whether it discriminated between intrastate and interstate commerce. In determining whether a flat highway user tax was excessive, [*379] the Court has considered its amount and whether it was used for[***10] highway purposes.

   The first of the "flat fee" cases was Aero Mayflower Transit Co. v. Georgia Public Service Commission, 295 U.S. 285, 55 S.Ct. 709, 79 L.Ed. 1439 (1935), which upheld a state statute that imposed an annual registration fee of twenty-five dollars per vehicle on all motor carriers operating on any highway in Georgia.  The taxes collected were statutorily dedicated to the maintenance and repair of the state highways. The plaintiff, a private interstate motor carrier, challenged the state tax on the ground that it unlawfully burdened interstate commerce by, inter alia, imposing the same fee on interstate carriers as on local carriers, when interstate carriers used the roads less often.  The Supreme Court rejected this argument, holding as follows (295 U.S. at 289, 55 S.Ct. at 711):
 
"The statute in imposing an annual license fee for the maintenance of the highways does not lay an unlawful burden on interstate commerce.

   "The fee is moderate in amount; it goes into a fund for the upkeep of highways which carriers must use in the doing of their business; it is exacted without hostility to foreign or interstate transactions, being imposed also upon domestic[***11] vehicles operated in like conditions.

   "Its validity in this aspect is attested by decisions so precisely applicable alike in facts and in principle as to apply a closure to debate . . . .

   "The appellant urges the objection that its use of roads in Georgia is less than that by other carriers engaged in local business, yet they pay the same charge.  The fee is not for the mileage covered by a vehicle.  There would be administrative difficulties in collecting on that basis.  The fee is for the privilege of a use as extensive as the carrier wills that it shall be.  There is nothing unreasonable or oppressive in a burden so imposed . . . .  One who receives a privilege without limit is not wronged by his own refusal to enjoy it as freely as he may."

   [*380] The decision in Aero Mayflower was followed in the subsequent flat fee cases.  Morf v. Bingaman, 298 U.S. 407, 56 S.Ct. 756, 80 L.Ed. 1245 (1936); Ingels v. Morf, 300 U.S. 290, 57 S.Ct. 439, 81 L.Ed. 653 (1937); Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001 (1939); Aero Transit Co. v. Comm'rs., 332 U.S. 495, 68 S.Ct. 167, 92 L.Ed. 99 (1947); Capitol Greyhound Lines v. Brice, 339[***12] U.S. 542, 70 S.Ct. 806, 94 L.Ed. 1053 (1950). Flat fees ranging from five dollars to twenty-five dollars were found to be proper. n6

n6 In only one of these cases did the Court invalidate a tax.  Ingels v. Morf, supra, 300 U.S. at 295-296, 57 S.Ct. at 442.

   Moreover two different flat taxes "laid 'in consideration of the use of the highways,'" totaling twenty-five dollars per year and imposed along with gasoline and other road taxes, were upheld in Aero Transit Co. v. Comm'rs., supra, 332 U.S. at 497, 68 S.Ct. at 168. The Supreme Court in that case first held that the two flat taxes did not discriminate against interstate commerce, saying (id. at 501-502, 68 S.Ct. at 170-171):
 
[**52] "Each applies alike to local and interstate operations.  Neither undertakes to tax traffic or movements taking place outside of Montana or the gross returns from such movements or to use such returns as a measure of the amount of the tax.  Both levies apply exclusively to operations wholly within the state[***13] or the proceeds of such operations, although those operations are interstate in character."
 
The Court continued, addressing whether the presence of other road taxes in the revenue scheme would affect the validity of the flat highway user taxes (id. at 502-503, 68 S.Ct. at 171):
 
"Moreover, it is not material to the validity of either tax that the state also imposes and collects the vehicle registration and license fee and the gallonage tax on gasoline purchased in Montana.  The validity of those taxes neither is questioned nor well could be . . . .  Nor does their [*381] exaction have any significant relationship to the imposition of the taxes now in question . . . .

   "It is far too late to question that a state, consistently with the commerce clause, may lay upon motor vehicles engaged exclusively in interstate commerce, or upon those who own and so operate them, a fair and reasonable nondiscriminatory tax as compensation for the use of its highways."

   A state highway flat tax was most recently challenged in Capitol Greyhound Lines v. Brice, 339 U.S. 542, 70 S.Ct. 806, 94 L.Ed. 1053 (1950). There the Court upheld a Maryland tax of two percent of the[***14] fair market value of specified motor vehicles, as a condition of operating such vehicles in Maryland.  This tax also was imposed in conjunction with titling, gasoline and mileage taxes.  The plaintiffs in Capitol Greyhound, however, challenged the taxing formula instead of the amount.  Relying on the prior flat tax cases, the Supreme Court held that the formula used in reaching the tax was not crucial. Instead, the Court stated that the relevant inquiry was whether the amount of the tax was excessive (339 U.S. at 544-545, 70 S.Ct. at 808):
 
"The taxes upheld have taken many forms.  Examples are taxes based on mileage, chassis weight, tonnage-capacity, or horsepower, singly or in combination -- a list which does not begin to exhaust the innumerable factors bearing on the fairness of compensation by each carrier to a state.  The difficulty in gearing taxes to these factors was recognized by this Court as early as Kane v. New Jersey, 242 U.S. 160, 168 [37 S.Ct. 30, 32, 61 L.Ed. 222 (1916)], where it said that so long as fees are reasonable in amount 'it is clearly within the discretion of the State to determine whether the compensation for the use of its highways by[***15] automobiles shall be determined by way of a fee, payable annually or semi-annually, or by a toll based on mileage or otherwise.'£ Later, in rejecting contentions that the validity of taxes must be determined by formula rather than result, the Court held that a flat fee on the privilege of using state highways 'is not a [*382] forbidden burden on interstate commerce' unless 'unreasonable in amount.'£ Morf v. Bingaman, 298 U.S. 407, 412 [56 S.Ct. 756, 758, 80 L.Ed. 1245]. See also Aero Transit Co. v. Comm'rs, 332 U.S. 495 [68 S.Ct. 167, 92 L.Ed. 99], and annotation thereto, 92 L.Ed. 109, 119-120. Yet clearly a flat fee is not geared to mileage, weight or any other factor relevant in considering the fairness of compensation for road use.  Thus, unless we are to depart from prior decisions, the Maryland tax based on the cost of the vehicles should be judged by its result, not its formula, and must stand unless proven to be unreasonable in amount for the privilege granted."

   Although no flat highway user taxes have been challenged in recent years, the Supreme Court reaffirmed the above-discussed cases in Evansville-Vanderburgh Airport Authority District v. Delta Airlines[***16] , 405 U.S. 707, 92 S.Ct. 1349, 31 L.Ed.2d 620 (1972). There the plaintiff airlines [**53] challenged a flat "head tax" of one dollar per commercial airline passenger enplaning from certain airports in Evansville, Indiana.  The airlines were required to collect and remit the tax, which was dedicated to a fund used to defray costs of improving and maintaining the airports.  The airlines challenged the flat tax as violative of the Commerce Clause. The Supreme Court held that the tax did not unreasonably burden interstate commerce, stating (405 U.S. at 715, 92 S.Ct. at 1354-55):
 
"Our decisions concerning highway tolls are instructive.  They establish that the States are empowered to develop 'uniform, fair and practical' standards for this type of fee . . . .

   "We have also held that a State may impose a flat fee for the privilege of using its roads, without regard to the actual use by particular vehicles, so long as the fee is not excessive. Aero Mayflower Transit Co. v. Georgia Public Service Comm'n, 295 U.S. 285 [55 S.Ct. 709, 79 L.Ed. 1439] (1935); Morf v. Bingaman, 298 U.S. 407 [56 S.Ct. 756, 80 L.Ed. 1245] (1936); Aero Mayflower Transit Co. [*383]  [***17] v. Board of Railroad Comm'rs, 332 U.S. 495 [68 S.Ct. 167, 92 L.Ed. 99] (1947)."

   C.
 
   While conceding that the above-discussed flat fee cases are inconsistent with their position in the present case, the plaintiffs urge that Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977), and one of its progeny, Commonwealth Edison Co. v. Montana, 453 U.S. 609, 101 S.Ct. 2946, 69 L.Ed.2d 884 (1981), effectively overruled the flat fee cases.

   Complete Auto involved a sales tax levied by Mississippi against all forms of interstate carriers for the privilege of doing business within that state.  It was assessed according to the volume of sales or gross income earned within Mississippi.  In upholding the validity of the state tax, the Court expressly overruled Spector Motor Service v. O'Connor, 340 U.S. 602, 71 S.Ct. 508, 95 L.Ed. 573 (1951). Spector had held that any tax on the privilege of doing business within a state was per se unconstitutional.  The Court in Complete Auto recognized that decisions subsequent to Spector had used circuitous reasoning to evade its mandate, and that the Spector rule had "come to operate[***18] only as a rule of draftsmanship."£ 430 U.S. at 285, 97 S.Ct. at 1082. Finding the Spector holding unsatisfactory, the Court abandoned it.  The Court in Complete Auto further indicated that the validity under the Commerce Clause of such a state tax should depend upon its practical effect.  The Supreme Court's Complete Auto opinion in several places mentioned four considerations in determining the practical effect of such a tax (id. at 277-278, 279, 287, 97 S.Ct. at 1078, 1079, 1083). They are:
 
1. Whether the activity being taxed has a sufficient nexus with the taxing state;
 
2. Whether the tax is fairly apportioned;
 
3. Whether the tax discriminates against interstate commerce;
 
[*384] 4. Whether the tax is fairly related to services provided by the state.

   In Commonwealth Edison Co. v. Montana, supra, 453 U.S. 609, 101 S.Ct. 2946, 69 L.Ed.2d 884, Montana had levied a severance tax against coal mined in the state, with the tax proceeds going into the state's general revenue.  The Supreme Court held
 
"that the Montana tax must be evaluated under Complete Auto Transit's four-part test.  Under that test, a state tax does not offend[***19] the Commerce Clause if it 'is applied to an activity with a substantial nexus with the taxing State, is fairly apportioned, does not discriminate against interstate commerce, and is fairly related to services provided by the State.'£ 430 U.S., at 279 [97 S.Ct. at 1079]."£ 453 U.S. at 617, 101 S.Ct. at 2953.
 
The Supreme Court in Commonwealth Edison, in applying the fourth prong of the [**54]Complete Auto test to the tax then before it, stated that the "tax must be reasonably related to the extent of the [taxpayer's] contact" with the taxing state.  Id. 453 U.S. at 626, 101 S.Ct. at 2958.

   In arguing that Complete Auto and Commonwealth Edison overruled the flat highway user tax cases, the plaintiffs rely heavily upon the above-quoted statement from Commonwealth Edison.  The plaintiffs contend that a flat tax can never be "related to the extent of" the taxpayer's contact with the taxing state.

   In our view, Complete Auto and Commonwealth Edison did not undercut the previously discussed flat highway user tax cases.  In neither opinion did the Supreme Court indicate any disapproval of those cases; rather, only the Spector case was overruled. [***20] Moreover, two of the flat fee cases, Ingels v. Morf, supra, 300 U.S. 290, 57 S.Ct. 439, 81 L.Ed. 653, and Clark v. Paul Gray, Inc., supra, 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001, were utilized by the Court in Complete Auto in formulating the four-part test.  430 U.S. at 278 n. 6, 97 S.Ct. at 1078 n. 6. In addition, in [*385] Commonwealth Edison, the Court specifically "put to one side" as irrelevant in reviewing a general revenue statute
 
"those cases in which the Court reviewed challenges to 'user' fees or 'taxes' that were designed and defended as a specific charge imposed by the State for the use of state-owned or state-provided transportation or other facilities and services.  See, e.g., Evansville-Vanderburgh Airport Authority District v. Delta Airlines, Inc., 405 U.S. 707 [92 S.Ct. 1349, 31 L.Ed.2d 620] (1972); Clark v. Paul Gray, Inc., 306 U.S. 583 [59 S.Ct. 744, 83 L.Ed. 1001] (1939); Ingels v. Morf, 300 U.S. 290 [57 S.Ct. 439, 81 L.Ed. 653] (1937)."£ 453 U.S. at 621-622, 101 S.Ct. at 2955-2956.
 
The dissent in Commonwealth Edison also recognized that the line of highway flat fee cases had no bearing on the general[***21] revenue tax there at issue. Id. at 647 n. 13, 101 S.Ct. at 2969 n. 13.

   D.

   We believe that the twenty-five dollar annual registration fee imposed by Art. 81, § 423(a), is clearly valid under the Commerce Clause in light of the pertinent considerations set forth in the Supreme Court's opinions.

   There is unquestionably a substantial nexus between the annual fee and the State of Maryland.  The interstate movement of commercial vehicles on Maryland's highways and bridges affords an adequate basis for the imposition of state highway user taxes necessary to support the State's highway system.  See Capitol Greyhound Lines v. Brice, supra, 339 U.S. 542, 70 S.Ct. 806, 94 L.Ed. 1053; Clark v. Paul Gray, Inc., supra, 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001; Aero Mayflower Transit Co. v. Georgia Public Service Commission, supra, 295 U.S. 285, 55 S.Ct. 709, 79 L.Ed. 1439.

   Moreover, the registration fee under § 423(a) does not discriminate against interstate commerce. It is not aimed at placing interstate business at a competitive disadvantage with local businesses by imposing greater burdens on the [*386] interstate activities.  See Maryland v. Louisiana, 451 U.S. [***22]725, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981). The registration fee applies equally to motor carriers registered in state and out of state, and those engaged in intrastate as well as interstate commerce. The purpose of § 423(a) is not to protect local carriers against foreign competition; the purpose is to spread evenly among all commercial users the tax burden of supporting Maryland's highway system.

   The plaintiffs argue that the practical effect of § 423(a) is to discriminate against out of state carriers. See Nippert v. City of Richmond, 327 U.S. 416, 66 S.Ct. 586, 90 L.Ed. 760 (1946). In support of this argument, the plaintiffs rely upon the results of an unvalidated informal survey of approximately 79,000 of the 401,000 vehicles that pay the Maryland registration fee. This survey showed that the per-mile cost of the [**55] registration fee was significantly higher for out of state carriers than for Maryland carriers. The State, however, presented the testimony of one of the authors of the General Assembly's highway cost allocation study.  Using the results of that study, he showed that, after the 1982 amendments to the Motor Carriers Act, local carriers had a total[***23] highway user tax cost of .074 cents per mile, whereas the out of state carriers' total user tax cost was .038 cents per mile.  Furthermore, an argument identical to that of the plaintiffs, namely that the registration tax is invalid because out of state carriers use the roads less often than local carriers, was expressly rejected in Aero Mayflower Transit Co. v. Georgia Public Service Commission, supra, 295 U.S. at 289, 55 S.Ct. at 710.

   Finally, the annual twenty-five dollar registration fee is not excessive. A registration tax of twenty-five dollars per year was found to be moderate in 1935; it can hardly be argued that that amount is excessive today.  Aero Mayflower Transit Co. v. Georgia Public Service Commission, supra. As previously discussed, the revenues generated from § 423(a) are statutorily dedicated to Maryland's Transportation Trust Fund.  The 1982 increase from three to [*387]twenty-five dollars is specifically earmarked for the repair and rebuilding of the State's highway system.

   For these reasons, we reject the plaintiffs' Commerce Clause challenge to Art. 81, § 423(a).

   II. Privileges and Immunities Clause

   The plaintiffs also assert that § 423(a) [***24] violates the Privileges and Immunities Clause of Art.  IV of the United States Constitution. n7£ It is well established that the Privileges and Immunities Clause is inapplicable to corporations.  By its terms, it applies only to "citizens," and corporations are not citizens within the meaning of the clause.  Western & Southern L.I. Co. v. Bd. of Equalization, 451 U.S. 648, 656, 101 S.Ct. 2070, 2076, 68 L.Ed.2d 514 (1981); Hemphill v. Orloff, 277 U.S. 537, 48 S.Ct. 577, 72 L.Ed. 978 (1928).

n7 "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."£ U.S. Const., Art. IV, § 2, cl. 1.

   All of the named plaintiffs are corporations.  As such, they have no standing to challenge § 423(a) under the Privileges and Immunities Clause of Art. IV.

   III. Equal Protection Clause

   The plaintiffs next challenge Art. 81, § 423(a), under the Equal Protection Clause of the Fourteenth Amendment.  They argue that, because "non-Maryland based interstate motor[***25] carriers [allegedly] shoulder a vastly disproportionate share of this financial burden, . . . the registration fee creates a wholly unreasonable and impermissible classification based on in-state versus out-of-state carriers."£ (Petitioners' brief, pp. 36-38.)£ The plaintiffs' equal protection argument, therefore, is the same as their argument that § 423(a) discriminates against interstate commerce. For the reasons previously set forth, we hold that the statute does not discriminate against out of state carriers. n8

n8 The only classification made by Art. 81, § 423(a), is between commercial motor carriers and non-commercial vehicles.  Such distinction clearly has a rational basis.  As previously mentioned, a commissioned study revealed that commercial trucks contributed the most to the wear and tear of the highways, yet contributed the least to their upkeep.

   [*388] IV. Supremacy Clause

   The plaintiffs' final argument is that an Interstate Commerce Commission regulation prohibits a state[***26] registration tax exceeding ten dollars per year.

   The regulation upon which plaintiffs rely, 49 C.F.R. § 1023.13, concerns state requirements for registration of I.C.C. operating permits.  It provides:
 
"The application for the registration of such operating authority shall be filed in duplicate with the Commission of such State.  The original, to which the copy of the I.C.C. operating authority shall be [**56] attached, shall be retained by the State Commission . . . .  The application shall be accompanied by the fee, if any, prescribed by the law of such State: Provided, however, That such fee shall not exceed $25 for an application filed by a motor carrier who has not previously filed a currently effective application for registration of I.C.C. operating authority with the Commission of such State: And provided further, That such fee shall not exceed $10 for an application filed by a motor carrier who has previously filed a currently effective application for the registration of I.C.C. operating authority with such Commission."£ [32 FR 20016, Dec. 20, 1967, as amended at 35 FR 2524, Feb. 4, 1970] (Emphasis in original.)
 
This regulation relates solely[***27] to state statutes that require interstate carriers to register their I.C.C. operating permits in order to conduct operations within the state.  49 C.F.R. § 1023.11 (1983).  Maryland has no such requirement, and the above-quoted regulation has no application to Maryland.  Art. 81, § 423(a), has nothing to do with the filing of a current record of I.C.C. operating authority or an I.C.C. permit.

   Furthermore, other provisions expressly exempt state highway user taxes from 49 C.F.R. § 1023.13.  49 U.S.C. [*389] § 10521(b)(4) states that the federal motor carrier subtitle does not "affect the taxation power of a state over a motor carrier." n9£ The exception also appears at 49 C.F.R. § 1023.42, which provides that "[n]othing in these standard shall be construed to affect State requirements as to the external identification of vehicles to indicate the payment of a State tax or fee imposed for revenue purposes . . . ."

n9 There are two statutory exceptions to this provision, neither of which is relevant to this discussion.  49 U.S.C. §§ 11503 a, 11504(b).  The legislative history behind the first of these exceptions sheds light on § 10521(b)(4), as follows:
 
"The provisions of this section do not apply to that body of taxes known as highway user taxes that are levied on owners or operators of motor vehicles because of their use of public highways. These highway user taxes include, but are not limited to, motor fuel taxes, registration fees, driver licenses, vehicle user taxes, ton-mile taxes, and other motor vehicle related taxes; the proceeds of these taxes, for the most part, are expended through a State highway fund or otherwise earmarked for highway construction, maintenance, or operation."
H.R.Rep. No. 96-1069, 96th Cong., 2d Sess., p. 45, U.S.Code Cong. & Admin.News 1980, p. 2283, 2327.

[***28]

   Consequently, the Interstate Commerce Commission regulations do not preempt Art. 81, § 423(a).

   JUDGMENT AFFIRMED.

   PETITIONERS TO PAY COSTS. 

Robert Dudley OSBURN, Jr. v. STATE of Maryland 
No. 127, September Term, 1983
 
Court of Appeals of Maryland
 
301 Md. 250; 482 A.2d 905; 1984 Md. LEXIS 368

 October  25, 1984

   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.  APPELLANT TO PAY COSTS.

CORE TERMS:  joinder, admissible, severance, Maryland Rule, oral argument, inadmissible evidence, evidence offered, law firm, mutually, separate trial, prejudicial, involvement, appearance, prejudiced, withdrawn, discovery, charging, unaware

COUNSEL: Bernard P. Kole of Churchville, Maryland, for appellant.

   Gary P. Jordon and Bruce C. Spizler, Assistant Attorneys General, Baltimore, Maryland (Stephen H. Sachs, Attorney General, Baltimore, Maryland, on the brief), for appellee.

JUDGES: Murphy, C.J., Eldridge, Cole, Davidson, * Rodowsky and Couch, JJ., and James C. Morton, Jr., Associate Judge of the Court of Special Appeals (retired), specially assigned.

* Davidson, J., participated in the hearing and in the conference of the case in regard to its decision but because of illness did not take part in the adoption of the opinion.

OPINIONBY: COUCH

OPINION: [*251] [**905] By this appeal Robert Dudley Osburn, Jr. seeks to reverse his conviction by the Circuit Court for Anne Arundel County of conspiracy to violate the Maryland income tax laws and three counts of violation of those laws.  We issued [*252] a writ of certiorari prior to consideration of the appeal by the Court of Special Appeals, and finding no error, affirm.

   [**906] [***2] As this appeal is a companion to that of Winters v. State, 301 Md. 214, 482 A.2d 886 (1984), and as much of the factual background was set forth in that opinion, we shall herein set out only those facts as are necessary for an understanding of our discussion of the issues raised by Osburn. Suffice it to say that the charges brought against Osburn stemmed from an investigation into allegations made by a former secretary to the law firm of Osburn and Winters that they were not reporting cash fees received as part of the firm's income and thus evading the payment of personal income tax.

   Osburn raises seven issues, one of which he has formally withdrawn, some of which are identical to those raised by Winters, and some peculiar to his appeal and not shared by Winters.

   (1)

   First, Osburn has withdrawn his claim of error for failure to grant him a new trial.

   (2)

   As to the following issues, which are identical to those raised and considered in the Winters' appeal, what we said there is dispositive here.
 
1. Claim of error for failure to grant his motion to dismiss Count One, the conspiracy count.
 
2. Claim of error for failure to dismiss Counts Four, Five and Seven (identical [***3]to Counts Two, Three and Six in the Winters indictment).
 
3. Claim of error in allowing the state to improperly cross-examine certain character witnesses produced by Winters.

   (3)

   The Motion to Suppress

   Osburn contends that the trial court erred in not suppressing the twenty-two yellow sheets of paper seized at [*253] the home of Winters; the state argues Osburn has no standing to raise this issue.  At oral argument Osburn's counsel also raised doubt as to Osburn's standing.  We need not address the standing issue because, even assuming standing, we find no error in the trial court's ruling for the reasons set forth in Winters.

   (4)

   Osburn also contends that the state erred in arguing to the jury during closing argument that the twenty-three state witnesses, identified as clients of the law firm, were a random sample of all the clients of the firm. n1£ The record reveals that Osburn did not object to the state's argument, although Winters did, and this argument ceased.  No relief was sought by Osburn and thus, under Maryland Rule 885, the issue has not been preserved for review.

n1 At oral argument appellant conceded the prosecutor's remark did not constitute reversible error.

[***4]

   (5)

   Osburn's final contention is that the trial court erred in denying his motion for relief from prejudicial joinder of defendants and charges which was filed on the first day of trial, despite the requirements of Maryland Rule 736 n2 (now [*254]Rule 4-252).  Nevertheless, the trial judge entertained the motion and heard oral argument before [**907] denying it without comment.  The argument of Osburn, in essence, was that the majority of the evidence to support the charges was actually directed at Winters in that nearly all of the unreported cash fees were generated by Winters and not Osburn; that he was unaware of the extent of Winters' involvement with controlled dangerous substances; that his defense was antagonistic to Winters; and that the complexity of the documentary evidence would prevent a jury from distinguishing "the activities in one year alleged to have been committed by the appellant (Osburn) from the activities alleged to have occurred in separate years."£ We perceive no merit to this contention.

n2 Maryland Rule 736 provides in pertinent part:

   "a. Mandatory Motions.

   A motion asserting one of the following matters shall be filed in conformity with this Rule.  Any such matter not raised in accordance with this Rule is waived, unless the court, for good cause shown, orders otherwise:

   * * *

   5. A motion for joint or separate trial of defendants or offenses.

   b. Time for Filing Mandatory Motions.

   A motion filed pursuant to section a of this Rule shall be filed within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 723 (Appearance -- Provision for or Waiver of Counsel), except when discovery is furnished on an issue which is the subject of the motion, then the motion may be filed within five days after the discovery is furnished."

[***5]

   Maryland Rule 745 c (now 4-253(c)) provides:

   "If it appears that any party will be prejudiced by the joinder for trial of counts, charging documents or defendants, the court may, upon its own motion or the motion of any party, order separate trials of counts, charging documents or defendants, or grant any other relief justice requires."
 
In McKnight v. State, 280 Md. 604, 375 A.2d 551 (1977), we established the general test for the joinder/severance of multiple defendants or multiple charges against one defendant; the evidence offered must be mutually admissible as to each defendant or as to each charge in order for joinder to be proper. See also Graves v. State, 298 Md. 542, 471 A.2d 701 (1984).

   Initially we note that the evidence offered by the state was mutually admissible against both Winters and Osburn.  Thus the fact that this evidence may have been prejudicial to Osburn does not dictate that he was entitled to be tried separately from Winters.  As Judge Liss said for the court in Sye v. State , 55 Md.App. 356, 362, 468 A.2d 641, 644 (1983), "[p]rejudice as a term of art means damage from [*255] inadmissible evidence, not damage from admissible [***6]evidence."

   Osburn's complaint that most of the cash fees were those earned by Winters is not relevant since the evidence showed that the cash was divided evenly between Winters and Osburn; what is relevant was the evidence that demonstrated that the cash income did not find its way to the total income being reported by either Winters or Osburn.  We fail to see any relevancy to Osburn's contention that he was unaware of the extent of Winters' drug involvement. Nor do we see any merit to Osburn's argument that he was prejudiced by being prevented, in the joint trial, from bringing out the use of cash fees for drug purposes by his codefendant; what this type of evidence has to do with the charges here escapes us.

   Finally, as to the jury confusion due to the complexity of the evidence, we again see no merit.  In a separate trial much of the same evidence would have been admissible and thus damaging.  As to the number of years of alleged illegal activity, we observe that only two years were involved, and we fail to see how this would lead a jury to conclude that if Osburn was in violation as to one year he must be guilty as to the second.  Thus, we also believe this contention to be[***7] meritless.

   In McKnight, we stated that the decision whether to grant or deny a motion for severance is committed to the discretion of the trial judge.  Under the circumstances presented by the instant case the denial of the motion for severance was not an abuse of discretion; there was no inadmissible evidence; appellant was not denied a fair trial.

   In short, we conclude there was no error in the trial.

   JUDGMENT AFFIRMED.

   APPELLANT TO PAY COSTS. 

Richard Mark WINTERS v. STATE of Maryland 
No. 126, September Term, 1983
 
Court of Appeals of Maryland
 
301 Md. 214; 482 A.2d 886; 1984 Md. LEXIS 361

 October  24, 1984

   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.  APPELLANT TO PAY THE COSTS.

CORE TERMS:  search warrant, indictment, probable cause, conspiracy, search and seizure, issuance, cross-examination, Fourth Amendment, prejudicial error, sheets, penal interest, declaration, veracity, issuing, affiant, yellow, reliability, conclusory, income tax, deliberation, seized, determination of probable cause, indicia of reliability, conspiracy to violate, character witness, credibility, totality, false statement, set forth, bad act

COUNSEL: Joseph F. Murphy, Jr., Towson, Maryland (White & Murphy, Towson, Maryland, on the brief), for appellant.

   Gary P. Jordan and Bruce C. Spizler, Assistant Attorneys General, Baltimore, Maryland (Stephen H. Sachs, Attorney General, Baltimore, Maryland, on the brief), for appellee.

JUDGES: Murphy, C.J., Eldridge, Cole, Davidson, * Rodowsky and Couch, JJ., and James C. Morton, Jr., Associate Judge of the Court of Special Appeals (retired), specially assigned.

* Davidson, J., participated in the hearing and in the conference of the case in regard to its decision, but because of illness did not take part in the adoption of the opinion.

OPINIONBY: COUCH

OPINION: [*219] [**888] Richard Winters was tried before a jury, in the Circuit Court for Anne Arundel County, and convicted of conspiracy to violate the Maryland tax law, and filing fraudulent State income tax returns.  The defendant took an appeal to the Court of Special Appeals.  Thereafter, this Court, on its own motion, issued a writ[***2] of certiorari prior to a decision by the intermediate appellate court.

   The issues we are asked to consider are:
 
"1) Whether the trial court committed prejudicial error by denying Appellant's Motion for Suppression of Evidence seized from his home.
 
2) Whether the trial court committed prejudicial error by permitting improper cross-examination of Appellant's character witnesses.
 
3) Whether the trial court committed prejudicial error by denying Appellant's Motion for Dismissal of the Conspiracy Count (Count I) of the Indictment.
 
4) Whether the trial court committed prejudicial error by denying Appellant's Motion to Dismiss the Substantive Counts of the Indictment.
 
5) Whether the trial court committed prejudicial error by denying Appellant's Motion for a Judgment of Acquittal [**889] on the Substantive Counts of the Indictment.
 
[*220] 6) Whether the Court committed prejudicial error by incorrectly answering the jury's question directed to the court concerning the dates set forth in the conspiracy count."
 
We shall answer these questions seriatim.

   Facts

   In setting forth the facts of this case we shall merely provide the factual framework[***3] that led to the indictment and subsequent trial of appellant, Richard Winters.  Thereafter we shall provide the necessary factual predicate as each specific issue is addressed.

   The Attorney General's office, in conjunction with the Maryland State Police was conducting an investigation into various forms of criminality in Frederick County, Maryland.  During the course of that investigation it was believed that certain individuals, including appellant, were involved in illegal drug activities.  This information led to a cooperative investigative effort with the United States Drug Enforcement Administration (hereinafter referred to as "DEA").

   While appellant was under investigation for drug involvement, the authorities received information concerning alleged tax violations on the part of the partners in the Osburn and Winters law firm.  This information was initially supplied by Winters' former secretary and girlfriend, Edith Eader.

   Pursuant to information acquired during the drug investigation a federal search and seizure warrant was issued for appellant's residence.  This warrant was executed on September 23, 1982.  Detective Sergeant Thomas H. Carr, a Maryland State Police officer[***4] assigned to the Attorney General's office, Criminal Investigations Division, who had been involved in the joint narcotics investigation from its inception, assisted the federal agents in the execution of the warrant.  Carr was also on the premises to serve a subpoena in regard to the tax investigation.
 
   [*221] During the search Carr discovered twenty-two sheets of lined yellow paper, approximately 8 1/2" X 14", which contained a listing of names, dates, and dollar amounts.  Carr examined the sheets to see if they were papers relating to the transportation, ordering, purchase or distribution of controlled dangerous substances; records, notes and other papers relating to the drug investigation were among the items listed on the federal warrant as property to be seized. Robert Osburn, appellant's law partner, n1 was present during the search.  He identified the yellow sheets as an accounting of legal fees paid to the Osburn and Winters law firm.  Carr had previously been informed by Edie Eader that appellant kept such a list of income received from cash fees that were not reported on his income taxes; she had also shown Carr photo copies of these lists.  The information supplied[***5] by Eader coupled with Osburn's statement led Carr to recognize that these sheets did not pertain to the drug investigation, but that they were related to the state tax investigation.

n1 Mr. Osburn was a co-defendant in this case.  See Osburn v. State, 301 Md. 250, 482 A.2d 905 (1984).

   Carr then telephoned the Attorney General's office and an application for a search and seizure warrant was prepared for the sheets. The federal search and seizure warrant, an affidavit, and an application for a state search and seizure warrant were submitted to Judge Stepler, District Court of Maryland sitting in Frederick County.  The affidavit, by Carr, set forth his reasons for believing the yellow sheets were evidence relating to the commission of criminal violations of Maryland State Income Tax laws.  Moreover, the affidavit set forth his authority to be on the property where he discovered the yellow sheets by reciting the circumstances of the joint [**890] drug investigation and referencing the DEA search and seizure[***6] warrant for Winters' residence. A copy of the federal search warrant was attached to the state affidavit. However, the affidavit which supported the issuance of the federal warrant was not [*222] attached; the federal affidavit was under seal at the time the state warrant was applied for.  Judge Stepler signed the state warrant and the twenty-two yellow sheets were seized from Winters' home on September 23, 1982.

   Prior to trial Winters unsuccessfully sought dismissal of the indictment and suppression of the evidence seized from his residence.

   I

   Appellant initially asserts that the trial court committed prejudicial error by denying the motion to suppress evidence seized from his home.  He attempts to support this position by attacking the validity of both the state and federal search and seizure warrants.

   (a)

   State Warrant
 
   Appellant contends that the search warrant signed by Judge Stepler should not have been issued.  This is so, he argues, because the state warrant was based upon an affidavit containing information acquired by applicant, Detective Carr, while participating in the execution of the federal warrant, and that the affidavit upon which the federal warrant[***7] was based was not presented to Judge Stepler.  Appellant argues under the authority of Brooks v. State, 13 Md.App. 151, 282 A.2d 516 (1971), cert. denied, 264 Md. 746, 749, 750 (1972), that where a search warrant is sought based on observations during the execution of a preceding warrant, the issuing judge must review the affidavit of the first warrant to determine whether probable cause justified the initial intrusion.  We think appellant reads Brooks too broadly.

   In Brooks, there were two raids of the same premises, four days apart.  The first raid was undertaken pursuant to a search and seizure warrant.  While on the premises the officer observed but did not seize certain property which subsequent investigation revealed to be stolen goods.  The officer thereafter applied for a second search warrant based [*223] on his observations.  In the affidavit for the second warrant the officer asserted that the first warrant had been issued, but a copy of the first warrant and the application therefor were not attached to the second application.

   The Court of Special Appeals held that the appellants had no standing to raise Fourth Amendment claims.  Brooks, 13 Md.App. [***8] at 157, 282 A.2d at 520. However, in dicta the court stated that the conclusory statement by the affiant in the affidavit for the second warrant (as to the existence of the first warrant) rendered the second warrant defective.  This was so, the court explained, because "conclusory statements without underlying facts by the affiant that probable cause exists, are not adequate to support the issuance of a search warrant;" and "probable cause must be determined by the magistrate, based on the facts presented to him in the affidavit."£ Brooks, 13 Md.App. at 154, 282 A.2d at 518-19. The court was thus stating the basic concepts of Fourth Amendment law -- the principles that ensure that the guarantees of the Fourth Amendment are protected.

   The Fourth Amendment to the United States Constitution guarantees the "right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures."£ The protection of the Fourth Amendment consists in requiring that a search warrant be issued only after a neutral and detached magistrate determines that probable cause exists "therefor from facts or circumstances presented to him under oath or affirmation," [***9] in order to justify an invasion of privacy.  Nathanson v. United States, 290 U.S. 41, 47, 54 S.Ct. 11, 13, 78 L.Ed. 159, 162 (1933). See also State v. Edwards, 266 Md. 515, 295 A.2d [**891] 465 (1972) (need underlying circumstances supporting affiant's conclusions); Henderson v. State, 243 Md. 342, 221 A.2d 76 (1966) (finding of probable cause to be made from the allegations of the application for the warrant, cannot be purely conclusory); Brooks v. State, supra (conclusory statements without underlying facts are not adequate).

   [*224] Judge Stepler, in this instance, had the first warrant presented to her.  Given the courts' preference for searches pursuant to a warrant, and the deference that is to be accorded an issuing magistrate's determination of probable cause to issue a warrant, see Massachusetts v. Upton,    U.S.   , 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984); Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), Judge Stepler could reasonably rely on the validity of the federal warrant together with other facts presented to her.  Therefore, [***10]unlike the situation in Brooks, Judge Stepler did not merely "'accept the affiant's conclusions and thus [did not] "serve merely as the rubber stamp for the police."£ Aguilar v. Texas, 378 U.S. 108, 112 [, 84 S.Ct. 1509, 1512, 12 L.Ed.2d 723, 727 (1964)].'"£ Brooks, 13 Md.App. at 155, 282 A.2d at 519 [quoting Grimm v. State, 7 Md.App. 491, 493, 256 A.2d 333, 334 (1969)].

   Appellant now asks this Court to expand his reading of the dicta in Brooks to require the issuing magistrate not only to make an independent determination of probable cause for the issuance of the second warrant, but also to determine if probable cause existed for the issuance of the first warrant, when that warrant is attached to and is an underlying fact in determining probable cause to issue the subsequent warrant.  We decline to do so because we do not think that Brooks requires the magistrate who issues the second warrant to determine if probable cause existed to issue the first warrant; if it did it would be contrary to law. 

   What appellant advocates as the duty of the warrant-issuing judge interfuses two distinct principles of law -- the warrant requirement of the Fourth Amendment, [***11] and the judicially created exclusionary rule.  In our system of justice, these two principles take effect at different stages in the proceedings; appellant's contention can be more appropriately addressed at the later stage.  Therefore, we find no error was committed by Judge Stepler.  She issued the [*225] state warrant only after making an independent determination of probable cause based on facts and circumstances presented to her including the issuance of the federal warrant; thus, appellant's Fourth Amendment privacy expectations were protected.

   Appellant's only attack on the issuing judge's determination of probable cause in this case rests on her failure to determine probable cause for the issuance of the federal search warrant. We hold that the issuing state judge had no obligation to determine the existence of probable cause for the issuance of the federal warrant.  Therefore, issuing the state warrant based on probable cause contained in the state affidavit was not improper.

   A motion to suppress evidence obtained as a result of the state search warrant was heard and denied by the trial court.  At that hearing appellant asserted the aforesaid issue as well as two issues[***12] directly related to the issuance of the federal search warrant. The trial court reviewed the affidavit upon which the federal warrant was issued and found that there was "clear probable cause to issue the federal warrant."

   (b)

   Federal Warrant

   Appellant advances two reasons for contending that the federal warrant was invalid.  First, he attacks the adequacy of the affidavit upon which the federal warrant was based.  Second, he questions the propriety of Detective Carr's participation in the execution of the federal warrant.  He contends that if the federal warrant is invalid [**892] for either of these reasons, evidence derived from the federal search is tainted and its existence may not be used as a valid basis for establishing probable cause in the application for the state search and seizure warrant under our holdings in Carter and Everhart.

   (i)

   As the initial basis for this contention appellant asserts that the affidavit in support of the federal warrant contained [*226] a false statement of a material fact requiring redaction of so much information that the remaining allegations did not establish probable cause for the search.

   This contention is predicated[***13] on a statement made in the federal affidavit in reference to the second confidential informant.  Source number two was identified at the suppression hearing by Detective Carr as Edith Eader.  She was alleged by the federal affiant, Special Agent William L. Athas, to be a reliable source since her admissions were a "Declaration Against Penal Interest."£ However, Detective Carr testified at that hearing that Eader had received immunity from federal and state authorities before she provided the information related in the affidavit.

   All parties agree that Eader's statements could not have been against her penal interest if she had previously received immunity.  Additionally, there is agreement that the "assertion" of Athas may not be used to bolster the veracity of Eader.  However, appellee asserts that the characterization of the use of the term declaration against penal interest as a false statement of a material fact is unduly harsh; and, further, that when judged under the standards of probable cause of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the remaining information in the affidavit is more than adequate to support the issuance of the federal[***14] warrant in this case.  We agree.

   Technically, Edith Eader did not make a declaration against penal interest since she had received complete immunity from prosecution prior to providing information to the authorities.  However, we cannot agree with appellant's contention that "her information would have been totally useless unless it was falsely alleged to constitute a declaration against penal interest."£ Appellant would have the Court excise the entire statement under authority of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). We think the appropriate remedy is to discount that phrase that tends to bolster the credibility of Eader, [*227] and then evaluate the affidavit without considering her statement as a declaration against penal interest.

   Appellant's basic argument is that if the information obtained from Eader is not a declaration against penal interest, then the veracity and reliability of this source is not demonstrated in the affidavit; the foundation for this reasoning are the principles set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, [***15] 21 L.Ed.2d 637 (1969). However, appellant's singular reliance on Aguilar and Spinelli is unfounded in view of the Supreme Court's decision in Gates.

   Gates replaced the rigid technical analysis of the reliability of informant data in Aguilar and Spinelli with a more flexible approach.  Massachusetts v. Upton,    U.S.   , 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984); see also Potts v. Maryland, 300 Md. 567, 479 A.2d 1335 (1984). (Gates decision applied to pre-Gates search warrant).  "Veracity," "reliability," and "basis of knowledge" are still considered relevant inquiries.  Gates, 462 U.S. at    , 103 S.Ct. at 2329, 76 L.Ed.2d at 545.  However, rather than give them independent status, they are to be considered in the "totality of circumstances analysis that traditionally has guided probable cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability."£ Id.

   In Gates, the Court illustrates the application of the totality of the circumstances [**893] assessment.  One indicia of reliability is particularly[***16] relevant to our inquiry in the case sub judice:
 
"[E]ven if we entertain some doubt as to an informant's motives, his explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed first-hand, entitles his tip to greater weight than might otherwise be the case."
 
[*228] Gates, 462 U.S. at    , 103 S.Ct. at 2329-30, 76 L.Ed.2d at 545.

   In this instance Eader provided a significant amount of detailed information in the affidavit, most of which was observed first-hand.  Moreover, much of this information was independently corroborated by the law enforcement authorities during the drug investigation.  The totality of the circumstances would indicate that the confidential informant in question was giving credible information. Moreover, Agent Athas was an experienced drug investigator, assigned to the DEA. His interpretation of all this information led him to assert in the affidavit that there was probable cause to believe that controlled dangerous substances and records related to drug transactions would be found at appellant's home; considerable credit can be given to the expertise of law enforcement officers. [***17]Gates, 462 U.S. at    , 103 S.Ct. at 2328, 76 L.Ed.2d at 544; Gatewood v. State, 244 Md. 609, 616, 224 A.2d 677, 682 (1966); Henderson v. State, 243 Md. 342, 344, 221 A.2d 76, 77 (1966).

   On the basis of the facts and circumstances contained in the affidavit a magistrate issued the search warrant. The facts relied upon "are sufficient if they are such as to warrant a prudent and cautious man in believing the offense has been committed."£ Lucich v. State, 194 Md. 511, 514, 71 A.2d 432, 434 (1950); Dean v. State, 205 Md. 274, 107 A.2d 88 (1954); Fleming v. State, 201 Md. 145, 92 A.2d 747 (1952); Smith v. State, 191 Md. 329, 62 A.2d 287 (1948), cert. denied, 336 U.S. 925, 69 S.Ct. 656, 93 L.Ed. 1087 (1949). This is in accord with the Fourth Amendment's expressed preference for "searches conducted pursuant to a warrant."£ Gates, 462 U.S. at    , 103 S.Ct. at 2331, 76 L.Ed.2d at 547; United States v. Leon, supra; United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

   The traditional standard of review by an appellate court has been reaffirmed by the United States Supreme [*229] Court to reflect the preference [***18]for the warrant process.  As "long as the magistrate had a 'substantial basis for . . . conclud[ing]' that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more."£ Gates, 462 U.S. at    , 103 S.Ct. at 2331, 76 L.Ed.2d at 547 [quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697, 708 (1960)]. Moreover the Court also stated in Gates:
 
"A magistrate's 'determination of probable cause should be paid great deference by reviewing courts.'£ Spinelli, supra, 393 U.S. at 419, 89 S.Ct. at 590."
 
Gates, 462 U.S. at    , 103 S.Ct. at 2331, 76 L.Ed.2d at 547.

   After carefully examining the record in this case and reviewing the federal affidavit we conclude that there was sufficient indicia of reliability for Eader's information; the federal search and seizure warrant issued was supported by information sufficient to establish probable cause.

   (ii)

   Appellant's second basis for contending that the federal warrant is invalid pertains to Detective Carr's participation in the execution of the federal warrant.

   The federal warrant authorized the initial search of appellant's home.  It stated that[***19] the warrant was to be executed by "Special Agent William L. Athas or any other agent of the Drug Enforcement Administration."£ Because Carr, a Maryland State Policeman, was not listed as a person to whom the federal warrant was directed, appellant contends he was illegally on the premises when he observed evidence which was later used as a basis for establishing probable cause in the application for the state search [**894] and seizure warrant. Appellant cites no authority to support this contention.  Case law, on the other hand, persuades us that this argument lacks merit.

   The statute controlling the issuance of federal search warrants is 18 U.S.C. § 3105 (1982).  It reads as follows:

   "A search warrant may in all cases be served by any of the officers mentioned in its direction or by an officer [*230] authorized by law to serve such warrant, but by no other person, except in aid of the officer on his requiring it, he being present and acting in its execution."
 
Id.£ In construing this statute the Fifth Circuit Court of Appeals stated:
 
"This statute does not confer any substantive authority to execute a search warrant, but was meant to enlarge the[***20] common law rule which required that a search warrant be directed only to a particular person and be executed only by that person.  Fed.R.Crim.P. 41(c) and other empowering provisions of the United States Code provide the substantive authority to conduct a federal search.  See 18 U.S.C.A. § 3106; United States v. Sigal, 341 F.2d 837, 843 n. 13 (3d Cir.) and cases cited, cert. denied, 382 U.S. 811, 86 S.Ct. 23, 15 L.Ed.2d 60 (1965). Thus, under federal law a search warrant may be executed by (1) the person to whom the warrant is directed; (2) any officer authorized by law to execute search warrants; or (3) some other person aiding a person under (1) or (2) who is present and acting in the execution of the warrant."
 
United States v. Martin, 600 F.2d 1175, 1181-82 (5th Cir. 1979).

   The record in this instance reveals that the Criminal Investigations Division of the Attorney General's office and the Federal Drug Enforcement Administration were jointly investigating narcotics trafficking in Frederick County.  Carr, as well as other Maryland State Policemen, participated with the federal law enforcement officers in this cooperative law enforcement venture.  After [***21]sufficient evidence was obtained a federal search warrant was issued. The search warrant was served by the person to whom it was directed, Special Agent Athas.  Members of the Maryland State Police, the Federal Bureau of Investigation, and the Drug Enforcement Administration assisted in the search.

   Under these facts Detective Carr was authorized by 18 U.S.C. § 3105 to assist in the search.  He was clearly a [*231] person aiding an officer authorized by law to execute the search warrant, who was present and acting in the execution of the warrant.  Petition of Becker, 515 F.Supp. 1193, 1196 (D.Kan.1981); accord United States v. Cox, 462 F.2d 1293 (8th Cir.1972), cert. denied, 417 U.S. 918, 94 S.Ct. 2623, 41 L.Ed.2d 223 (1974); Watson v. Commonwealth, 433 S.W.2d 884 (Ky.1968). Detective Carr was therefore legally on the premises when he observed the evidence appellant sought to have suppressed.

   In summary we find that there was no primary illegality in the federal search.  It was, therefore, proper to use the evidence Carr discovered during the search to form the basis for the existence of probable cause in the state warrant.  Accordingly, there was no error in[***22] denying the motion to suppress.

   II

   Winters next contends that the trial judge erred by permitting improper cross-examination of his character witnesses: Shankle, a Frederick, Maryland police officer; Bower, an attorney in Frederick County; and Stine, Captain of the Frederick City Police Department.

   On direct examination, each of these witnesses testified that Winters had a good reputation for honesty and integrity.  Shankle and Bower were asked, on cross-examination, whether they had heard any information which caused them to suspect Winters' reputation.  Shankle, over objection, testified that he had "read newspaper articles in the past several weeks in the paper."£ Bower responded in the negative [**895] to the question.  Stine was asked on cross-examination whether, as a result of search warrants executed in 1982, he had received information which made him suspicious about Winters' reputation for honesty and integrity.  Stine answered in the affirmative.

   Winters bottoms his argument on the principle "that accusations of crime or misconduct, as distinguished from convictions, may not be used to impeach the credibility of a [*232] character witness," relying on State [***23]  v. Cox, 298 Md. 173, 468 A.2d 319 (1983), and Taylor v. State, 278 Md. 150, 360 A.2d 430 (1976). The state, on the other hand, argues that "the questions posed to the character witnesses were not directed to information concerning prior bad acts of appellant [Winters], but instead, were an effort to probe the veracity of the opinions offered and the witnesses' basis of knowledge in formulating those opinions."

   In our view the state's position is correct.  The state was seeking to test the witnesses' knowledge; it was not an inquiry specifically directed to a prior bad act. In this sense, then, both Taylor and Cox are factually inapposite.

   In Taylor, two witnesses were asked if they knew of two prior convictions of the defendant.  It appeared that the defendant was not represented by counsel at either of the prior trials.  There we indicated that it would be just as improper to cross-examine a character witness concerning a constitutionally infirm conviction as to cross-examine the defendant himself.  Taylor, 278 Md. at 155-56, 360 A.2d at 434.

   In Cox, during cross-examination of the prosecutrix in a rape trial, the defense proffered that she had made[***24] a similar accusation against a former boyfriend, but later recanted and admitted she had lied.  The trial judge refused to allow this to be developed on cross-examination. In affirming the Court of Special Appeals, which had reversed the defendant's conviction because of prejudicial error by this refusal, we stated in part:

   "In the instant case we are not concerned with the impeachment of a defendant or a character witness. The issue we must resolve is rather straightforward: to what extent may the testimony of a prosecuting witness in a rape case be impeached on cross-examination? We have already stated the general rule that any witness may be cross-examined on matters and facts affecting his credibility, so long as such facts are not immaterial or irrelevant to the issue being tried."
 
[*233] Cox, 298 Md. at 180-81, 468 A.2d at 322. Thus, Cox simply was not concerned with the issue presented here.

   We observe that the questions asked in the case sub judice concerned the witnesses' opinions of Winters' character traits for honesty and integrity, as well as his reputation in the community for these same traits.  No reference was made during cross-examination[***25] to any bad act so far as Shankle and Bower were concerned.  The question to Stine, that elicited an answer which did reveal his receipt of information as a result of a search warrant that was executed, could be viewed as inferring that Winters had been engaged in a bad act. However, the question itself was an effort to probe the veracity of the opinions offered and the witnesses' basis of knowledge in formulating those opinions.

   We see no abuse of discretion by the trial judge in allowing the cross-examination complained of.

   III

   Because Count One of the indictment charged Winters and Osborn in the short form language authorized by Maryland Code (1957, 1982 Repl.Vol.), Article 27, § 40, n2 Winters moved to dismiss that count, [**896] which motion the trial court denied.  Winters assigns error to this denial.  He [*234] argues that although the language of Count One stated the conspiracy, it did not properly allege the object of the conspiracy, thus, it is argued, the count was defective.  Appellant contends that since the income tax laws can be violated in a variety of ways, the indictment should set out the particular means by which he and Osborn conspired together to[***26] violate those laws.  We disagree. 

n2 Count One of the indictment reads:

    "The Grand Jurors of the State of Maryland, for the body of Anne Arundel County, do on their oath present that ROBERT DUDLEY OSBORN, JR. and RICHARD MARK WINTERS, between January 1, 1979 and April 15, 1982, in the County aforesaid, did unlawfully conspire together to violate the Maryland Income Tax Laws, Article 81, § 279 et seq., Annotated Code of Maryland, against the peace, government and dignity of the State.
 
Art. 27, § 40, Annotated Code of Maryland:

   "In any indictment or warrant for the crime of conspiracy, it shall be sufficient to use a formula substantially to the following effect: 'That A-B and C-D on the . . . day of . . ., 19. . ., at the County (City) aforesaid unlawfully conspired together to murder X-Y (or other conspiracy here stating briefly the object of the conspiracy), against the peace, government and dignity of the State.'£ (An.Code, 1951, § 48; 1945, ch. 87.)"

   It is well settled in Maryland that[***27] so long as the object of the conspiracy is set forth in the indictment there is no necessity to also set forth the means by which the conspiracy was intended to be accomplished.  See Pearlman v. State, 232 Md. 251, 192 A.2d 767 (1963) (conspiracy to cheat and defraud customers by wrongful and indirect means and false pretenses, etc. sufficient), cert. denied, 376 U.S. 943, 84 S.Ct. 797, 11 L.Ed.2d 767 (1964); Piracci v. State, 207 Md. 499, 115 A.2d 262 (1955) (conspiracy to defraud City of Baltimore -- means to accomplish object of conspiracy need not be set out); Scarlett v. State, 201 Md. 310, 93 A.2d 753 (1953) (conspiracy to violate lottery laws sufficient to charge a crime), cert. denied, 345 U.S. 955, 73 S.Ct. 937, 97 L.Ed. 1377 (1953); Quaglione v. State, 15 Md.App. 571, 292 A.2d 785 (1972) (conspiracy to violate the narcotic laws of the state held sufficient). All of these cases demonstrate a consistent holding on the issue dating back to State v. Buchanan, 5 H. & J. 317 (1821), where our predecessors first held that in a prosecution for conspiracy, it is sufficient to state in the indictment the conspiracy and the object of it; the means by which[***28] it was intended to be accomplished need not be set forth.  We see no need to depart from this well settled law.

   IV

   In Count Two of the indictment Winters was charged with making a fraudulent 1979 Maryland State personal income tax return with the intent to evade and defeat the payment of taxes.  Further allegations set forth the particular means utilized by Winters.  Count Three of the indictment [*235] was similar to Count Two except it covered his amended return for 1979.  Count Six again was similar except it covered the return made January, 1982.  In all three counts reference was made to "Making a Fraudulent Income Tax Return -- Article 81, § 302(a)."£ Prior to trial Winters moved to dismiss these counts on the ground that these counts did not furnish him with a description of the particular act he was alleged to have committed.  This is so, he argues, because he was not apprised of the appropriate "prescribed tax" involved and Art. 81, sec. 302(a), prohibits the making of a fraudulent return with the intent to defeat or evade the payment of "taxes prescribed by this subtitle."

    In our view all three counts pass muster.  Winters was informed of sufficient information in[***29] each count to be apprised of the exact nature of the specific tax return he allegedly unlawfully, wilfully, and fraudulently made, and the particular years involved (Maryland State personal income tax return). He was also told he did so with the intent to evade and defeat the payment of taxes.  Furthermore, the counts spelled out where on the return the false swearing occurred (on line 1 thereof).  In our view each count sufficiently apprised Winters of just what he was charged with, and thus the counts were not defective under the Ayre standard.

   [**897] V

   Appellant's next contention is disingenious.  Simply put, it is that the trial court erred in not granting his motion for judgment of acquittal as to Counts Two, Three, and Six, since he was required under Maryland law to place on his Maryland return as taxable income the same figures used on his federal return as adjusted gross income.  Winters contends "that the fact that the figure inserted on the federal return is a false statement is immaterial if Maryland law states that the taxpayer must use the figure inserted on his federal return."£ This is pure sophistry.  While it is true that Maryland taxpayers are required[***30] to report on [*236] their Maryland return the figure reported on their federal return as adjusted gross income, this does not authorize the reporting of a false figure on the federal return.  Obviously the Maryland law contemplates the truthful reporting of income on the federal return; otherwise a defrauding taxpayer, while subject to federal prosecution, would escape state prosecution, a result hardly contemplated by the legislature. We see no merit to this contention.

   VI

   Winters' final argument concerns the trial judge's answer to a question submitted to him by the jury after it had begun its deliberation. Count One of the indictment, as noted in footnote 2, alleged that Winters and Osborn conspired together to violate the Maryland income tax laws between January 1, 1979 and April 15, 1982.  During deliberations the jury, having a copy of the indictment given them by the court, sent a note to the trial judge inquiring: "Why is the date on the indictment from January 1, 1979 to April 15, 1982, if we are dealing with tax years 1979-1980?"£ The record reflects the following to have taken place:

   "COURT: I would anticipate calling the Jury back and tell them that this Indictment[***31] is not evidence in the case.  The only reason they have it is so that they could uh . . . know the number of uh . . . crime [sic] that each stand accused of and to not take it as any evidence in the case.

   MR. JORDON [Assistant Attorney General]: Your Honor, the State would also suggest that the dates are not an element of the crime.

   COURT: For their consideration the dates and the uh . . .  Indictment are just not a subject for their deliberations.

   MR. MURPHY [Counsel for Defendant Winters]: Well see, the problem is and it's an important one in the conspiracy case uh . . . let's say they find there is a conspiracy but they are unable to find that it existed beyond 1980.  Frankly uh . . . . these Defendants ought not to be found guilty of that conspiracy because it hasn't [*237] been brought within the statute of limitations.  So the . . . the dates are of some importance I think for that purpose.

   COURT: What is it that you want me to tell them?

   MR. MURPHY: Well, let me think for a minute. . .

   COURT: May I see that note?

   MR. MURPHY: Oh yes.

   MR. KOLE [Counsel for Defendant Osborn]: I'm sorry Your Honor.

   MR. MURPHY: I think the uh . . . one suggestion I have is that[***32] you state to them that uh . . . the State has chosen to replace the charges for those periods of times.

   MR. JORDON: I think Your Honor the dates are not elements of the crime of conspiracy.

   MR. KOLE: But they do define the time in which the crime occurred.

   COURT: I know that.  But why . . . why do they define the time which the crime occurred?

   MR. KOLE: Well they had to give some time frame.

   MR. MURPHY: For the purposes of the statute of limitations.

   COURT: Of course.  But that's a legal matter for the Court, not for the Jury. So I . . .  I . . . it's just not an element for [**898] their deliberations. I'm going to tell them to . . . pretty much as what I said . . . you can take your exceptions.

   MR. MURPHY: Alright.  My exception . . . you want me to take it now?

   COURT: Why don't you wait till I get it.  So you know exactly what I'm going to say.

   MR. MURPHY: Alright.  Okay.  But my request is that Your Honor instruct them that if they are satisfied or if they are not satisfied that the conspiracy continued until . . . into 1982 that they return a verdict of not guilty as to the conspiracy offense.

   MR. JORDON: But that's not an element of the crime.

   COURT: No, the[***33] Court will deny that request."

   [*238] Winters argues that the note from the jury indicated that the jury was concerned with whether the conspiracy continued to exist after the 1981 return had been filed; thus he was entitled to an instruction to the effect that if they found that the conspiracy did not so continue they would have to find for the defendant on that count. n3£ In our view the trial judge was correct under the circumstances present here.  As a general rule the question of limitations is a legal question to be answered by the court.  See Harig v. Johns-Manville Products Corp., 284 Md. 70, 394 A.2d 299 (1978). The evidence in this case was uncontroverted that the conduct, alleged to constitute a conspiracy to violate the Maryland income tax laws, continued into late 1982 or early 1983, clearly within the limitation period.  To have given an instruction as requested by Winters would have been unwarranted as one not based on the evidence.  Again we perceive no error.

n3 The period of limitation for conspiracy is 1 year; the indictment was filed 2/14/83.

[***34]

   JUDGMENT AFFIRMED.

   APPELLANT TO PAY THE COSTS. 

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Philip WyattMOORE, III 
Miscellaneous Docket (Subtitle BV), No. 36, September Term,1983
 
Court of Appeals of Maryland
 
301 Md. 169; 482 A.2d 497; 1984 Md. LEXIS 357

 October  22, 1984

   PRIOR HISTORY: [***1]  
Circuit Court for  Anne Arundel  County Raymond G. Thieme, Jr. 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 BV15 c FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST PHILIP WYATT MOORE, III.

CORE TERMS:  disciplinary, misconduct, misappropriation, misappropriated, disbarment

COUNSEL: Melvin Hirshman, Esquire, Bar Counsel, and Walter D. Murphy, Jr., Esquire, Bar Counsel and Assistant Bar Counsel, Annapolis, for petitioner Attorney Grievance Commission of Maryland.

   No appearance on behalf of respondent.

JUDGES: Murphy, C.J., and Smith, Eldridge, Cole, Rodowsky and Couch, JJ., and W. Albert Menchine, Associate Judge of the Court of Special Appeals (retired), Specially Assigned.

OPINIONBY: PER CURIAM

OPINION: [*170] [**498] The Attorney Grievance Commission, acting through Bar Counsel, filed a petition for Disciplinary Action against Philip Wyatt Moore, III, alleging violations of DR 1-102(A)(3), (4), (5) and (6), DR 9-102(A)(1) and (2) and DR 9-102(B)(3) and (4) of the Code of Professional Responsibility.  We referred the matter, pursuant to Maryland Rule BV9 b, to Judge Raymond G. Thieme, Jr., Associate Judge of the[***2] Circuit Court for Anne Arundel County, to make findings of fact and conclusions of law.

   Judge Thieme observed that, as alleged in the disciplinary petition, the Respondent had earlier been charged with the identical disciplinary infractions in the District of Columbia, where the misconduct occurred, and had been disbarred from the practice of law in that jurisdiction on June 10, [*171] 1983.  Judge Thieme found as a fact that the Respondent willfully misappropriated $25,000 of the funds of a client.  He also found that Respondent repeatedly evaded the client's inquiries concerning the misappropriated funds in an effort to hide the defalcation.  Judge Thieme concluded that the Respondent's misappropriation involved moral turpitude and that there were no mitigating circumstances in explanation of the misconduct. The court concluded that the Respondent had violated the disciplinary rules, as charged in the disciplinary petition.

   The Respondent did not take any exceptions to Judge Thieme's findings.  Bar Counsel has recommended disbarment.

   Under Maryland Rule BV10 e 1 the final adjudication of Respondent's misconduct by the District of Columbia Court of Appeals "is conclusive[***3] proof of the misconduct in the hearing of charges pursuant to this Rule."£ Moreover, we have said time and again that misappropriation of a client's funds involves moral turpitude which will result in disbarment in the absence of compelling extenuating circumstances justifying a lesser sanction.  Respondent has not presented any such circumstances and, accordingly, disbarment is the appropriate sanction in this case.  See Attorney Griev. Comm'n v. Harper, 300 Md. 193, 477 A.2d 756 (1984); Attorney Griev. Comm'n v. Mason, 295 Md. 49, 453 A.2d 143 (1982); Attorney Griev. Comm'n v. Pattison, 292 Md. 599, 441 A.2d 328 (1982); Bar Ass'n v. Marshall, 269 Md. 510, 307 A.2d 677 (1973).

   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 BV15 c FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE [**499] ATTORNEY GRIEVANCE COMMISSION AGAINST PHILIP WYATT MOORE, III. 

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Zane GrayNICHOLS 
Miscellaneous Docket (Subtitle BV), No. 6, September Term,1984
 
Court of Appeals of Maryland
 
301 Md. 172; 482 A.2d 499; 1984 Md. LEXIS 358

 October  22, 1984

   PRIOR HISTORY: [***1]  
Circuit Court for  Anne Arundel  County James C. Cawood, Jr. 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 BV15 c FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST ZANE GRAY NICHOLS.

CORE TERMS:  reinstatement, alcoholism, misconduct, practice of law, indefinitely, suspended, promptly

COUNSEL: Melvin Hirshman, Esquire and Glenn M. Grossman, Esquire, Bar Counsel and Assistant Bar Counsel for Attorney Grievance Commission of Maryland, Annapolis, for petitioner.

   David R. Cuttler, Esquire of Glen Burnie, Maryland, for respondent.

JUDGES: Murphy, C.J., Smith, Eldridge, Cole, Rodowsky and Couch, JJ., and W. Albert Menchine, Associate Judge of the Court of Special Appeals (retired), Specially Assigned.

OPINIONBY: PER CURIAM

OPINION: [*173] [**499] The Attorney Grievance Commission, acting through Bar Counsel, filed a petition for Disciplinary Action against Zane Gray Nichols, alleging violations of the Code of Professional Responsibility.  We referred the matter, pursuant to Maryland Rule BV9 b, to Judge James C. Cawood, Jr., Associate Judge of the Circuit Court for Anne Arundel County, to make findings of fact and conclusions of law.

   Judge[***2] Cawood found that the Respondent had accepted retainer fees from two clients but completely neglected to act on their behalf; that he misrepresented to each of them the status of their cases; and that he thereby violated DR 1-102 (Misconduct), DR 2-110 (Withdrawal from Employment), DR 6-101 (Failing to Act Competently), and DR 7-101 (Representing a Client Zealously). Judge Cawood also found that the Respondent suffered from alcoholism; that, as to the misconduct charged in the disciplinary petition, the violations were proximately caused by the Respondent's alcoholism; that Respondent had ceased drinking and is presently receiving intensive counseling for his alcoholism; that he has been in communication with Richard Vincent, Director of the Lawyer's Counseling Program of the Maryland State Bar Association; that he is attending Alcoholics Anonymous on a daily basis; and that he is now practicing with an experienced practitioner.

   [**500] Respondent took no exceptions to Judge Cawood's findings.  Bar Counsel has recommended that Respondent be indefinitely suspended from the practice of law without prejudice to his right to apply for reinstatement, subject to the following conditions: [***3] 
 
[*174] 1. He shall participate in such activities as may be prescribed from time to time by the Director of the Lawyer's Counseling Program of the Maryland State Bar Association.
 
2. He shall maintain active membership and participation with Alcoholics Anonymous.
 
3. He shall be associated with another member of the Bar of this Court who shall monitor his activities as a practicing lawyer and report promptly to Bar Counsel should Mr. Nichols fail to act promptly or otherwise ethically on behalf of his clients.  That attorney's consent and an indication of his willingness to so act shall be appended to any petition for reinstatement.
 
4. He shall pay all costs incurred in connection with this proceeding prior to reinstatement.
 
Respondent has expressed his agreement with Bar Counsel's recommendation.

   After careful consideration of the record before us, we accept Judge Cawood's findings that a causal relationship existed between the Respondent's misconduct and his alcoholism. We shall order that Respondent be suspended indefinitely from the practice of law without prejudice to his right to apply for reinstatement upon the conditions above outlined.  Respondent[***4] must understand that a breach of any one of the conditions will constitute grounds for renewal of the indefinite suspension.  See Attorney Griev. Comm'n v. Truette , 299 Md. 435, 474 A.2d 211 (1984); Attorney Griev. Comm'n v. Willemain, 297 Md. 386, 466 A.2d 1271 (1983); Attorney Griev. Comm'n v. Finlayson, 293 Md. 156, 442 A.2d 565 (1982).

   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 BV15 c FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST ZANE GRAY NICHOLS. 

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Sol Zalel ROSEN 
Misc. Docket (Subtitle BV) No. 5 September Term, 1984
 
Court of Appeals of Maryland
 
301 Md. 37; 481 A.2d 799; 1984 Md. LEXIS 355

 October  2, 1984

   PRIOR HISTORY: [***1]  
Circuit Court for  Anne Arundel  County Raymond G. Thieme, Jr. 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 BV15 c FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST SOL ZALEL ROSEN.

CORE TERMS:  disciplinary, suspended, practice of law, misconduct, suspension, termination

COUNSEL: Oral argument for appellant and appellee waived.

JUDGES: Murphy, C.J., Smith, Eldridge, Cole, Rodowsky and Couch, JJ., and James C. Morton, Jr., Associate Judge of the Court of Special Appeals (retired), Specially Assigned.

OPINIONBY: PER CURIAM

OPINION: [*38] [**800] The Attorney Grievance Commission, acting through Bar Counsel, filed a petition for disciplinary action against Sol Zalel Rosen, alleging that he violated the following disciplinary rules of the Code of Professional Responsibility:
 
DR 4-101(B)(1) (A lawyer shall not knowingly "[r]eveal a confidence or secret of his client.");
 
DR 6-101(A)(3) (A lawyer shall not "[n]eglect a legal matter entrusted to him."); and
 
DR 7-101(A)(1) (A lawyer shall not intentionally "[f]ail to seek the lawful objectives of his client through reasonably available means . . . .").[***2] 
 
We referred the matter, pursuant to Maryland Rule BV9 b, to Judge Raymond G. Thieme, Jr. of the Circuit Court for Anne Arundel County to make findings of fact and conclusions of law.

   [*39] Judge Thieme observed that, as alleged in the disciplinary petition, the respondent had earlier been charged with the identical disciplinary infractions in the District of Columbia and had been suspended from the practice of law in that jurisdiction by the District of Columbia Court of Appeals for six months, beginning March 8, 1984.  See Matter of Rosen, 470 A.2d 292 (1983). Judge Thieme noted that under Maryland Rule BV10 e 1 the final adjudication of respondent's misconduct by the District of Columbia Court of Appeals "is conclusive proof of the misconduct in the hearing of charges pursuant to this Rule." n1

n1 The misconduct alleged primarily concerned neglect and intentional failure to seek lawful client objectives in two separate representations of clients in the District of Columbia.  Judge Thieme made independent findings of fact, concluding that the respondent had violated the disciplinary rules, as charged in the disciplinary petition.

[***3]

   Neither party took exceptions to Judge Thieme's findings and conclusions. Bar Counsel has recommended that the respondent be suspended for six months. The respondent, while not disagreeing with Bar Counsel's recommendation, urges that the period of suspension be concurrent with that imposed by the District of Columbia Court of Appeals, i.e., to date from March 8, 1984.  In this connection, the respondent avers that upon his suspension in the District of Columbia, he closed his law practice and has not practiced in any jurisdiction as of March 8, 1984.

   After careful consideration, and accepting Judge Thieme's findings, we conclude that respondent should be suspended from the practice of law in Maryland for six months, commencing from the date of the filing of the opinion in this case.  Prior to termination of the suspension, the respondent shall pay all costs of the disciplinary proceedings. n2

n2 Under Rule XI of the Rules Governing the Bar of the District of Columbia, an attorney suspended from the practice of law in that jurisdiction for less than one year need not apply for reinstatement on petition; readmission is automatic upon termination of the suspension. See Attorney Grievance Commission v. Sheehy, 298 Md. 371, 470 A.2d 341 (1984).

[***4]

   [*40] 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 BV15 c FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST SOL ZALEL ROSEN. 

Thomas Leslie RHOADES, Jr. v. STATE of Maryland 
No. 39, September Term, 1984
 
Court of Appeals of Maryland
 
300 Md. 792; 481 A.2d 238; 1984 Md. LEXIS 343

 September  14, 1984

   PRIOR HISTORY: [***1]
 
Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County, Judge Raymond G. Thieme, Jr.) 
Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County, Judge Raymond G. Thieme, Jr.).

COUNSEL: Gary S. Offutt, Assistant Public Defender, Baltimore, Maryland (Alan H. Murrell, Public Defender, Baltimore, Maryland, on the brief), for appellant.

   Diane G. Goldsmith, Assistant Attorney General (Stephen H. Sachs, Attorney General, Baltimore, on the brief), for appellee.

JUDGES: Murphy, C.J., Smith, Eldridge, Cole, Rodowsky and Couch, JJ., and James C. Morton, Jr., Associate Judge of the Court of Special Appeals (retired), Specially Assigned.

OPINION: [*793] [**239] ORDER

   The petition for writ of certiorari in the above entitled case having been granted 299 Md. 492, 474 A.2d 917, and heard, it is this 14th day of September, 1984

   ORDERED, by the Court of Appeals of Maryland, that the writ of certiorari be, and it is hereby, dismissed with costs, petition having been improvidently granted. 

Carl O. SNOWDEN et al. v. BALTIMORE GAS & ELECTRIC COMPANY 
No. 144, September Term, 1983
 
Court of Appeals of Maryland
 
300 Md. 555; 479 A.2d 1329; 1984 Md. LEXIS 333

 August  22, 1984

   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: APPEAL DISMISSED.  COSTS TO BE EQUALLY DIVIDED.

CORE TERMS:  appealable, class action, federal rule, interlocutory, certify, final judgment, Maryland Rule, certification, dispositive, collateral order, death knell, notice, interlocutory order, class certification, unnamed, route, multiple claims, similarly situated, final decision, declaration, unrelated, preliminary injunction, appellate jurisdiction, inherently, purported, putative, disposes, entry of judgment, cause of action, supplemental

COUNSEL: Alan Hilliard Legum, Annapolis, Maryland (Stephen H. Schwartz and Alan Hilliard Legum, P.A., Annapolis, Maryland, on the brief), for appellants.

   Stephen J. Rosasco and Michael D. Rind, Baltimore, Maryland (James A. Biddison, Jr., Baltimore, Maryland and Frank C. Serio, Annapolis, Maryland, on the brief), for appellee.

JUDGES: Murphy, C.J., and Smith, Eldridge, Cole, Davidson, Rodowsky and Couch, JJ.

OPINIONBY: ELDRIDGE

OPINION: [*557] [**1330] Carl O. Snowden, "for himself and on behalf of all others similarly situated," commenced the present action by filing in the Circuit Court for Anne Arundel County a declaration against the Baltimore Gas & Electric Company.  Snowden alleged in the declaration that he had telephoned the defendant to make a complaint concerning his bill, that during his telephone conversation with the defendant's Customer Service Representative he heard a "beep," and that he "was advised that it was the policy of the company to record all incoming calls relative to[***2] inquiries concerning service or billing."£ Snowden asserted that the defendant's actions with respect to his telephone call and similar telephone calls [*558] of others were in violation of Maryland Code (1974, 1984 Repl.Vol.), §§ 10-401 through 10-412 of the Courts and Judicial Proceedings Article.  Snowden stated that his suit was a class action, and he sought actual damages, punitive damages, and attorneys' fees under § 10-410 on behalf of himself and each of the other members of the class.

   The defendant filed a demurrer, which the circuit court overruled, and then filed a general issue plea.  Subsequently the defendant filed a "Motion . . . For Determination of Non-Class Action Status," setting forth several reasons why the court should issue an order "declaring the nonrepresentative character of the action, and stating that only the rights of the individual named parties are bound thereby."

   On July 18, 1983, the circuit court filed a memorandum opinion holding that "[b]ecause the named plaintiff's claim cannot be typical of a class, the named plaintiff cannot adequately represent a class," and that, therefore, the action was "non-representative in character and . . . [***3] cannot proceed as a class action."£ The order concluded by stating "that Defendant's Motion for Determination of Non-class action be granted" and that "this action be dismissed as to the unnamed plaintiffs, members of the alleged class of others similarly situated."

   The plaintiff on August 7, 1983, filed a motion requesting that the circuit court make its July 18th order final and appealable [**1331] under former Rule 605 a. n1£ The circuit court on [*559] August 9, 1983, granted the plaintiff's motion, determined that there was no just reason for delay, and directed the entry of "final judgment . . . in favor of the Defendant, with respect to the unnamed Plaintiffs, members of the alleged class of others similarly situated."

n1 Former Rule 605 a provided as follows:
"Rule 605.  Multiple Claims -- Judgment Upon . . . Gen'l.

   a.  When Entered -- As to Part or All.

   "Where more than one claim for relief is presented in an action, whether as an original claim, counterclaim, cross-claim, or third-party claim, the court may direct the entry of a final judgment upon one or more but less than all of the claims only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all the claims shall not terminate the action as to any of the claims, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims."
Effective July 1, 1984, the Rule was re-numbered Rule 3-602, and the wording was slightly modified.  The minor changes in wording were not intended to effect any change in substance.

   In this opinion, we shall refer to the Rule as Rule 605 a.

[***4]
 
   The plaintiff filed an order of appeal to the Court of Special Appeals from the August 9th order.  After briefs were filed but before the case was argued in the intermediate appellate court, this Court issued a writ of certiorari.  In our order directing the issuance of the writ, we requested the parties to file supplemental briefs on an additional question which the parties had not dealt with in their original briefs.  The additional question was as follows:

   "Whether the circuit court's order of August 9, 1983, constitutes an appealable judgment in light of Maryland Rule 605 a."
 
We shall answer in the negative and dismiss the appeal.

   In their supplemental briefs and oral arguments, both sides take the position that the circuit court's August 9th order was appealable under Rule 605 a, although they obviously disagree over the merits of the order. n2£ Nevertheless, [*560] as we [**1332] have repeatedly stated, "appellate jurisdiction cannot be conferred on a reviewing court by consent of the litigants, and this Court will dismiss an appeal sua sponte when it recognizes that appellate jurisdiction is lacking."£ Anthony Plumbing Of Md. v. Atty. Gen., 298[***5] Md. 11, 16, 467 A.2d 504 (1983), and cases there cited.

n2 The defendant's principal contention, however, is that the plaintiff's declaration failed to set forth a cause of action and that, therefore, the circuit court erred in overruling the defendant's demurrer.  This contention has no relation to the "Motion Of Defendant For Determination Of Non-Class Action Status" and the circuit court's interlocutory order granting that motion.  Even if that order could have been made appealable under Rule 605 a, a party could not on such appeal obtain review of prior unrelated orders.

   Rule 887, which provides that generally on an appeal from a final judgment, every previous interlocutory order shall be open to appellate review, only applies to appeals from final judgments in the usual sense.  It does not ordinarily apply to permissible appeals from interlocutory orders, whether permitted under Code (1974, 1984 Repl. Vol.), § 12-303 of the Courts and Judicial Proceedings Article, or permitted because the interlocutory orders are "deemed" final under a rule such as Rule 605 a or a principle such as the collateral order doctrine.  See Pappas v. Pappas, 287 Md. 455, 413 A.2d 549 (1980). As one court has explained (United States v. Fort Sill Apache Tribe, State of Okl., 507 F.2d 861, 863-864 (Ct.Cls.1974)):

   "Thus while part 3 [of the defendant's appeal] is properly reviewable at this time, it is NOT a final decision to which may be added other matters for appeal, if they are orders in unrelated matters not part of the foundation of the decision appealed from.

   * * *

   "Defendant's theory is that an allowable interlocutory appeal can be made to carry with it all previous orders and rulings whether or not separately appealable. This is true only to the extent they enter into the appealable ruling and are subsumed thereby.  Defendant here wants its proper appeal to carry along wholly unrelated holdings."
In Shaffer v. Globe Protection, Inc., 721 F.2d 1121, 1122, 1124 (7th Cir.1983), the court held that an appeal from a denial of a preliminary injunction "did not bring up for review an earlier denial of class action maintenance," as the earlier order did not "directly control" and was not "inextricably bound to the denial of the preliminary injunction."£ See the discussions in Kershner v. Mazurkiewicz, 670 F.2d 440 (3rd Cir.1982). See also Pauls v. Secretary Of Air Force, 457 F.2d 294, 298 (1st Cir.1972); Tri-State Corp. v. Surry, 139 So.2d 100, 107 (La.App.1962); Bloomfield Royalty Corp. v. Carco Investments, Inc., 435 S.W.2d 178, 180 (Tex.Civ.App.1968).

[***6]

   It has been pointed out on several recent occasions that Rule 605 a empowers a trial court to enter a final judgment resolving part of a case only where there are multiple claims and the order disposes of at least one entire claim. An order which disposes of only a portion of a claim cannot be made final under Rule 605 a.  East v. Gilchrist, 293 Md. 453, 458, 445 A.2d 343 (1982); Lewis v. Lewis, 290 Md. 175, 181, 428 A.2d 454 (1981); Pappas v. Pappas, 287 Md. 455, 464, 413 A.2d 549 (1980); Biro v. Schombert, 285 Md. 290, 294, 402 A.2d 71 (1979); Diener Enterprises v. Miller, 266 Md. 551, 554-556, 295 A.2d 270 (1972); Harford [*561] Sands, Inc. v. Levitt & Sons, 27 Md.App. 702, 708-709, 343 A.2d 544, cert. denied, 276 Md. 744 (1975).

   In addition, we have held that the term "multiple claims" in Rule 605 a includes multiple parties.  Starfish Condo. v. Yorkridge Serv., 292 Md. 557, 559-560 n. 4, 440 A.2d 373 (1982); Lang v. Catterton, 267 Md. 268, 297 A.2d 735 (1972); Moritz v. Church Of Jesus Christ, 266 Md. 220, 222, 292 A.2d 84 (1972); Brooks v. Ford Motor Credit Co., 261 Md. 278, 274 A.2d 345 (1971); Tedrow v. Ford Motor Co.[***7] , 260 Md. 142, 271 A.2d 688 (1970); Picking v. State Finance Co., 257 Md. 554, 557-558, 263 A.2d 572 (1970). n3£ Consequently, if a trial court's order is dispositive with respect to one party, the order can be made final as to that party by the express determination and direction required under Rule 605 a.  See Picking v. State Finance Co., supra, 257 Md. at 558, 263 A.2d at 574; Prickett v. Consolidated Liquidating Corp., 180 F.2d 8, 9, 196 F.2d 67, 68 (9 Cir.1950, 1952); 6 J. Moore, W. Taggart & J. Wicker, Moore's Federal Practice §§ 54.33, 54.34 (2d ed. 1983).

n3 New Rule 3-602 embodies these holdings by expressly referring to "multiple parties."

   On the other hand, this Court has not previously considered whether an order that a case may not proceed as a class action can be made final under Rule 605 a on the theory that it is dispositive as to certain "parties," i.e., the "unnamed plaintiffs, members of the alleged class of others similarly situated."£ The federal courts, however, have[***8] considered this issue.  And, as Judge Digges stated for the Court in Diener Enterprises v. Miller, supra, 266 Md. at 554, 295 A.2d at 472, Rule 605 a "was modeled after Rule 54(b) of the Federal Rules of Civil Procedure and uses substantially the same language.  This renders interpretations of the federal rule especially persuasive as to the meaning of the Maryland Rule."£ See Lewis v. Lewis, supra, 290 Md. at 181, 428 A.2d at 457; Biro v. Schombert, supra, 285 Md. at 295, 402 A.2d at 74.

   [*562] The Supreme Court of the United States, in Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978), considered the appealability of a trial court's order determining that an action could not be maintained as a class action and held that such order was not appealable as a "final decision."£ Although the Livesay case did not involve a trial court's attempt to make the order appealable under Federal Rule 54(b), the Supreme Court's opinion is instructive on the issue.  In holding that the order was interlocutory, that it was not appealable under the "collateral order doctrine," and that it was not appealable under the "death knell" theory developed[***9] by some lower federal courts, n4 the Supreme Court pointed out that under [**1333] Federal Rule 23(c)(1) the order is specifically subject to later revision by the trial court.  437 U.S. at 469, 98 S.Ct. at 2458. n5£ The Supreme Court went on to observe that "the class determination generally involves considerations that are 'enmeshed in the factual and legal issues comprising the plaintiff's cause of action.'"£ Ibid., quoting from Mercantile Nat. Bank v. Langdeau, 371 U.S. 555, 558, 83 S.Ct. 520, 522, 9 L.Ed.2d 523 (1963). n6£ The opinion in Livesay characterized [*563] a refusal to certify a class as being "inherently interlocutory."£ 437 U.S. at 470, 98 S.Ct. at 2458. Finally, the Supreme Court discussed the availability of the Federal Interlocutory Appeals Act of 1958, 28 U.S.C. § 1292(b), which provides for discretionary appeals from certain interlocutory orders.  The Court indicated that, where an appeal was desirable, this statute furnished the appropriate route for appellate review of orders refusing to certify a class. Id. at 474-475, 98 S.Ct. at 2460-2461. n7£ The Court did not mention Federal Rule 54(b) as an available alternate route. Rather, [***10] the Supreme Court quoted from Judge Friendly's concurring opinion in Parkinson v. April Industries, Inc., 520 F.2d 650, 660 (2nd Cir.1975), that "'the best solution is to hold that appeals from the grant or denial of class action designation can be taken only under the procedure for interlocutory appeals provided by 28 U.S.C. 1292(b).'"£ Id. at 475 n. 27, 98 S.Ct. at 2461-2462 n. 27, emphasis added.

n4 The Supreme Court described the "death knell" theory as follows (437 U.S. at 469-470, 98 S.Ct. at 2458):

   "Several Circuits, including the Court of Appeals in this case, have held that an order denying class certification is appealable if it is likely to sound the 'death knell' of the litigation.  The 'death knell' doctrine assumes that without the incentive of a possible group recovery the individual plaintiff may find it economically imprudent to pursue his lawsuit to a final judgment and then seek appellate review of an adverse class determination.  Without questioning this assumption, we hold that orders relating to class certification are not independently appealable under § 1291 prior to judgment."
[***11] 

 n5 The Court relied on the language of Federal Rule 23(c)(1) that the order may be "'altered or amended before the decision on the merits.'"£ 437 U.S. at 469 n. 11, 98 S.Ct. at 2458 n. 11. Maryland Rule 2-231(c) contains identical language.  In fact, as the committee notes under Maryland Rule 2-231 indicate, our class action rule is almost entirely derived from Federal Rule 23.

n6 See also Sigma Repro. Health Cen. v. State, 297 Md. 660, 668-669, 467 A.2d 483 (1983), discussing this aspect of the Livesay case.

n7 Section 1292(b) of 28 U.S.C. permits a United States Court of Appeals, in its discretion, to entertain an appeal from an interlocutory order where the district judge states that "such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation. . . ."£ Maryland has no statute or rule comparable to § 1292(b).

   As previously indicated, the authorization in Federal Rule 54(b) and Maryland Rule 605 a for trial judges[***12] to make certain orders appealable, is limited to orders which, by their nature, have a characteristic of finality. Such orders must be completely dispositive of an entire claim or party.  The emphasis in the Supreme Court's Livesay opinion upon the inherently interlocutory nature of orders refusing to certify suits as class actions, and the Court's indication that 28 U.S.C. § 1292(b) provides the only route under federal procedure for appeal of such orders, strongly suggests that the orders may not be made final and appealable under Federal Rule 54(b).

   [*564] Following the Supreme Court's opinion in Coopers & Lybrand v. Livesay, supra, one federal appellate court has dealt with the question presented in the instant case and has decided that a trial court's order refusing to certify an action as a class action cannot be made final and appealable under Federal Rule 54(b).  In Minority Pol. Off. Ass'n v. City of South Bend, Ind., 721 F.2d 197 (7th Cir.1983), where the trial judge had made the requisite determination and direction under Rule 54(b), the United States Court of Appeals for the Seventh [**1334] Circuit dismissed an appeal from a purported "final Judgment" [***13] with respect to the class action issue. The Seventh Circuit reasoned as follows (721 F.2d at 201):
 
"The only reason the district judge refused to certify this lawsuit as a class action was that he thought the members of the class too few to satisfy the requirements of Rule 23.  Their claims are identical to those of the named plaintiffs.  In any event, the Supreme Court's decision that refusals to certify actions as class actions are not appealable under the 'collateral order' doctrine, Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978), implies that they are not appealable under Rule 54(b) either.  The argument for appeal that the Court rejected was that such a refusal was sufficiently final as a practical matter to be a 'final decision' within the meaning of 28 U.S.C. § 1291 interpreted in light of the 'collateral order' doctrine.  Since a federal rule of civil procedure cannot enlarge the jurisdiction of the district court (Fed.R.Civ.P. 82), Rule 54(b) only allows appeals from orders that are in some sense final.  See, e.g., Western Geophysical Co. of America v. Bolt Assocs., 463 F.2d 101, 102-03 (2d Cir.1972). And since Livesay[***14] holds that refusals to certify a case as a class action are not final, they cannot be appealed under Rule 54(b) any more than they can be appealed under section 1291 directly."

   Although the case was decided shortly before the Supreme Court's Livesay decision, the United States Court of Appeals for the Tenth Circuit reached the same conclusion [*565] in West v. Capitol Federal Sav. And Loan Ass'n, 558 F.2d 977 (10th Cir.1977). That was a class action suit under the antitrust laws, and the district court denied class action certification. Like the circuit court in the instant case, the district court in West determined that there was no just reason for delay, dismissed the action as to all but the named plaintiffs and directed the entry of final judgment in favor of the defendants with respect to all but the named plaintiffs.  In holding that the order could not be made reviewable under Rule 54(b), the Tenth Circuit pointed out that it was not dispositive with respect to any parties, because the unnamed plaintiffs in such an action cannot be considered "parties" for purposes of Rule 54(b) until there is class action certification and notice. The Court of Appeals[***15] explained (558 F.2d at 980):
 
"The notice of appeal is from both the denial of class certification and the dismissal of the action against the putative members of the class.  At the time of dismissal the putative members were not parties to the suit.  Class certification had been denied and no notice had been given to the nonappearing class members as required by Rule 23(c)(2) if the suit is to proceed as a class action. Until class certification is followed by notice the members of the potential class are 'mere passive beneficiaries' who do not 'have any duty to take note of the suit.'£ American Pipe & Construction Co. v. Utah, 414 U.S. 538, 552, 94 S.Ct. 756, 765, 38 L.Ed.2d 713. Notice is 'an unambiguous requirement of Rule 23.'£ Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 176, 94 S.Ct. 2140, 2152, 40 L.Ed.2d 732. A personal judgment entered without jurisdiction over the person violates due process and is void.  Hanson v. Denckla, 357 U.S. 235, 250, 78 S.Ct. 1228 [1237], 2 L.Ed.2d 1283."
 
The Court went on to point out that, as to the named plaintiffs, there was no final judgment against them with regard to any claim, id. at 982.

   [*566] In[***16] our view, the opinions of the Seventh and Tenth Circuits in the above-discussed cases are sound.  We have discovered no reasoned holdings to the contrary.

   In arguing that the order in the case at bar was appealable, the plaintiff relies on three cases.  They are Hayes v. Sealtest [**1335] Foods Division of Nat. Dairy Prod. Corp., 396 F.2d 448 (3rd Cir.1968); Katz v. Carte Blanche Corporation, 496 F.2d 747 (3rd Cir.1973), cert. denied, 419 U.S. 885, 95 S.Ct. 152, 42 L.Ed.2d 125 (1974); and Windham v. American Brands, Inc., 539 F.2d 1016 (4th Cir.1976). These cases are not persuasive authority supporting the plaintiff's construction of Maryland Rule 605 a.  First, all three cases were decided before the Supreme Court's opinion in Coopers & Lybrand v. Livesay, supra. Moreover, the decisions in neither the Hayes case nor the Katz case support the plaintiff's position.  Although there is a comment in Hayes, 396 F.2d at 449, which might arguably support the proposition that an interlocutory order denying class action certification could be made appealable under Federal Rule 54(b), the case itself involved an appeal from a final judgment dismissing [***17]the plaintiffs' complaint.  Katz, while containing a one sentence dictum that a denial of class action treatment could be made appealable under Federal Rule 54(b), see 496 F.2d at 752, was an appeal under 28 U.S.C. § 1292(b). n8£ In the Windham case, where the district court had denied class action certification and had purported to make the judgment final under Federal Rule 54(b), the Fourth Circuit, without any reasoning or discussion, merely [*567]stated that "[w]e accept such certification as appropriate," citing the Hayes and Katz cases.  539 F.2d at 1020. n9

n8 See also De Masi v. Weiss, 669 F.2d 114, 119 (3rd Cir.1982), where the same court in this context did not mention Federal Rule 54(b).  The court in De Masi thus stated:

   "We therefore adhere to the clear and settled precepts of this court: a class action determination, affirmative or negative, is not a final order appealable under 28 U.S.C. § 1291. Hackett v. General Host Corp., 455 F.2d 618 (3d Cir.), cert. denied, 407 U.S. 925, 92 S.Ct. 2460, 32 L.Ed.2d 812 (1972). See Coopers & Lybrand v. Livesay, 437 U.S. 463, 476, 98 S.Ct. 2454, 2462, 57 L.Ed.2d 351 (1978). If there is any route open for the interlocutory review of the grant or denial of class certification, at least in this case, it is pursuant to 28 U.S.C. § 1292(b).  Katz, 496 F.2d at 752 . . . ."
[***18] 

n9 In West v. Capitol Federal Sav. and Loan Ass'n, 558 F.2d 977, 980 (10th Cir.1977), the Court of Appeals discussed Hayes, Katz and Windham, and distinguished those cases as we have.

   We conclude, therefore, that the circuit court's order in this case was not dispositive with respect to an entire claim or party and could not be made appealable under Rule 605 a.

   APPEAL DISMISSED.

   COSTS TO BE EQUALLY DIVIDED. 

ANNE ARUNDEL COUNTY, Maryland v. Thomas BURNOPP et al. 
No. 142, September Term, 1983
 
Court of Appeals of Maryland
 
300 Md. 343; 478 A.2d 315; 1984 Md. LEXIS 323

 July  16, 1984

   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 REVERSED AND CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION; APPELLEES TO PAY THE COSTS.

CORE TERMS:  public use, feet, public necessity, twenty-four, acquire, eminent domain, condemnation, landowners, street, right of way, condemn, Law of Eminent Domain, pleasure, railroad, alley, twenty foot, accommodate, condemned, subject property, public purpose, five hundred, acquisition, ordinance, foot, power of eminent domain, public utility, railroad line, right to use, proposed use, convenience

COUNSEL: Victor A. Sulin, Deputy County Solicitor, Annapolis, Maryland, for appellant.

   Allan C. Westcott, Annapolis, Maryland, for appellees.

JUDGES: Smith, Eldridge, Cole, Davidson, Rodowsky and Couch, JJ., and Charles E. Orth, Jr., Associate Judge of the Court of Appeals (retired), Specially Assigned.

OPINIONBY: SMITH

OPINION: [*344] [**316] We shall here reverse an order of the Circuit Court for Anne Arundel County which dismissed a petition of Anne Arundel County to condemn land for a road, apparently on the grounds both of a failure to prove public necessity as well as public use.

   I

   Anne Arundel County is a charter county under Md. Const. art. XI-A.  Maryland Code (1957, 1981 Repl.Vol.) Art. 25A, § 5(B) authorizes it to condemn property "required for public purposes in the county . . . ."£ Anne Arundel County Code (1982) § 1-317 authorizes condemnation of real property "necessary for a public purpose."
 
   Sleepy Hollow[***2] Road runs easterly from Gambrills Road in Anne Arundel County.  The County sought to condemn a strip 40 feet wide and about 500 feet long through the lands of appellees, Thomas Burnopp et al. (the landowners).  This would connect with another portion of Sleepy Hollow Road [*345]extending another 2,000 feet to a dead end.  Legislation authorizing the acquisition had been duly passed.  The budget proposals in connection with the project recited that it was necessary for the County to take over the road to make the necessary improvements so that emergency services, garbage collection, snow removal, and postal service could be provided to the residences on the remainder of Sleepy Hollow Road.  The landowners in their respective answers denied that it was "necessary or proper to acquire the described property for any proper public project" and denied "that the purpose of these proceedings . . . is a bona fide public purpose . . . ."

   Pursuant to the provisions of Maryland Rule 502 a the landowners requested the trial court to hold "a separate trial on the issue of public necessity for the use contemplated by the . . . proposed condemnation . . . ."£ At that trial the County introduced[***3] evidence of the adoption of the appropriate resolutions for condemnation. [**317] The evidence is summarized in the oral opinion of the trial judge:
 
"The evidence is that Sleepy Hollow Road was a private twenty foot right of way which has existed for a number of years, at least back into the '40's.  It now services twenty to -- twenty to twenty-four homes.  The subject property, that is the subject property which is the subject of these proceedings, borders the north and south side of the road for five hundred feet in an easterly direction from Gambrills Road.  That five hundred feet, over the years, has been reasonably well maintained by the adjoining neighbors, they're the defendants in this case.  The road proceeds east for about one mile.  The balance of this is a right of way. The Court does not know who the owners are, but I suppose I can infer and do find that the owners of that -- the balance of the right of way are adjoining land owners on up the road.  This part of the road, that is the road that is beyond the five hundred foot point, is poorly maintained and is subject to potholes.  There are no County services provided, except for emergency fire and ambulance. [***4] There is a school bus provided [*346] for the very next adjoining neighbor to the east of the subject property. The Postal Union apparently has had enough influence to cause pressure to have that service discontinued by virtue of the fact of the condition of the road was not satisfactory to the Union or the delivery man for the purpose of the delivery of the mail.  The Court has seen the photographs and sees pot -- sees potholes and it is obvious the road is in a state of disrepair, but it's not unpassable.  So, the residents, not all the residents, nor does the Court know whether it's a majority.  The Court just does not know the number, has asked the County to acquire the property that is acquire the road and maintain the road.  At one time, the County did maintain the road to the extent of blacktopping it, but that's been some years ago and the road has fallen into the state of disrepair as the photographs show.  That is the road which is east of the five hundred point mark.  The County, as I've said before, through legislative process including hearings has passed appropriate ordinances to acquire by condemnation, if necessary.  And they not only have passed the ordinance[***5] to acquire the twenty foot right of way that these people have built their properties on, but also twenty feet more -- ten feet on either side of the road.  The evidence is the County services are difficult to provide -- provide because [of] the condition of the road.  And that in order to provide these services to the twenty to twenty-four homes, they are required to -- they are required to acquire the road to maintain it, surface it and whatever is necessary to be done.  To do this, the County has passed the ordinance as stated to acquire the twenty foot plus twenty foot of the defendants' property -- ten feet on either side.  As I said before, there is a presumption the legislative process was correct.  The Court finds that as to the additional twenty feet, there has been no evidence to the effect that that [*347] was necessary to be acquired. n[1]£ That the acquisition of that was arbitrary and capricious, that the twenty foot road that's been there has been adequate so far as size and shape to service this roadway and the -- the houses in question, that the additional twenty feet, there may be all kinds of reasons for it, but there's been absolutely no reason given to[***6] the Court.  And to the contrary, reasons have been given as to why it should not be acquired to the extent that it's too close to one of the defendant's houses.  And I can see fences and what [**318]have you along the property line.  As to the twenty foot right of way, the question is whether there is any evidence of a reasonable necessity. The Court finds that the only evidence that it's heard and it -- that it has heard evidence to the effect that it's to service the twenty-four houses in question -- the twenty to twenty-four in question.  And to do so, it's going to do so at the expense of the three property owners here.  Now as I've said before that happens in many condemnation cases that three are hurt for the purpose of twenty-four, but there must be some kind of overriding public purpose. And the Court finds none, that this is clearly for private need and the private need is for those twenty to twenty-four houses.  That I just cannot believe that if there were one house at the end of this road, that the County would even be in here.  And this case would have been over a long time ago if this had been one house, one private property.  And what happens if there's two, well[***7] that would be the same problem and the same situation would apply and the same situation applies as to twenty or twenty-four. That there's been no evidence to the effect that there's any public need for this purpose.  The only evidence is it's for the purpose of [*348] servicing these twenty-four properties and that is the evidence that has come into the effect that that's why it was done. And for that reason, the Court finds it's being acquired for a private purpose and will dismiss the petition."

n1 Back in the horse and buggy days of 1853 the General Assembly enacted Ch. 220 of the Acts of that year.  Section 11, now codified as Code (1957, 1981 Repl.Vol.) Art. 25, § 145, provided relative to county commissioners that thenceforth "all roads which may be opened under the provisions of [that] act [] shall be at least thirty feet wide . . . ."£ Any such road was declared to be a public road.

   The County appealed to the Court of Special Appeals.  We issued a writ of certiorari prior to argument[***8] in the intermediate appellate court.

   The appellees at oral argument seemed to concede that public necessity has been shown but denied public use. Since, however, the terms "public necessity" and "public use" have both been discussed in the opinion of the trial judge and in the briefs of both the landowners and the County, we shall deal with both points.

   II

   In Murphy v. State Roads Comm'n, 159 Md. 7, 149 A. 566 (1930), Judge Offutt said for the Court:

   "Ordinarily the question of whether a proposed highway is required by public necessity is legislative rather than judicial (Elliott on Roads and Streets, sec. 213; Nichols on Eminent Domain, secs. 333, 334); and while the question as to whether the proposed use is public in its nature may ultimately become a judicial one (Ibid., sec. 52; Van Witsen v. Gutman, 79 Md. 405 [29 A. 608]), when the Legislature has determined that a proposed improvement is public in its nature, the prima facie presumption is that the use thus declared to be public is public.  Nichols, Eminent Domain, sec. 52.  So too when the Legislature has determined that a proposed use is public in character, it may delegate, to a board, [***9] commission, or other agency, power to ascertain and determine what property is needed for that use, and the decision of such an agency as to the public necessity for taking particular property is not subject to judicial review unless its decision is so oppressive, arbitrary or unreasonable as to [*349]suggest bad faith.  Nichols, Eminent Domain, secs. 333, 334."£ 159 Md. at 15.
 
See also Free State Realty v. City of Balto., 279 Md. 550, 558-59, 369 A.2d 1030 (1977); Sollins v. Baltimore County, 253 Md. 407, 412, 252 A.2d 819 (1969); Kline v. City of Rockville, 245 Md. 625, 630, 227 A.2d 217 (1967); Wash. San. Comm. v. Santorios, 234 Md. 342, 345-46, 199 A.2d 206 (1964).

   There is not the slightest evidence in this case that the decision to condemn the land in question is so oppressive, arbitrary or unreasonable as to suggest bad faith.  In Santorios, citing Johnson v. Gas & Electric Co., 187 Md. 454, 462, 50 A.2d 918 (1947), Judge Horney observed for the Court, "[I]t has been said that the necessity for the taking does not have to be absolute: [**319] all that is required is that it be reasonable under the circumstances."£ 234 Md. at 346.[***10] We hold that public necessity was established.

   III

   In Riden v. Philadelphia, B. & W. R.R., 182 Md. 336, 35 A.2d 99 (1943), Judge Delaplaine said for the Court:

   "In this State we have held that the words 'public use,' as written in our Constitution, mean use by the public.  We hold this view for three reasons: (1) It is the primary and more commonly understood meaning of the words.  (2) At the time of the adoption of the second Constitution of 1851, the first of our organic instruments to contain a limitation upon the power of eminent domain, as well as the third Constitution of 1864, and our present Constitution of 1867, there was no practice in Maryland showing a contemporaneous construction that the term 'public use' imported public benefit.  (3) Our definition furnishes a more definite guide for the courts.  Arnsperger v. Crawford, 101 Md. 247, 61 A. 413; Dobler v. Mayor and City Council of Baltimore, 151 Md. 154, 164, 134 A. 201; Niles, Maryland Constitutional Law, 192-201."£ 182 Md. at 342, 35 A.2d 99.
 
[*350] A somewhat similar statement, quoting from Lewis, Law of Eminent Domain, § 158, was made in Arnsperger v. Crawford, 101 Md. 247, [***11] 252-53, 61 A. 413 (1905), to the effect that "public use means the same as use by the public."£ (Emphasis in original.)£ Judge Pearce said for the Court of the words "public use":
 
"There will be found two different views of the meaning of these words which have been taken by the Courts; one, there must be a use, or right of use by the public, or some limited portion of the public; the other that they are equivalent to public utility or advantage.  If the former is the correct view, the Legislature and the Courts have a definite, fixed guide for their action; if the latter is to prevail, the enactment of laws upon this subject will reflect the passing popular feeling, and their construction, will reflect the various temperaments of the Judges, who are thus left free to indulge their own views of public utility or advantage.  We cannot hesitate to range this Court with those which hold the former to be the true view.  We agree with the Pennsylvania Court (Farmers Market Co. v. Phil. R.R. Co., 10 Pa.Co.Ct. 25) that 'the test whether a use is public or not, is whether a public trust is imposed upon the property, whether the public has a legal right to the use, [***12] which cannot be gainsaid, or denied, or withdrawn at the pleasure of the owner.'"£ 101 Md. at 253, 61 A. 413 (emphasis in original).
 
The issue of public use has most recently been considered by us in Pr. George's Co. v. Collington, 275 Md. 171, 339 A.2d 278 (1975). We there found an industrial park to be a public use.

   There can be no dispute of the fact that condemnation of private property for a public highway or road is a proper public use. See, e.g., Bond v. M. & C.C. of Baltimore, 116 Md. 683, 82 A. 978 (1911). A determination that such is a public use is not affected by the fact that although the public may have the right to use a street it seldom does.  A discussion of the limited use of roads with regard to [*351] public use is contained in 26 Am.Jur.2d Eminent Domain § 46 (1966), which states:
 
"If the public has the right to use the way at pleasure and on equal terms, the way is a public one, even though in reality it is seldom used . . . .  The public character of a road does not depend on the degree of public necessity or convenience that requires it, the extent to which the public uses it, or the number of persons that it accommodates. [***13] If it is intended for the use of the public and may be traveled by any person who desires to use it, the power of eminent domain may properly be exercised, even though an individual or a corporation may be deeply interested in, or benefited by, the opening of the way, it accommodates some [**320] individuals more than others, it may accommodate only a limited portion of the public or even only a single family, it is to be used merely for pleasure purposes, or it is subject to certain conditions as to its use. . . ."£ Id. at 701-02.
 
See also 29A C.J.S. Eminent Domain § 33, at 270-71 (1965); 2A Nichols, The Law of Eminent Domain, §§ 7.07, 7.22 [1] (Sackman ed. 1983).

   Arnsperger, 101 Md. 247, 61 A. 413, and Van Witsen v. Gutman, 79 Md. 405, 29 A. 608 (1894), relied upon by the landowners in support of their contention that this acquisition is for an impermissible private use, are readily distinguishable.  In Arnsperger the Court declared unconstitutional a statute which permitted condemnation of land for a private outlet to a farm.  In Van Witsen the Court held that the City of Baltimore could not close up an alley for the sole purpose[***14] of permitting a property owner whose land abutted on both sides of the alley to build in the bed of the alley when this would have the effect of denying other landowners a right of access over that portion of the alley to a public street.

   It is suggested that because this street is a dead end or cul de sac that this in some manner prevents it from [*352] being for public use. This issue is considered in 2A Nichols, The Law of Eminent Domain, § 7.22[1] which states:
 
"[I]t is no legal objection that a proposed highway will be a cul de sac, or that it will lead to the residence or place of business of but one individual, for the public may desire to visit or do business with him.  If a road is to be open for public travel the purpose for which the public may wish to travel is not material, and land may be taken by eminent domain for a road which is intended solely for driving for pleasure and recreation or to furnish a view of beautiful natural scenery.  Streets are frequently laid out for the purpose of opening up private land, but if a street is to be open to public travel it is well settled that it is for the public use, although it is of especial convenience[***15] or advantage to certain individuals, or even if its sole or principal object is to enhance the value of the land through which it passes . . . ."£ Id. at 7-129 to -132.
 
See also 29A C.J.S. Eminent Domain § 33, at 273; 26 Am.Jur.2d Eminent Domain § 46, at 702; 1 Lewis, Law of Eminent Domain § 259, at 512-13 (3d ed. 1909); In re Knolls Crescent, Borough of Bronx, 117 N.Y.S.2d 835, 836-37 (1952); The People v. Kingman, 24 N.Y. 559, 568-69 (1862); Highway Commission v. Thornton, 271 N.C. 227, 243, 156 S.E.2d 248 (1967).

   This Court found public uses in New Cent. Co. v. George's Creek Co., 37 Md. 537 (1873) (Only use of the railroad spur was to transport coal for private business purposes.); Pitznogle v. Western Md. R.R., 119 Md. 673, 87 A. 917 (1913) (Railroad condemned land containing a private road for the purpose of constructing a railroad line; the Court permitted the railroad also to condemn a portion of an adjacent tract, partly for a railroad line and partly to build a substitute private road for the benefit of those persons entitled to use the private road which it had closed.); Marchant v. Baltimore, 146 Md. 513, 126 A. 884[***16] (1924) (Land condemned for the construction of wharves, piers, docks, warehouses, and buildings for rental to private users.), and [*353] Riden, 182 Md. 336, 35 A.2d 99 (Land condemned for spur from a railroad's main line to a racetrack.).

   The road here when completed would be just as much a part of the public road system of Anne Arundel County as any other road in that county.  The public would be entitled to use it to go to and from the businesses and residences located on it.  We hold that the trial judge erred when he found that the road here was not for a public use.

   JUDGMENT REVERSED AND CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION; APPELLEES TO PAY THE COSTS. 

William COSTELLO v. Elmer V. STAUBITZ 
No. 3, September Term, 1983
 
Court of Appeals of Maryland
 
300 Md. 60; 475 A.2d 1185; 1984 Md. LEXIS 293

 June  7, 1984

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County - Judge James L. Wray) 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 FURTHER PROCEEDINGS IN ACCORDANCE WITH THIS OPINION.  RESPONDENT TO PAY COSTS.

CORE TERMS:  claimant, fence, adverse possession, visible, erected, disputed property, predecessor, line of demarcation, enclosure, unequivocal, delineated, acts of ownership, acquired title, record owner, actually occupied, party claiming, delineating, additionally, shed, statutory period, immaterial, vest, barbed wire, triangle, bounded, farmer, cattle, boat, adverse possessor, color of title

COUNSEL: Thomas C. Codd and Downie D. Codd, both of Severna Park, Maryland, for appellant.

   Paul M. Anderton, Annapolis, Maryland, for appellee.

JUDGES: Murphy, C.J., and Smith, Eldridge, Cole, Davidson, Rodowsky and Couch, JJ.

OPINIONBY: DAVIDSON

OPINION: [*63] [**1186] This case concerns the appropriate inferences to be drawn from the existence of a visible line of demarcation when determining a claim of adverse possession. More particularly, the question presented is whether a fence erected by a predecessor in interest to the record owner of real property constitutes some evidence of the claimant's adverse possession.

   In 1955, the respondent, Elmer V. Staubitz (claimant), acquired title to lot 232 located at Whitehall Beach.  A residence, built between 1925 and 1935 by the claimant's[***2] predecessor in interest, his father, was located on the lot.

    In October 1979, the petitioner, William Costello, and his wife, Janice F. Costello (record owners), acquired title to an undeveloped lot, lot 233.  Lot 233 is adjoined on the east by lot 232.  Both lots 232 and 233 are bounded on the north by Red Cedar Road and on the south by the Whitehall River.

   In April 1980, the record owners employed a surveyor, who determined the precise eastern boundary of lot 233 and placed stakes along the deeded property line.  As a result, it became apparent that an existing barbed wire fence, extending from Red Cedar Road to the Whitehall River, which had been erected in about 1940 by a predecessor in interest to the record owners, was not located along the eastern boundary of lot 233.  Rather, it traversed the southeastern corner of lot 233 and the northwestern corner of lot 232.  As a result, two triangles of land were formed.  One triangle, located on lot 232, was bounded on the east by the barbed wire fence, on the north by Red Cedar Road, and on the west by the staked property line.  The other triangle, located on lot 233, was bounded on the east by the staked property line, on the south[***3] by the Whitehall River, and on the west by the barbed wire fence. This latter triangle, located on lot 233, constitutes the disputed property.

   On 17 September 1980, in the Circuit Court for Anne Arundel County, the claimant filed a suit to quiet title, asserting that he had acquired title to the disputed property [*64] by adverse possession. The record owners filed an answer stating that they had "a claim of record to the property in question," and that they were actually asserting "an outstanding claim to said land."

   At a bench trial, the claimant, himself, presented the only evidence relating to the [**1187] erection of the fence. He stated that the fence was erected by a farmer, who was the record owners' predecessor in interest.  Additionally, the claimant stated that the farmer's sole purpose for erecting the fence was to confine his cattle to his own property, lot 233, and to prevent them from straying onto the adjoining property, lot 232.

   Moreover, there was some evidence presented intended to show that the claimant had acquired title to the disputed property by adverse possession. The claimant and several neighbors testified that they believed that the claimant [***4]owned all of the land up to the fence. Additionally, a portion of the disputed property was left in its natural state and was used by the claimant as an animal sanctuary for rabbits, squirrels, and birds.  In the 1940s, the claimant and his predecessor in interest, his father, planted several poplar tree cuttings on the disputed property along the fence. Two of these trees are still standing.  In the 1950s, a cement and concrete block firepit was constructed that was used for burning rubbish and for barbecues.  This firepit was not permanently affixed to the ground and was occasionally moved from one location to another on the disputed property. Moreover, in the 1950s, a shed, alternatively described as a "boathouse," "outhouse," or a combination thereof, was constructed on the disputed property. The claimant and several neighbors testified that the shed had continuously remained in the same location since its construction. n1

n1 This evidence was contradicted by a photogrammetrist who testified on behalf of the record owners that, in his opinion based on aerial photographs taken of the disputed property in 1962 and 1963, no shed existed on the disputed property during those years.  The photogrammetrist additionally testified that a shed was located on the disputed property subsequent to 1970.

[***5]

   [*65] Additionally, there was evidence to show that for approximately five years during the 1950s, the claimant had used a portion of the disputed property as a site for a boat railway, consisting of a set of logs used to roll boats from the water onto shore.  Moreover, in the 1970s, the claimant extended his pier so that a portion of it was located in an area of the water bounded by an extension of the boundaries of the disputed property. Finally, since approximately 1975, the claimant utilized a portion of the disputed property as a burial plot for a pet.

   The trial court issued a memorandum opinion in which it found that the fence erected by the record owners' predecessor in interest was erected as a boundary between lots 232 and 233, and delineated the extent of the claimant's adverse possession. More particularly, the trial court said:
 
"[I]t is also uncontroverted that the fence upon which [the claimant] bases his claim was originally erected as a boundary between lots 232 and 233.  The testimony at trial revealed that the fence was installed by [the record owners' predecessor in interest] to keep their cows from going on to [the claimant's] father's[***6] property.  It also revealed that the fence was intended, and did serve as the boundary of the two lots."£ (Emphasis added.)
 
With respect to actual possession, the trial court said:

   "To show actual possession so as to give rise to the acquisition of title by adverse possession there must be some unequivocal act or acts of ownership on the land itself. . . .  [The claimant] (at the least) planted trees, buried his pets, built (and moved) an outdoor fireplace and maintained a boat and boathouse within the disputed property. In every sense of the term, [the claimant] treated the disputed land as his own."
 
After determining that all of the other elements of adverse possession were present, the trial court said:

   [*66] "In this case [the claimant] used the land as his father had until his life circumstances caused him to change the character of the home from a vacation [**1188] home to a residence.  The fence erected as a boundary to his property delineated the extent of his possession.  This Court is of the opinion that [the claimant] did acquire title to the disputed strip of land by adverse possession."£ (Emphasis added.)
 
On 30[***7] November 1981, the trial court entered a final order stating that the claimant had acquired title to the disputed property by adverse possession.

   An appeal was filed to the Court of Special Appeals.  In determining that the claimant had acquired title to the disputed property by adverse possession, the Court of Special Appeals, in an unreported per curiam opinion, Costello v. Staubitz, No. 57, September Term, 1982, filed 16 November 1982, said:

   "The court below found that the fence, which was constructed to keep cattle from going onto the [claimant's] property, was intended and did serve as a boundary between the two lots.  [The record owners, relying upon Storr v. James, 84 Md. 282, 35 A. 95 [965] (1896)], suggest that the demarcation of the boundary by the fence is irrelevant because it was not erected by the party claiming title by adverse possession.

   . . .
 
[Claimant] . . . cannot assert as his own unequivocal act of ownership the erection of a fence by [record owners'] predecessor in title, the party against whom the claim is asserted.  This rule, however, has to a great extent given way to a modern trend which simply suggests that where visible [***8] boundaries have existed for the statutory period, title will vest in the adverse possessor where there is evidence of unequivocal acts of ownership; it is immaterial that possession was due to inadvertence, ignorance, or mistake and actual enclosure is not necessary to establish title.  Freed v. Cloverlea Citizens Association, Inc., [*67] 246 Md. 288, 228 A.2d 421 (1967). It is immaterial, therefore, that a mistake was originally made by [the record owners' predecessor in interest] in establishing the cattle fence as the boundary line.

   "There was sufficient evidence before the court below to conclude that the fence and tree line existed as a visible boundary for the statutory period and that [the claimant's] maintenance of the firepit, shed, pet cemetery, boat and railway constituted unequivocal acts of ownership sufficient to put . . . the record owner on notice of the encroachment."£ (Emphasis added.)
 
The Court of Special Appeals affirmed the judgment of the trial court.

   A petition for a writ of certiorari was filed that we granted.  We shall reverse the judgment of the Court of Special Appeals.

   To establish title by adverse possession, the claimant[***9] must show possession of the claimed property for the statutory period of 20 years. n2£ Such possession must be actual, open, notorious, exclusive, hostile, under claim of title or ownership, and continuous or uninterrupted.  East Washington Railway Co. v. Brooke, 244 Md. 287, 294, 223 A.2d 599, 603-04 (1966); Goen v. Sansbury, 219 Md. 289, 295, 149 A.2d 17, 21 (1959); Peper v. Traeger, 152 Md. 174, 181, 136 A. 537, 540 (1927); Baker v. Swan, 32 Md. 355, 361 (1870). The burden of proving title by adverse possession is on the claimant. Hungerford v. Hungerford , 234 Md. 338, 340, 199 A.2d 209, 210-11 (1964); White v. Hardisty, 220 Md. 152, 158, 151 A.2d 764, 768 (1959); Louis Sachs & Sons v. Ward, 182 Md. 385, 389, 394, 35 A.2d 161, 163, 165 (1943).

n2 Md.Code (1974, 1980 Repl.Vol.) § 5-103 of the Courts and Judicial Proceedings Article provides in pertinent part:
"§ 5-103.  Adverse possession . . . .
 
   "(a) . . . Within 20 years from the date the cause of action accrues, a person shall:

   "(1) File an action for recovery of possession of a corporeal freehold or leasehold estate in land; or

   "(2) Enter on the land."

[***10]

   [*68] [**1189] Generally, adverse possession without color of title extends only to the land actually occupied. Rogers v. Burnopp, 263 Md. 357, 363, 283 A.2d 367, 371 (1971); Hines v. Symington, 137 Md. 441, 444, 112 A. 814, 816 (1921); Hackett v. Webster, 97 Md. 404, 408, 55 A. 480, 481 (1903). However, where visible boundaries have existed for the statutory period of limitations, if there is evidence of unequivocal acts of ownership, title will vest in the claimant, not only to land actually occupied, but rather to all of the land delineated by the visible boundary.  Rogers, 263 Md. at 363, 283 A.2d at 370-71; Supreme Builders, Inc. v. Redmiles, 250 Md. 446, 455, 243 A.2d 500, 505 (1968); Mauck v. Bailey, 247 Md. 434, 441-42, 231 A.2d 685, 690 (1967); Freed v. Cloverlea Citizens Ass'n, Inc., 246 Md. 288, 297, 228 A.2d 421, 427 (1967); Blickenstaff v. Bromley, 243 Md. 164, 172, 220 A.2d 558, 562 (1966); Bishop v. Stackus, 206 Md. 493, 499, 112 A.2d 472, 474 (1955); Ridgely v. Lewis, 204 Md. 563, 567, 105 A.2d 212, 213 (1954); Ervin v. Brown, 204 Md. 136, 143, 102 A.2d 806, 810 (1954); Tamburo v. Miller, 203 Md. 329, 336, 100[***11] A.2d 818, 821 (1953).

   Here, the claimant contends that an existing fence constitutes a visible boundary and that because of unequivocal acts of ownership, title to all of the disputed property, the land delineated by that visible boundary, vested by adverse possession. In opposition it is contended that the fence does not constitute a boundary and that, consequently, adverse possession extended only to such land, if any, as was actually occupied by the claimant. We agree with the latter contention.

   In Storr v. James, 84 Md. 282, 35 A. 965 (1896), this Court considered the question of the appropriate inferences to be drawn from the existence of a visible line of demarcation, a fence, when determining a claim of adverse possession. There, Chief Judge McSherry, writing for a unanimous court, stated:
 
"The instruction complained of told the jury that if they found the land in dispute was within the lines of the [record owner's] deeds, and that if the [record owner] for [*69] his own purposes erected a fence within his lines, that then such 'fence is not an enclosure of the [claimant] and does not afford evidence of adverse possession in the [claimant] by enclosure.'£ [***12] This is self-evident.  An actual enclosure though not necessary to prove possession (Code, Art. 75, sec. 76) is, when erected by a party relying on a title by prescription, some evidence tending to show the character of his claim. It is his own affirmative act.  It is given effect as evidence merely because it is his and no one else's act.  It defines the extent of his claim and marks the outlines of his actual holdings.  But where some one else under whom the [claimant] does not claim and with whom the [claimant] is not in privity of estate, erects a fence 'for his own purposes,' within his own lines, obviously such a fence is, of itself, not an enclosure of the [claimant], and its construction is referable to no act or claim of the [claimant] at all, and consequently cannot be relied on by him to show an adverse possession in himself by enclosure. This is necessarily so when the hypothesis of the prayer sets forth, as in this case, that the fence was erected by the [record owner] within his own lines 'for his own purposes.'£ If the jury found that the fence was erected by the [record owner] for his own purposes, then they could not conclude that it was an enclosure[***13] of the [claimant] or that it afforded evidence of possession by the [claimant] by enclosure."£ Storr, 84 Md. at 290-91, 35 A. at 967.
 
This case establishes that in determining a claim of adverse possession, the appropriate inference to be drawn from the existence of a fence is dependent upon whether the record owner or the claimant erected the fence and the purpose for which the fence was erected. The existence of a fence, erected by the record owner within the record owner's land and for the record owner's own purposes, does not support an inference that the fence is a visible boundary [**1190] delineating the extent of a claimant's adverse possession. It, therefore, does not constitute evidence of the claimant's adverse possession. n3£ [*70] But see Ervin v. Brown, 204 Md. 136, 144, 102 A.2d 806, 810 (1954).

n3 Courts in some other jurisdictions that have considered similar questions have reached the same result.  See, e.g., Brown Paper Mill Co. v. Warnix, 222 Ark. 417, 419, 259 S.W.2d 495, 495 (1953); Hankey v. Van Scyoc, 338 Ill. 533, 536, 170 N.E. 749, 750 (1930); Dambach v. James, 587 S.W.2d 640, 643 (Mo.App.1979); Buchanan v. Nixon, 163 Tenn. 364, 370, 43 S.W.2d 380, 382 (1931); DeArman v. Surls, 618 S.W.2d 88, 91-92 (Tex.Civ.App.1981). But see, Darby v. Robbins, 409 So.2d 722, 725 (Ala.1982); Marvel v. Barley Mill Road Homes, Inc., 34 Del.Ch. 417, 424, 104 A.2d 908, 912 (1954). Illustrative is the case of Buchanan v. Nixon, 163 Tenn. 364, 370, 43 S.W.2d 380, 382 (1931), where the Supreme Court of Tennessee said:

   "The statute . . . which cuts off the right to recover lands unless suit is brought 'within seven years after the right of action has accrued,' may well be held to begin to run . . . from the time one enters and erects a fence over on an adjoining owner's land, although by mistake as to the true line; but this rule may not apply when the reverse is true; that is, where the erection is made on his own land by the adjoining owner within his true boundary without thought of fixing the line.  If A erects a wall or fence across or along his lot on any given line, whether one or twenty feet from the true boundary, without any purpose to fix a boundary line, it could hardly be insisted that he thereby sets in motion the running of the statute in favor of the adjoining owner to that part of A's land lying outside of his improvement."

[***14]

   In Tamburo v. Miller, 203 Md. 329, 100 A.2d 818 (1953), this Court, in determining the validity of a claim of adverse possession, considered the inference to be drawn from the existence of a visible line of demarcation, a fence, erected by a party claiming adverse possession. There, Judge Hammond, writing for a unanimous court, stated:

   "It has been said often in the earlier cases that where a land owner extends his fence, through inadvertence, ignorance or mistake, as to the location of the true boundary line, so as to embrace the land of a neighbor, but with no intention of claiming the area thus enclosed, adverse possession cannot be established because the holding of the extended area is neither adverse nor hostile to the true owner.  The modern trend and the better rule is that where the visible boundaries have existed for the period set forth in the Statute of Limitations, title will [*71] vest in the adverse possessor where there is evidence of unequivocal acts of ownership. In this view it is immaterial that the holder [adverse possessor] supposed the visible boundary to be correct or, in other words, the fact that the possession was due to inadvertence, [***15] ignorance, or mistake, is entirely immaterial.  In Jacobs v. Disharoon, 113 Md. 92, 77 A. 258, the court held that one who continuously asserts ownership within an enclosure for more than twenty years in exclusive, notorious and actual hostile possession, would not be required to surrender the title by adverse possession merely because of his possession by mistake.  The distinction seems to be that if the limits of the occupation be fixed with the intention of claiming them as the boundary line, the statute runs; but if the occupation and delineation of the boundaries appear to be merely provisional, with the intent to claim them as boundaries, if they are found to be proper boundaries, then the statute does not run."£ Tamburo, 203 Md. at 336, 100 A.2d at 821 (citations omitted) (emphasis added).
 
This case demonstrates that in determining a claim of adverse possession, the appropriate inference to be drawn from the existence of a visible line of demarcation, a fence, erected by a party claiming adverse possession is dependent upon the purpose for which the fence was erected. A fence erected by a claimant for the purpose of claiming it as a boundary only if it is[***16] in fact coincident with the actual boundary does not support an inference that it is a visible boundary delineating the extent of the claimant's adverse possession and, therefore, does not constitute evidence of the [**1191] claimant's adverse possession. However, a fence erected by a claimant for the purpose of claiming it as a boundary supports such an inference and, therefore, constitutes some evidence of the claimant's adverse possession, notwithstanding that the claimant's belief that the fence was in fact coincident with the actual boundary was erroneous.  Similar results have been reached in other cases. [*72]E.g., Supreme Builders, Inc., 250 Md. at 455, 243 A.2d at 505 (bushes); Mauck, 247 Md. at 441-42, 231 A.2d at 690 (fence); Bishop, 206 Md. at 499, 112 A.2d at 475 (garage, driveway, shrubs).

   In Ridgely v. Lewis, 204 Md. 563, 105 A.2d 212 (1954), this Court, in determining the validity of a claim of adverse possession, considered the impact of the existence of a visible line of demarcation, a fence, where there was no evidence to show by whom and for what purpose the fence was erected. This Court treated the fence as a visible boundary.  There, [***17] this Court said:
 
"[I]n the instant case, there is to be found that there was nothing provisional in the holding and use of Parcel A.  [The claimants] and their predecessors in title undoubtedly believed the land to be theirs and held it and used it as theirs for the necessary period.  There was a continuous fencing plainly to be observed from a nearby road and the land was used both for pasture and for the planting of crops."£ Ridgely, 204 Md. at 567, 105 A.2d at 213-14.
 
The Court then held that as a result of unequivocal acts of ownership, the claimants had acquired title by adverse possession to all of the land delineated by the visible boundary, the fence. This case demonstrates that the existence of a visible line of demarcation, a fence, in the absence of evidence to show by whom and for what purpose it was created, supports an inference that it is a visible boundary delineating the extent of a claimant's adverse possession. It, therefore, constitutes some evidence of the claimant's adverse possession. Similar results have been reached in other cases.  E.g., Rogers, 263 Md. at 362-63, 283 A.2d at 370-71 (right-of-way); Freed, 246 Md. at 291, [***18] 297-98, 228 A.2d at 424, 427-28 (natural ditch); Blickenstaff, 243 Md. at 172, 220 A.2d at 562 (road).

   The following general principles emerge from this Court's previous decisions in adverse possession cases in which a visible line of demarcation was a factor: 
[*73] 1) The existence of a visible line of demarcation ordinarily does not constitute evidence of adverse possession when:
a) it was created by a record owner, for the record owner's own purposes, within the record owner's land, Storr, 84 Md. at 290-91, 35 A. at 967; or
b) it was created by a party claiming title by adverse possession for the purpose of claiming the visible line of demarcation as a boundary only if it is in fact coincident with the actual boundary, Tamburo, 203 Md. at 336, 100 A.2d at 821.
2) The existence of a visible line of demarcation ordinarily constitutes some evidence of adverse possession when:
a) it was created by a party claiming title by adverse possession for the purpose of claiming the visible line of demarcation as a visible boundary delineating the extent of the claimed adverse possession, Tamburo, 203 Md. at 336, 100 A.2d at 821; or
b) there is no evidence[***19] to show by whom and for what purpose the line of demarcation was created, Ridgely, 204 Md. at 566-67, 105 A.2d at 212-13.
 
We shall apply these principles in this case.

   Here the record shows that the claimant was without color of title and claimed all of the land delineated by the existing barbed wire fence. The only evidence presented relating to the fence was that it was erected by a farmer who was the record owners' predecessor in interest.  The farmer's sole purpose for erecting the fence was to confine his cattle to his own [**1192] property, lot 233, and to prevent them from straying onto the adjoining property, lot 232. Thus, the record shows that the fence on the disputed property was erected by the record owners' predecessor within the predecessor's own boundaries and for the predecessor's own purposes.  Under these circumstances, the existing fence was not a visible boundary delineating the extent of [*74] the claimant's adverse possession. It, therefore, did not constitute evidence of adverse possession and was not an appropriate factor to be taken into account in determining the extent of the claimant's adverse possession. The trial court's finding[***20] that the fence was "originally erected as a boundary between lots 232 and 233" and was "intended and did serve as the boundary of the two lots" was unsupported by the record and, therefor, clearly erroneous.  Md.Rule 886.  Additionally, the trial court erred in concluding that the fence "delineated the extent of [the claimant's] possession" and that the claimant acquired title by adverse possession to all of the land delineated by the fence. Accordingly, the judgment of the Court of Special Appeals shall be reversed.

   Because the fence, although visible, did not constitute a boundary, the principle that unequivocal acts of ownership vest title in a claimant to all of the land delineated by a visible boundary is inapplicable.  Rather, the applicable principle is that the claimant, who was without color of title, is entitled to acquire title by adverse possession only to land actually occupied. The trial court did not make any finding as to what, if any, land was actually occupied by the claimant for the statutorily prescribed twenty-year period. Under these circumstances, the case shall be remanded for further proceedings in accordance with this opinion.

   JUDGMENT OF THE COURT[***21] 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 FURTHER PROCEEDINGS IN ACCORDANCE WITH THIS OPINION.

   RESPONDENT TO PAY COSTS. 

Ronald Hayes ELZA v. Susan ELZA 
No. 3, September Term, 1984
 
Court of Appeals of Maryland
 
300 Md. 51; 475 A.2d 1180; 1984 Md. LEXIS 294

 June  6, 1984

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

DISPOSITION: ORDER AWARDING CUSTODY TO APPELLEE VACATED; REMAND FOR FURTHER PROCEEDINGS IN CONFORMANCE WITH THE VIEWS EXPRESSED HEREIN; COSTS TO BE PAID BY APPELLEE.

CORE TERMS:  chancellor, custody, maternal, sex, child custody, minor child, custody proceeding, harmless, awarding custody, award of custody, sentence, duty, legislative intent, spouse, psychological, biological, ambiguity, abolished, abolish, See Acts, unambiguous language, live apart, guardianship, delineated, presently, guardians, devoted, nurture

COUNSEL: Ronald L. Spahn, Ellicott City, Maryland, for appellant.

   Thomas J. Aversa, Jr., Pasadena, Maryland, for appellee.

JUDGES: Murphy, C.J., Eldridge, Cole, Davidson, Rodowsky and Couch, JJ., and Morton, James C., Jr., Retired, Specially Assigned, J.

OPINIONBY: MORTON, JR.

OPINION: [*53] [**1181] The question we confront in this case is whether the chancellor in a child custody proceeding erred in basing his award of custody to the mother solely on the maternal preference presumption.  We conclude that reliance on this presumption contradicts the clear, unambiguous language of Maryland Code (1957, 1983 Repl.Vol.) Art. 72A, § 1, which states in pertinent part: "[I]n any custody proceeding, neither parent shall be given preference solely because [*54] of his or her sex." n1£ Therefore, we shall vacate the judgment below and remand the case for further proceedings in accordance with the[***2] following opinion.

n1 Neither party raised the issue whether application of the maternal preference doctrine in child custody proceedings violates this State's Equal Rights Amendment, embodied in Article 46 of the Maryland Declaration of Rights. Therefore, we will not address this question.  We note, however, that this case involves the same provision which was before this Court in Rand v. Rand, 280 Md. 508, 516, 374 A.2d 900 (1977) (clear language of Art. 72A, § 1 combined with adoption of the ERA mandated conclusion that "Child support awards must be made on a sexless basis.").

   Ronald and Susan Elza were married in December 1974.  They had one child, Shannon, who was born in March 1978.  Although both husband and wife originally were from the Glen Burnie area, during their marriage they lived in Montross, Virginia.  The parties were separated on [**1182] March 18, 1983, when Mrs. Elza, with Shannon, moved from the marital residence to her parents' residence in Riviera Beach, Maryland.

   Mrs. Elza filed[***3] a petition for custody of a minor child on May 31, 1983.  Mr. Elza subsequently filed an answer to the petition as well as a counter bill for custody of Shannon.  A hearing was held in the Circuit Court for Anne Arundel County on June 28, 1983, Judge Robert Heise presiding.  The testimony established that Mrs. Elza had not worked since her daughter's birth and had devoted her time to caring for the child.  Further, Mr. Elza, a 100% disabled veteran, was not employed but spent approximately forty hours a week in community-related activities.  He declared that if he were awarded custody, he would devote all of his time to Shannon's care.  In addition, there was evidence that the tension between her parents had affected Shannon in a physiological way, but that these symptoms had dissipated since Mrs. Elza had removed her from the marital home.  Moreover, there was evidence that although Shannon had been content in the home in Montross, Virginia, she was becoming adjusted to living at her grandparents with her mother.

   [*55] After all testimony had been introduced, the chancellor stated, "I can't find anything wrong with either mother or father . . . they are apparently both devoted[***4] to the child.  And . . . in a sense . . . interested in what's best for the child."£ Nevertheless, the chancellor concluded:

   "Both parties being equal here, I can't find that either party is not entitled to have the child.  I suppose I am old fashioned in one sense . . . but it still seems to me that if it's a five year old . . . all other factors being equal . . . that in that case, the child should go with the mother . . . .

   "But, as I understand the law, why, no preference is given to either party. It's just the Court's opinion that under the present conditions . . . we do know that the child has improved by being brought up here . . . but I have a hunch that that was because we got the two parties separated."
 
The chancellor signed a written order awarding custody of Shannon to Mrs. Elza on July 8, 1983.  Mr. Elza noted a timely appeal to the Court of Special Appeals.  Because of the important question raised, this Court granted a writ of certiorari prior to consideration by the intermediate appellate court.

   This Court set forth the boundaries of appellate review applicable to child custody cases in Davis v. Davis, 280 Md. 119, 372 A.2d 231, cert. denied, [***5]434 U.S. 939, 98 S.Ct. 430, 54 L.Ed.2d 299 (1977). In that case, we examined the extent to which Maryland Rule 886 (applicable to this Court) and Rule 1086 (applicable to the Court of Special Appeals), which govern the review of cases tried by a court without a jury, control in child custody disputes. Our analysis resulted in the conclusion that three distinct standards of appellate review apply to such matters.  They are as follows:
 
"When the appellate court scrutinizes factual findings, the clearly erroneous standard of Rules 886 and 1086 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 [*56] 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."£ 280 Md. at 125-26, 372 A.2d 231 (footnote omitted).

   It is clear that, in the case presently before us, we are concerned with whether the trial court erred as a[***6] matter of law.  As delineated below, we conclude that the trial court erroneously relied on the maternal preference presumption as the basis for his award of custody of the minor child to the mother.  Therefore, unless we were to [**1183] determine that such error was harmless, we must under Davis remand the case for further proceedings in the trial court.

   The determination of which parent is to have custody of a minor child rests within the discretion of a chancellor in equity.  As this Court has stated numerous times, in exercising this authority the chancellor must be guided by what he believes would promote the child's best interests.  See, e.g., Kemp v. Kemp, 287 Md. 165, 170, 411 A.2d 1028 (1980); Stancill v. Stancill, 286 Md. 530, 534, 408 A.2d 1030 (1979); Ross v. Hoffman, 280 Md. 172, 174-75, 372 A.2d 582 (1977); Krebs v. Krebs, 255 Md. 264, 266, 257 A.2d 428 (1969). Indeed, in custody disputes, resolution of the best interests of the child is of transcendent importance.  See, e.g., Nagle v. Hooks, 296 Md. 123, 128, 460 A.2d 49 (1983); Ross, 280 Md. 175, 372 A.2d 582.

   In custody disputes arising prior to the divorce, as in the instant case, [***7]the chancellor must adhere not only to the best interests of the child standard, but also to the language and purpose of Art. 72A, § 1.  This provision was first enacted in 1929.  At that time, the section stated in pertinent part:

   "The father and mother are the joint natural guardians of their minor child and are equally charged with its care, nurture, welfare and education.  They shall have equal powers and duties, and neither parent has any right [*57] superior to the right of the other concerning the child's custody . . . .  Where the parents live apart, the court may award the guardianship of the child to either of them."£ Acts of 1929, ch. 561, § 1.
 
Whereas the language, but not the import, of the first sentence in § 1 was amended by Acts of 1951, ch. 678, § 1, and Acts of 1973, ch. 651, § 33, the language of the second sentence has never been altered.  Moreover, the intent of the General Assembly with respect to the equal right of both parents to custody of their minor child was reiterated by an amendment in 1974 to the third above-quoted sentence. See Acts of 1974, ch. 181, § 1.  The section presently states:

   "The father and mother are the joint[***8] natural guardians of their child under eighteen years of age and are jointly and severally charged with its support, care, nurture, welfare and education.  They shall have equal powers and duties, and neither parent has any right superior to the right of the other concerning the child's custody . . . .  Where the parents live apart, the court may award the guardianship of the child to either of them, but, in any custody proceeding, neither parent shall be given preference solely because of his or her sex."£ (Emphasis added to illustrate language of amendment.)

   Despite the clear and unambiguous language of Art. 72A, § 1 mandating equal treatment of parents with respect to determining who is to have custody, Maryland courts have consistently expressed a preference for awarding the custody of young children to the mother.  This phenomenon is known as the "maternal preference" doctrine.  The Court in Oberlander v. Oberlander, 256 Md. 672, 261 A.2d 727 (1970), delineated the principle as follows: "In determining what is the best interest of the child, it is entirely proper for the trial court to consider . . . the general rule that the custody of a child of tender years should[***9] ordinarily be awarded to the mother."£ 256 Md. 676, 261 A.2d 727. To similar effect is the Court's statement in Kauten v. Kauten, 257 Md. 10, 11, 261 A.2d 759 (1970), that "it will be a [*58] rare occurrence when a young child will be taken from its mother if she is a fit person and all other things are equal."£ Numerous other decisions of this Court have at least recognized, if not applied, this presumption.  See, e.g., Cornwell v. Cornwell, 244 Md. 674, 678-79, 224 A.2d 870 (1966); Palmer v. Palmer, 238 Md. 327, 331, 207 A.2d 481 (1965); Glick v. Glick, 232 Md. 244, 248, 192 A.2d 791 (1963); Alden v. Alden, 226 Md. 622, 624, 174 A.2d 793 (1961); Hild v. Hild, 221 Md. 349, 357, 157 A.2d 442 (1960); McCabe v. [**1184] McCabe, 218 Md. 378, 383, 146 A.2d 768 (1958); Oliver v. Oliver, 217 Md. 222, 228, 140 A.2d 908 (1958); Casey v. Casey, 210 Md. 464, 473-74, 124 A.2d 254 (1956); Townsend v. Townsend, 205 Md. 591, 596, 109 A.2d 765 (1954); Trudeau v. Trudeau, 204 Md. 214, 218, 103 A.2d 563 (1954).

   This Court has not had occasion to consider the efficacy of the maternal preference doctrine since the General Assembly amended Art. 72A, [***10] § 1 in 1974.  The Court of Special Appeals, however, in McAndrew v. McAndrew, 39 Md.App. 1, 382 A.2d 1081 (1978), determined that the effect of the 1974 amendment was to abolish the presumption.  In McAndrew, the court noted that the legislation embodying the amendment was entitled "An Act concerning Custody of Children -- No Preference to Either Spouse."£ 39 Md.App. at 8, 382 A.2d 1081. See Acts of 1974, ch. 181, § 1.  The court then reasoned as follows:

   "At the time this Act was passed, there was no preference of either spouse in a custody proceeding, based on sex, other than the maternal preference.  It was, therefore, that maternal preference, being the only sex based preference then established in the law, that the General Assembly intended to abolish. Unless the 1974 amendment had that effect, it had none at all; and we will not presume that the Legislature intended to enact a meaningless statute in so important an area.  Accordingly, we conclude that, since July 1, 1974, the maternal preference has been abolished by statute in child custody cases."£ 39 Md.App. at 8, 382 A.2d 1081 (footnote omitted).
 
 [*59] After noting that a determination of the[***11] child's best interests requires an evaluation of biological and psychological differences between the parents, the needs of the particular child, and the relationship of each parent to the child, the court stated that the impact of its holding merely was as follows: "A parent is no longer presumed to be clothed with or to lack a particular attribute merely because that parent is male or female."£ 39 Md.App. at 9, 382 A.2d 1081. In conclusion, the court in McAndrew rejected the notion that the maternal preference doctrine should be used as a "tie-breaker" when the chancellor is confronted with two fit and proper parents.  39 Md.App. 9, 382 A.2d 1081.

   We find the reasoning of the court in McAndrew persuasive.  Further, in construing a statute, courts are bound to ascertain and promote the legislative intent. To discharge this duty a court must consider the legislative language given its natural and ordinary meaning.  If there is no ambiguity in the language of a statute, then there generally is no need to look beyond that language to determine the legislative intent. See, e.g., Hurst v. V & M of Virginia, 293 Md. 575, 578, 446 A.2d 55 (1982); Rome v. Lowenthal, 290 [***12]Md. 33, 41, 428 A.2d 75 (1981); Department of State Planning v. Hagerstown, 288 Md. 9, 14-15, 415 A.2d 296 (1980); Police Commissioner v. Dowling, 281 Md. 412, 418-19, 379 A.2d 1007 (1977). The 1974 amendment to Art. 72A, § 1, by providing that "neither parent shall be given preference solely because of his or her sex," clearly states the intent of the General Assembly to eradicate sex as a factor in child custody proceedings.  There is neither ambiguity nor obscurity with respect to the meaning of any words in this phrase. Therefore, we hold that the maternal preference doctrine is abolished in this State because it permits an award of custody to be made solely on the basis of the mother's sex.

   It follows from the above analysis that, in awarding custody to Mrs. Elza, the chancellor below applied an invalid legal principle.  A review of the record of the hearing [*60] demonstrates that the chancellor believed each parent would be a proper and fit custodian.  Nevertheless, he granted custody to Mrs. Elza because "it's a five year old . . . all other factors being equal . . . that in that case, the child should go with the mother."£ Indeed, the record establishes that[***13] this was the only reason expressed for awarding custody of Shannon to Mrs. Elza.  Therefore, it is clear [**1185] that the error in this case is not harmless and the case must be remanded for further proceedings in the trial court.

   On remand, the chancellor shall explicate more fully the reasons for his decision.  In evaluating what would be in the child's best interests, the chancellor shall consider, among other factors, Shannon's needs, the relationship of each of her parents to her, and the effect of the biological as well as psychological differences between her parents on her welfare.  Given that additional information will undoubtedly be available to the chancellor when he again presides over this custody proceeding, we express no opinion concerning the ultimate resolution of this controversy.

   ORDER AWARDING CUSTODY TO APPELLEE VACATED; REMAND FOR FURTHER PROCEEDINGS IN CONFORMANCE WITH THE VIEWS EXPRESSED HEREIN; COSTS TO BE PAID BY APPELLEE. 

Emerson P. CURLEY, Jr. v. STATE of Maryland 
No. 35 (Adv.), September Term, 1983
 
Court of Appeals of Maryland
 
299 Md. 449; 474 A.2d 502; 1984 Md. LEXIS 272

 May  3, 1984

   PRIOR HISTORY: [***1]  
Certification of Issue from the Court of Special Appeals (Circuit Court for  Anne Arundel  County - Judge Eugene M. Lerner) JUDGE.

DISPOSITION: 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 WITH DIRECTIONS TO DISMISS.  COSTS TO BE PAID BY ANNE ARUNDEL COUNTY.

CORE TERMS:  nol, appearance, speedy trial, trial date, time period, charging document, prossed, nolle prosequi, arraignment, circumvent, indictment, postponement, prosecuting attorney, anew, motion to dismiss, defense counsel, recommendation, deadline, refiled, evade, first appearance, assigned, driving, tolling, trigger, toll, good cause shown, new trial date, time limit, manslaughter

COUNSEL: Domenic P. Iamele, Baltimore, Maryland (Levy & Iamele, Baltimore, Maryland, on brief), for appellant.

   Carmina Szunyog, Asst. Attorney General, Baltimore, Maryland (Stephen H. Sachs, Atty. Gen., Baltimore, Maryland, Warren B. Duckett, State's Attorney for Anne Arundel County and Scott Patterson, Asst. State's Attorney, both of Annapolis, Maryland, on brief), for appellee.

JUDGES: Murphy, C.J., and Smith, Eldridge, Cole, Davidson, Rodowsky, and Couch, JJ.  Davidson, J., concurs in the result.  Rodowsky, Judge, dissenting.

OPINIONBY: ELDRIDGE

OPINION: [*451] [**503] Under Maryland Code (1957, 1982 Repl.Vol., 1983 Cum. Supp.), Art. 27, § 591, implemented by Maryland Rule 746, the trial in a circuit court criminal prosecution must commence within 180 days of arraignment or the initial appearance of defense counsel, [***2] whichever occurs earlier, unless the time is extended beyond 180 days upon a showing of good cause and by order of the county administrative judge. n1£ See generally Farinholt v. State, 299 Md. 32, 472 [*452] A.2d 452 (1984); Calhoun v. State , 299 Md. 1, 472 A.2d 436 (1984); State v. Frazier, 298 Md. 422, 470 A.2d 1269 (1984), and cases there discussed.  The question presented by the instant case concerns the application of § 591 and Rule 746 where the prosecuting attorney files a nol pros prior to the expiration of the 180-day period and thereafter causes the same charge or charges to be refiled against the defendant.

n1 Art. 27, § 591, provides as follows:
 
"§ 591.  Setting date for trial; postponement.

   (a) 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 in which the matter is pending, shall set a date for the trial of the case, which date shall be not later than 180 days 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 good cause shown by the moving party and only with the permission of the administrative judge of the court where the matter is pending.

   (b) The judges of the Court of Appeals of Maryland are authorized to establish additional rules of practice and procedure for the implementation of this section in the various circuit courts throughout the State of Maryland."

   Rule 746 states:
 
"Rule 746.  Trial Date.

   a. General Provision.

   Within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 723, a trial date shall be set which shall be not later than 180 days after the appearance or waiver of counsel or after the appearance of defendant before the court pursuant to Rule 723.

   b. Change of Trial Date.

   Upon motion of a party made in writing or in open court and for good cause shown, the county administrative judge or a judge designated by him may grant a change of trial date."

[***3]

   I.

   Emerson Paul Curley, Jr., was charged by information with automobile manslaughter, homicide by motor vehicle while intoxicated, reckless driving, and other related offenses, all arising out of an accident in Anne Arundel County on July 19, 1980.  On September 22, 1980, counsel for Curley entered his appearance in the Circuit Court for Anne Arundel County.  Consequently, the 180-day time period for trial, under § 591 and Rule 746, expired on March 23, 1981. n2

n2 Actually the 180th day was March 21, 1981.  Because that date fell on a Saturday, however, Monday, March 23, is considered to be the 180th day for the purpose of § 591 and Rule 746.  See Rule 8 a.

   Trial was initially scheduled for November 20, 1980.  By letter of November 12, 1980, Curley's counsel requested a postponement of the November 20th trial date because of a scheduling conflict and requested that someone from the circuit court clerk's office contact him regarding a [**504] new trial date. n3£ In accordance with the request, the[***4] November 20th [*453] trial date was postponed.  Nevertheless, a new trial date was never assigned. n4

n3 The State has never claimed that Curley, by requesting a postponement of the November 20th trial date, either sought or expressly consented to a trial date in violation of § 591 and Rule 746.  Moreover, any such contention would be inconsistent with our cases.  See, e.g., Pennington v. State, 299 Md. 23, 29, 472 A.2d 447 (1984).

n4 The record does not disclose why a new trial date was not assigned. In fact, the record contains no documents or entries relating to the period between the November postponement and March 23, 1981.

   Next, on March 23, 1981, which was the last day for a trial of the case under § 591 and Rule 746, the prosecuting attorney entered a nol pros with respect to all of the charges against Curley.  In a letter to defense counsel dated March 23rd, the prosecuting attorney informed defense counsel of the nol pros, stating that "[t]his disposition was made based on the combined[***5] factors of the apparent inadmissibility of the blood alcohol content test as performed in this case and upon the request made of the State by the family of the victim." n5

n5 Curley had been a friend of the victim, who was a passenger in the automobile that Curley had been driving. The victim's parents had repeatedly requested, in writing, that the State not add to Curley's "anguish" over the incident.

   On June 26, 1981, the State filed a second criminal information charging Curley with the same offenses as had been charged under the prior information. n6£ Curley's attorney entered an appearance in this second case on July 8, 1981, and shortly thereafter he filed a motion to dismiss on the grounds (1) that Curley had been denied his constitutional right to a speedy trial and (2) that Art. 27, § 591, and Rule 746 were violated. n7

n6 In a June 26th letter to Curley's lawyer, the prosecuting attorney outlined the reason for refiling the charges as follows: "Upon an appeal to this office by the Anne Arundel County Police Department, the Case Screening and Evaluation Unit of the State's Attorney's Office has decided to re-charge Emerson Paul Curley, Jr., with automobile manslaughter and related offenses."

[***6] 

n7 Curley's attorney also alleged that Curley's right to "due process of law under the Constitution" had been denied because "undue pressure [had] been placed upon [the State's Attorney] by the police department" which resulted in improper motivation on the part of the prosecution in reopening the nol pros.

   [*454] The motion to dismiss was heard on August 28, 1981.  The circuit judge stated that the State has an "absolute right" to enter a nol pros and an "absolute right" to file charges a second time.  The judge went on to note that, notwithstanding the latter "right," prosecution may be barred because of double jeopardy or, in this case, a delay of time.  But, according to the judge, a delay in recharging will only bar prosecution where the State entered a nol pros with the purpose of avoiding the mandate of § 591 and Rule 746.  Because no evidence of such purpose was shown, the motion to dismiss was denied.

   On October 1, 1981, counsel for Curley filed a second motion to dismiss, again asserting that § 591 and Rule 746 were violated.  After a hearing, the circuit court filed on[***7] October 30, 1981, a memorandum opinion and order, again denying the motion.  A third motion to dismiss was filed on November 13, 1981, and denied on December 11, 1981.

   Trial commenced on December 15, 1981.  This was 449 days after the initial appearance of counsel under the first information, 172 days after the filing of the second information, and 160 days after the formal appearance of counsel under the second information.  The trial concluded on December 18th, and the jury returned guilty verdicts as to automobile manslaughter, driving while impaired, reckless driving, negligent driving, driving at a speed greater than reasonable and failing to drive in a single lane.  The jury acquitted Curley of homicide by motor vehicle while intoxicated and driving while intoxicated. The trial court imposed a three year sentence on [**505] Curley for the automobile manslaughter conviction, with all but three months of weekends at the County Detention Center suspended, and a $1,000 fine.  On the count of driving while impaired, the court imposed a two month suspended sentence, to run concurrently with the first sentence, and a $100 fine.  On the remaining three counts the court imposed[***8] $100 fines.

   Curley appealed to the Court of Special Appeals.  Pursuant to Maryland Rule 1015, the Court of Special Appeals [*455] certified the case to this Court on May 4, 1983.  We accepted the certification application and issued a writ of certiorari bringing the entire matter here.  See Rule 815.

   II.

   The broad issue presented in this case is not addressed by either the language of § 591 and Rule 746 or by any prior opinions of this Court.  An examination of cases in other jurisdictions which have considered the interaction of a nol pros, or its functional equivalent, with a statute or rule setting a time limit for the trial of criminal cases, reveals no uniformity in approach. n8£ This may sometimes be due, at least in part, to factors which vary among the states, factors which include the language of the state statute or rule, the supervisory control (or lack thereof) which the court may exert over the entry of a nol pros, whether a dismissal for violation of the state speedy trial statute or rule is with prejudice, and the principal purpose of the state statute or rule prescribing a time limit for criminal trials.  Despite these variables, however, the approaches[***9] taken in other jurisdictions can be divided into three broad, if not always clearly bounded, categories. n9

n8 Although some jurisdictions do not use the terms "nol pros" or "nolle prosequi," "it is the substance of the prosecution's action which controls."£ Hooper v. State, 293 Md. 162, 168, 443 A.2d 86 (1982). Also, some jurisdictions may call a motion a "nolle prosequi" when, in fact, it is something different than a nolle prosequi under Maryland law.  See, e.g., Klopfer v. North Carolina, 386 U.S. 213, 214, 87 S.Ct. 988, 989, 18 L.Ed.2d 1 (1967).

n9 For a general discussion of this topic, see Annot., 30 A.L.R.2d 462 (1953).

   (a)

   The first category is comprised of cases in which the running of the statutory period for trial begins on the date of the original charging document (or arraignment or first appearance of counsel), is neither tolled nor ended by the [*456] entry of a nol pros, and the same period continues to run when the defendant is re-indicted for the same charge.  See, [***10]  e.g., Wright v. State, 387 So.2d 1060, 1062 (Fla.App.1980); n10 Hurt v. State, 62 Ga.App. 878, 10 S.E.2d 136, 137 (1940); n11 State ex rel. Back v. Starke Circuit Court, 271 Ind. 82, 390 N.E.2d 643, 644 (1979). n12£ The holding of the Maryland Court of Special Appeals in State v. Glenn, 53 Md.App. 717, 456 A.2d 1300 (1983) (in which we have rendered a decision today, State v. Glenn, 299 Md. 464, 474 A.2d 509 (1984)), falls into this category.  See also People v. Scott, 200 Colo. 365, 615 P.2d 680 (1980). n13

n10 Fla.R.Cr.P. 3.191(h)(2) specifically addresses the effect of the entry of a nolle prosequi on the running of the statutory period.

n11 Georgia now has separate statutory speedy trial provisions for capital and noncapital offenses.  The State is permitted a longer period of time in which to begin trial in a capital offense.  Compare Georgia Code Ann. § 17-7-170 with § 17-7-171.

n12 With regard to the Indiana procedure, see also Ind.R.Crim.P. 4; Battle v. State, 415 N.E.2d 39, 41 (Ind.1981); Collins v. State, 266 Ind. 430, 364 N.E.2d 750, 755 (1977); State v. Johnson Circuit Court of Johnson County, 234 Ind. 429, 127 N.E.2d 600 (1955).

[***11] 

n13 For statutory speedy trial purposes Colorado will look to the trigger date from the first case.  If, however, the second complaint charges "any new, different or additional offense" and the prosecution was not "attempting to circumvent the speedy trial rule," Colorado will apparently use the trigger date from the second charges.  People v. Scott, supra, 615 P.2d at 682. See Amon v. People, 198 Colo. 172, 597 P.2d 569 (1979). Colo.R.Crim.P. 48(b).  For other circumstances under which Colorado will use the second trigger date, see Amon v. People, supra, 597 P.2d at 571 n. 1.

   [**506] The rationale for this approach appears to be that the state should not be permitted to avoid the effect of the running of the speedy trial period through the entry of a nolle prosequi. These cases take the view that where the identical charge is refiled, "'it must be regarded as if there had been no dismissal of the first [complaint] . . ., or as if the second . . . had been filed on the date of the first.'"£ State ex rel. Back v. Starke Circuit Court, supra, 390 N.E.2d at 644.

   [*457] [***12] (b)

   The second category consists of jurisdictions which look to the date of the first charge, but toll the running of the statutory time for the period during which no indictment is outstanding.  See, e.g., United States v. Dennis, 625 F.2d 782, 793 (8th Cir.1980); United States v. Sebastian, 428 F.Supp. 967, 973 (W.D.N.Y.1977), aff'd, 562 F.2d 211 (2d Cir.1977), aff'd, 578 F.2d 1372 (1978); n14 State v. Washington, 273 Ark. 82, 617 S.W.2d 3 (1981); n15 People v. Sanders , 86 Ill.App.3d 457, 459, 41 Ill.Dec. 453, 407 N.E.2d 951 (1980); State v. Ransom, 233 Kan. 185, 661 P.2d 392 (1983); n16 State v. Stephens, 52 Ohio App.2d 361, 370 N.E.2d 759, 766 (1977); n17 Commonwealth v. Leatherbury, 499 Pa. 450, 453 A.2d 957, 958 (1982); Cole v. State, 650 S.W.2d 818 (Tex.Cr.App.1983). n18

n14 The decisions in the federal cases would appear to be required by 18 U.S.C. § 3161(h)(6).

n15 In Washington the Supreme Court of Arkansas held that the entry of a nolle prosequi would toll the running of the speedy trial calendar only if it is entered "for good cause shown."£ State v. Washington, 617 S.W.2d at 6; A.R.Cr.P., Rule 28.3(f) (Supp.1981).  See also Carter v. State, 280 Ark. 34, 655 S.W.2d 379 (1983).

[***13] 

n16 However, if the state can show "necessity" for dismissal of the first case, it appears that the period during which the first indictment was outstanding will not be included in calculating the time for trial.  661 P.2d at 396-397. In Ransom, the Supreme Court of Kansas rejected the State's claim that the temporary absence of two doctors scheduled to testify as expert witnesses constituted "necessity."£ See also State v. Hunt, 8 Kan.App.2d 162, 651 P.2d 967, 970-971 (1982).

n17 For other pertinent Ohio cases, see State v. Bonarrigo, 62 Ohio St.2d 7, 9-11, 402 N.E.2d 530 (1980); State v. Spratz, 58 Ohio St.2d 61, 388 N.E.2d 751, 752 n. 2 (1979).

n18 The Texas holdings are based on express statutory language.  See Art. 32A.02, Sec. 4(7), V.A.C.C.P.; Vanderbilt v. State, 629 S.W.2d 709, 718 (Tex.Cr.App.1981), cert. denied, 456 U.S. 910, 102 S.Ct. 1760, 72 L.Ed.2d 169 (1982).

   Courts adopting the tolling approach have reasoned that it "would undercut the implementation of the speedy trial statute unless, in computing time under . . . [the statute], [*458] [***14] the defendant's time pending trial under the original indictment is included with time pending trial under the reindictment."£ State v. Stephens, supra, 52 Ohio App.2d at 371 [370 N.E.2d 759]. It has been said that refusing to include the the time under the earlier indictment "would subvert the policy of the speedy trial statutes by automatically providing prosecutors a new . . . period in which to bring an accused to trial, irrespective of the amount of . . . delay involved in the prior . . . proceedings."£ State v. Bonarrigo, 62 Ohio St.2d 7, 10, 402 N.E.2d 530 (1980).

   On the other hand, the cases taking the tolling approach hold that the period of time between the two indictments should not be counted because, "[w]hen a charge is nolle prossed . . ., there is no charge pending against" the defendant, and that "the speedy trial statute runs only when a charge is pending against a defendant," People v. Sanders, supra, 86 Ill.App.3d at 469 [41 Ill.Dec. 453, 407 N.E.2d 951].

   (c)

   Cases in the third category take the position that when criminal charges are nol prossed and later refiled, the time period for commencing trial ordinarily begins to run anew after the refiling. [***15] See, e.g., State v. Rose, 121 Ariz. 131, 589 P.2d 5, 11 (1978); People v. Allen, 220 Cal.App.2d 796, 34 Cal.Rptr. 106 (1963); n19 State v. [**507] Goodmiller, 86 Idaho 233, 386 P.2d 365, 367-368 (1963); State v. Allen, 641 S.W.2d 471, 475 (Mo.App.1982); State ex rel. Delgado v. Stanley, 83 N.M. 626, 495 P.2d 1073, 1074 (1972); State v. Mills, 307 N.C. 504, 299 S.E.2d 203 (1983); Miller v. Commonwealth, 217 Va. 929, 234 S.E.2d 269, 273 (1977), cert. denied, 434 U.S. 1016, 98 S.Ct. 735, 54 L.Ed.2d 762 (1978). These holdings appear to be based upon the nature and effect of a nol pros.

n19 See also, e.g., People v. Poon, 125 Cal.App.3d 55, 178 Cal.Rptr. 375, 382 (1981) (and the cases cited therein); Cal.Pen.Code §§ 1382, 1385, 1386.

   The jurisdictions in this third category, as well as the jurisdictions which toll the running of the statutory trial [*459] period for the time between charging documents, generally recognize an exception where the prosecution's action is[***16] intended or clearly operates to circumvent the statute or rule prescribing a time limit for trial.  As the cases put it, the prosecution must be acting in "good faith" or so as to not "evade" or "circumvent" the requirements of the statute or rule setting a deadline for trial.  See, e.g., State v. Rose, supra, 589 P.2d at 11 (1978); State v. Taylor, 27 Ariz.App. 330, 554 P.2d 926, 932 (1976); Carter v. State, 280 Ark. 34, 655 S.W.2d 379 (1983); Abernathy v. State, 278 Ark. 250, 644 S.W.2d 590, 591 (1983); People v. Sanders, supra, 86 Ill.App. at 470 [41 Ill.Dec. 453, 407 N.E.2d 951]; State v. Mask, 655 S.W.2d 832, 833 n. 1 (Mo.App. 1983); State v. Aragon, 99 N.M. 190, 656 P.2d 240, 242 (1982), cert. denied, 99 N.M. 226, 656 P.2d 889 (1983); State v. Ericksen, 94 N.M. 128, 607 P.2d 666, 668-669 (1980); State ex rel. Delgado v. Stanley, supra, 495 P.2d at 1074-1075; State v. Mills, supra, 299 S.E.2d at 205; State v. Moore, 51 N.C.App. 26, 275 S.E.2d 257, 260 (1981); Commonwealth v. Johnson, 487 Pa. 197, 204, 409 A.2d 308, 311 (1979); Commonwealth v. Whitaker, 467 Pa. 436, 359 A.2d 174 (1976).
 
   III.

   We believe that the approach[***17] taken by cases in the third category is preferable.  Ordinarily, treating the 180-day period as beginning to run anew after the refiling of the charges is in accord with Maryland law.

   The courts which consider the time during the initial prosecution which has been nol prossed, whether or not the time between prosecutions is regarded as tolled, are to some extent treating the second prosecution as a continuation of the first prosecution.  This, however, is inconsistent with the Maryland law regarding a nol pros.  Under our decisions, when an indictment or other charging document is nol prossed, ordinarily "the case [is] terminated," Ward v. State, 290 Md. 76, 84, 427 A.2d 1008 (1981), quoting [*460] Barrett v. State, 155 Md. 636, 638, 142 A. 96 (1928). As summarized in State v. Moulden, 292 Md. 666, 673, 441 A.2d 699 (1982):
 
"The nol pros of a charging document or of a count is 'a final disposition' of the charging document or count; 'there can be no further prosecution under' the nol prossed charging document or count; the matter is 'terminated' at that time; and the accused may be proceeded against for the same offense only under a new or different charging[***18] document or count.  Barrett v. State, supra, 155 Md. at 637-638 [142 A. 96.]
 
See Hooper v. State, 293 Md. 162, 167-168, 443 A.2d 86 (1982). Normally the effect of a nol pros is as if the charge had never been brought in the first place.  State v. Moulden, supra, 292 Md. at 673 [441 A.2d 699]; Ward v. State, supra, 290 Md. at 84 [427 A.2d 1008]. n20£ In light of this, the only existing prosecution or case is that begun by the new charging document. It is the trial under that prosecution which must be timely commenced.

n20 There are, of course, limited exceptions to these principles, as pointed out in both the Moulden and Ward cases.

   Moreover, applying the 180-day time period for trial only to the second prosecution, except where the nol pros was intended to or did circumvent the 180-day deadline, is consistent with the principal purpose of § 591 and Rule 746.  We have [**508] pointed out that § 591 and Rule 746 were not intended to be codifications of the constitutional[***19] speedy trial right.  State v. Frazier, supra, 298 Md. at 428 [470 A.2d 1269]. Instead, their chief purpose was to operate as a prophylactic measure "to further society's interest in the prompt disposition of criminal trials by providing an impetus to remedy court congestion. . . ."£ Id. at 456 [470 A.2d 1269]. This purpose is ordinarily not violated when a prior prosecution against the defendant has been nol prossed and thus is removed from the court's docket, and when the trial [*461] under the new prosecution is commenced within the time period prescribed by § 591 and Rule 746.

    Nevertheless we do adhere to the exception set forth in the previously cited cases, namely that the time period will begin to run anew with the second prosecution only where the earlier nol pros was not intended to or did not circumvent the requirements of § 591 and Rule 746.  Otherwise the state could regularly evade § 591 and Rule 746.  If, whenever the state desired a trial postponement beyond 180 days, it could nol pros the case, refile the same charges, and thereby cause the time period to start running anew, the requirements of § 591 and Rule 746 would largely be rendered meaningless. [***20]By such method the state could regularly escape the necessity, mandated by the statute and rule, of showing good cause for a postponement and obtaining an order of the administrative judge.

   The trial court in the present case recognized that the time period set forth in § 591 and Rule 746 should not begin to run anew with the second prosecution where it was shown that the purpose of the nol pros was to evade the requirements of the statute and rule.  The exception recognized by the trial court, however, is too limited.  Where the state's action necessarily circumvents the statute and rule prescribing a deadline for trial, this should be sufficient to continue the time period running with the initial prosecution. See, e.g., Carter v. State, 280 Ark. 34, 655 S.W.2d 379 (1983); State v. Lucero, 91 N.M. 26, 569 P.2d 952, 956-957 (1977); State ex rel. Delgado v. Stanley, supra, 495 P.2d at 1074-1075; Commonwealth v. Whitaker, supra, 359 A.2d at 176-177. In the last cited case, the prosecuting attorney nol prossed charges only two days prior to the deadline for trial, giving as the reason an insufficiency of admissible evidence; nevertheless the Pennsylvania Supreme Court[***21] held that this amounted to evasion of the speedy trial rule, causing the time period to run from the initial prosecution [*462] with no tolling. See also Com. v. Lowe, 255 Pa.Super. 78, 386 A.2d 144, 146 (1978), pointing out that a "salient" factor in Whitaker was "that the time for trial under Rule 1100 was so close to expiring . . . ."£ In fact, no case has been brought to our attention in which a court has clung to the view that the running of the speedy trial period begins with the second indictment when confronted with facts indicating that the necessary effect of the earlier nol pros was to defeat the time limitation imposed by the statute or rule.  Adoption of such a view might open the door to widespread evasion of § 591 and Rule 746.

   We hold, therefore, that when a circuit court criminal case is nol prossed, and the state later has the same charges refiled, the 180-day period for trial prescribed by § 591 and Rule 746 ordinarily begins to run with the arraignment or first appearance of defense counsel under the second prosecution.  If, however, it is shown that the nol pros had the purpose or the effect of circumventing the requirements of § 591 and Rule[***22] 746, the 180-day period will commence to run with the arraignment or first appearance of counsel under the first prosecution.

   In the instant case, the nol pros clearly circumvented the requirements of § 591 and Rule 746.  When the nol pros was entered on March 23, 1981, which was the final day for trial, it was too late for compliance with § 591 and Rule 746. At the time a trial date had not even been assigned. The case could not have been tried on March 23rd, as the defendant, his [**509] counsel, and witnesses were not present.  There was no reason for them to have been present, as March 23rd was not the assigned trial date. As of the close of business on March 23rd, the case would have had to have been dismissed for violation of § 591 and Rule 746.  In reality, the prosecution had already lost this case under § 591 and Rule 746 when the nol pros was filed.  Regardless of the prosecuting attorney's motives, the necessary [*463] effect of the nol pros was an attempt to evade the dismissal resulting from the failure to try the case within 180 days.

   CASE REMANDED TO THE COURT OF SPECIAL APPEALS WITH DIRECTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL[***23] COUNTY, AND TO REMAND THE CASE TO THAT COURT WITH DIRECTIONS TO DISMISS.  COSTS TO BE PAID BY ANNE ARUNDEL COUNTY.

DISSENTBY: RODOWSKY

DISSENT: RODOWSKY, Judge dissenting:

   I respectfully dissent because I adhere to my belief that the sanction of dismissal for violation of § 591 and Rule 746 is unnecessary, misdirected and disproportionate.  My reasons were set forth in my dissent in Calhoun v. State, 299 Md. 1, 472 A.2d 436 (1984). One of those reasons pointed to the recommendation by this Court's Standing Committee on Rules that a rule should prohibit dismissal of a charging document as a sanction for any violation of any rule which was not of constitutional dimension.  See proposed Rule 1-201(a), relating to the construction of rules generally and published at 10:10 Md.R.S-7 (May 13, 1983).  A majority of this Court rejected that recommendation at a public meeting on June 23, 1983.

   Despite that rejection the Rules Committee submitted the same recommendation, as a proposed criminal rule, in its Eighty-seventh Report.  See proposed Rule 4-102 published at 10:25 Md.R. S-8 (December 9, 1983).  This Court by a vote of 4-3 rejected the resubmitted recommendation at a public meeting[***24] on March 21, 1984.  I would accept our Rules Committee's advice and abrogate, either by rulemaking or by judicial overruling, that part of the holding in State v. Hicks, 285 Md. 310, 403 A.2d 356 (1979) which adopts the dismissal sanction. 

STATE of Maryland v. Anthony A. PHILLIPS 
No. 33, September Term, 1984
 
Court of Appeals of Maryland
 
299 Md. 468; 474 A.2d 512; 1984 Md. LEXIS 273

 May  3, 1984

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County - Judge Bruce C. Williams) JUDGE.

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED, AND CASE REMANDED TO THE COURT OF SPECIAL APPEALS WITH DIRECTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AND REMAND THE CASE TO THAT COURT FOR TRIAL.  RESPONDENT TO PAY COSTS.

CORE TERMS:  nol, appearance, charging document, prossed, refiled, new indictment, arraignment, deadline, expired

COUNSEL: Carmina Szunyog, Assistant Attorney General, Baltimore, Maryland (Stephen H. Sachs, Attorney General, Baltimore, Maryland, on the petition), for appellant.

   Robert S. McNeill, Millersville, Maryland, for appellee.

JUDGES: Murphy, C.J., and Smith, Eldridge, Cole, Davidson, Rodowsky and Couch, JJ.  Davidson, J., concurs in the result.

OPINIONBY: ELDRIDGE

OPINION: [*469] [**512] In a criminal information filed in the Circuit Court for Anne Arundel County on April 14, 1982, Anthony A. Phillips was charged with malicious injury and related offenses.  Counsel for Phillips entered his appearance on April 29, 1982.  Consequently, under Maryland Code (1957, 1982 Repl.Vol.), Art. 27, § 591, and Rule 746, the 180-day period for trying the case expired on October 25, 1982. n1£ On July 3, 1982, the circuit court granted [***2]Phillips's motion to dismiss [*470] on the ground that the charging document was defective in that it failed to contain the words "against the peace and dignity of the State."

n1 Under Art. 27, § 591, and Rule 746, the 180-day period for beginning the trial of a circuit court criminal case runs from arraignment or the initial appearance of defense counsel, whichever occurs first.

   Phillips was indicted in the Circuit Court for Anne Arundel County for the same offenses on August 9, 1982.  Counsel for Phillips entered his appearance under the second charging document on August 23, 1982.  Thus the 180-day period for commencing trial under the new prosecution, if measured from August 23, 1982, would have expired February 19, 1983.

   On October 27, 1982, 182 days after the appearance of counsel in the first prosecution, Phillips, by his attorney, orally moved to dismiss the second prosecution because of the State's failure to bring Phillips to trial within 180 days after the appearance of counsel in the first[***3] prosecution.  The circuit court granted the motion, holding that the State is not "free to indict on a new indictment unless that is done within the time limits imposed by" § 591 and Rule 746.  The circuit court held that, despite the dismissal of the first prosecution and the new indictment, the time limit for trial under the first prosecution continued to be the deadline for trial under the second prosecution. 

   [**513] The Court of Special Appeals affirmed in an unreported opinion. The appellate court rejected the view "that separate charging documents have separate lives and exist independent of each other," at least for the purposes of Rule 746 and § 591, and held that the date of the appearance of counsel in the first information triggered the running of the 180-day period for the purposes of the second information.  The appellate court relied upon its recent decision involving charges which had been nol prossed, stating:

   "In State v. Glenn, 53 Md.App. 717, 456 A.2d 1300 (1983), we upheld the dismissal of charges where the State nol prossed the first charging document because of an intrinsic defect and then brought the defendant to trial more than 180 days after[***4] the original arraignment on a [*471] second charging document. Appellant attempts to distinguish the case sub judice from the situation in Glenn by pointing out that here, the court dismissed the charges, while in Glenn, the prosecutor voluntarily entered the nol pros.  We fail to understand the significance of this distinction.  Appellant's reading would allow the State to circumvent Glenn's holding by unreasonably refusing to nol pros cases which are obviously defective thereby forcing a judicial dismissal."
 
We have granted the State's petition for a writ of certiorari, and we shall summarily reverse.

   Even if we agreed with the Court of Special Appeals' opinion in State v. Glenn concerning the application of § 591 and Rule 746 where the prosecuting attorney files a nol pros before the 180-day deadline and thereafter causes the same charge to be refiled against the defendant, it would not follow that a dismissal of the initial prosecution upon the defendant's motion should be treated the same as a nol pros for purposes of § 591 and Rule 746.  While, as pointed out today in Curley v. State, 299 Md. 449, 474 A.2d 502 (1984), cases throughout[***5] the country take different positions concerning the running of speedy trial periods when criminal charges are nol prossed and later refiled, the same is not true when the charges are dismissed on the defendant's motion.  In the latter situation, courts generally hold that the speedy trial period prescribed by statute or rule begins running anew with the second prosecution.  See, e.g., State ex rel. Berger v. Superior Court in and for County of Maricopa, 111 Ariz. 524, 534 P.2d 266 (1975); Latson v. State, 51 Del. 377, 146 A.2d 597, 600-601 (1958); State v. Fink, 217 Kan. 671, 538 P.2d 1390 (1975); State v. Bolin, 643 S.W.2d 806 (Mo.1983); State v. Lyons, 61 Ohio App.2d 228, 401 N.E.2d 452 (1978); Johnson v. State, 641 S.W.2d 367 (Tex.App.1982); State ex rel. Farley v. Kramer, 153 W.Va. 159, 169 S.E.2d 106 (1969).

   We need not, however, explore further in this context the possible difference between a nol pros and a dismissal on the defendant's motion.  We have today reversed the Court [*472] of Special Appeals' decision in the Glenn case. State v. Glenn, 299 Md. 464, 474 A.2d 509 (1984). Our opinions in Glenn and in Curley v. State, supra[***6] , are dispositive and require a reversal here.

   JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED, AND CASE REMANDED TO THE COURT OF SPECIAL APPEALS WITH DIRECTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AND REMAND THE CASE TO THAT COURT FOR TRIAL. RESPONDENT TO PAY COSTS. 

WILLIAM McKLVEEN GRANT v. STATE OF MARYLAND 
No. 87, September Term, 1983
 
Court of Appeals of Maryland
 
299 Md. 309; 473 A.2d 455; 1984 Md. LEXIS 265

 April  9, 1984, filed

   PRIOR HISTORY: [**1]

   Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County - Judge Raymond G. Thieme, Jr.)

COUNSEL: Sherrie Berger Greenberg and George E. Burns, Jr., Assistant Public Defenders (Alan H. Murrell, Public Defender, on the brief) all of Baltimore, Md. FOR APPELLANT

   Jillyn K. Schulze, Assistant Attorney General (Stephen H. Sachs, Attorney General, on the brief) both of Baltimore, Md. FOR APPELLEE

JUDGES: Argued Before, Smith, Eldridge, Cole, Davidson, Rodowsky, Couch, Orth, Charles E., Jr., (retired, specially assigned), JJ.

OPINION: [*456] ORDER

   The petition for writ of certiorari in the above entitled case having been granted and heard, it is this 9th day of April, 1984

   ORDERED, by the Court of Appeals of Maryland, that the writ of certiorari be, and it is hereby, dismissed with costs, petition having been improvidently granted.

   /s/ Marvin H. Smith, Senior Judge 

RAYMOND L. HENSLEY v. MOTOR VEHICLE ADMINISTRATION 
No. 130, September Term, 1983
 
Court of Appeals of Maryland
 
299 Md. 275; 473 A.2d 438; 1984 Md. LEXIS 262

 April  6, 1984, 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, Eugene M. Lerner & Robert S. Heise, JUDGES

DISPOSITION: APPEAL DISMISSED; COSTS TO BE PAID BY APPELLANT.

COUNSEL: William C. Trevillian (Connell & Clinton on the brief) all of Glen Burnie, Md. FOR APPELLANT

   Dorothy A. Beatty, of Baltimore, Md. and Robert R. Smith, of Glen Burnie, Md., Assistant Attorneys General (Stephen H. Sachs, Attorney General, of Baltimore, Md., on the brief) FOR APPELLEE

JUDGES: Argued Before, Murphy, C.J., Smith, Eldridge, Cole, Davidson, Rodowsky, Couch, JJ.

OPINION: PER CURIAM

   The appeal is dismissed for lack of jurisdiction.  Costs to be paid by appellant.

   APPEAL DISMISSED; COSTS TO BE PAID BY APPELLANT. 

ANNAPOLIS MALL LIMITED PARTNERSHIP v. YOGURT TREE OFANNAPOLIS, INC. 
No. 50, September Term, 1983
 
Court of Appeals of Maryland
 
299 Md. 244; 473 A.2d 32; 1984 Md. LEXIS 260

 April  5, 1984

   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 VACATED AND CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  COSTS TO BE PAID BY YOGURT TREE OF ANNAPOLIS, INC.

CORE TERMS:  lease, mutual mistake, landlord, rent, tenant, commencement, directed verdict, ejectment, reformation, written lease, equitable, builder, written instrument, parol evidence, negotiations, law and equity, admissible, written contract, special interrogatories, parol evidence rule, shopping center, amount of rent, jury trial, repossession, transferred, repossess, reformed, unpaid, prayer, opened

COUNSEL: David D. Freishtat, Silver Spring, Maryland (Shulman, Rogers, Gandal, Tobin & Ecker, P.A., Silver Spring, Maryland, on the brief), for appellant.

   Jonathan A. Azrael, Baltimore, Maryland (Azrael & Gann, Baltimore, Maryland, on the brief), for appellee.

JUDGES: Murphy, C.J., and Smith, Eldridge, Cole, Davidson, Rodowsky and Couch, JJ.

OPINIONBY: RODOWSKY

OPINION: [*246] [**33] This case is a summary ejectment action which was removed from the District Court of Maryland to a circuit court by a prayer for jury trial. The principal question is whether the tenant may defend on the ground of mutual mistake in the sense that, had the written lease expressed what the tenant contends to have been the true agreement of the parties, no rent would have been due to the landlord for the period in dispute.  For reasons hereinafter set forth, we shall[***2] hold that the defense is not available at law, without the written instrument first having been reformed in equity. Undoubtedly proponents of the merger of law and equity will point to this holding as another marcher in a parade of horribles emanating from the niceties of this state's present system of modified common law pleading. n1

n1 By amendments to Art. IV of the Maryland Constitution adopted at the general election in November of 1980, separate courts in Baltimore City, including separate law and equity courts, were abolished, and the Circuit Court for Baltimore City was created.  This constitutional change has considerably facilitated implementing adoption of a unitary civil action.  By its 82nd report this Court's Standing Committee on Rules of Practice and Procedure has recommended new rules for civil proceedings in circuit courts.  10:10 Md.R.S-1 et seq. (May 13, 1983).  Proposed new Rule 2-301 would establish "one form of action known as 'civil action.'"

   Appellant, Annapolis Mall Limited Partnership[***3] (Annapolis Mall), owns a regional shopping center. Appellee, Yogurt Tree of Annapolis, Inc. (Yogurt Tree), leased approximately 1390 square feet in the shopping center for a term in excess [*247] of ten [**34] years by a written lease dated May 13, 1981.  Article II of that lease, in relevant part, reads:
 
The commencement date, which shall be confirmed by an exchange of letters between Landlord and Tenant shall be the earlier of the following dates:

   (a) The date upon which Tenant opens for business in the demised premises; or 

   (b) July 1, 1981.
 
Among the various documents which comprise the lease is a twenty-page segment containing printed, general provisions.  These include an integration clause.

   After making certain improvements to the demised premises, Yogurt Tree opened for business on December 18, 1981.  On June 14, 1982 Annapolis Mall brought a summary ejectment action in the District Court of Maryland, at Annapolis, pursuant to Md.Code (1974, 1981 Repl.Vol.), § 8-401 of the Real Property Article. n2£ Essentially Annapolis Mall's position [*248] was that, beginning July 1, 1981, Yogurt Tree was to pay minimum rent and additional rent, consisting[***4] of various shopping center charges.  Annapolis Mall sought repossession and also back rent, in an amount later specified to be $17,364.66. This claim represented the period from July 1, 1981 through January 30, 1982, with one month's minimum rent, paid in advance, credited to July of 1981.

n2 Section 8-401 in relevant part provides:

   (a) Right to repossession.  -- Whenever the tenant under any lease of property . . . shall fail to pay the rent when due and payable, it shall be lawful for the landlord to have again and repossess the premises so rented.
 
   (b) Complaint; summons.  -- Whenever any landlord shall desire to repossess any premises to which he is entitled under the provisions of § 8-401(a), he . . . shall make his written complaint . . . before the District Court . . . and praying by warrant to repossess the premises, together with judgment for the amount of rent due and costs.  The District Court shall issue its summons, directed to any constable . . . and ordering him to notify by first-class mail the tenant . . . to appear before the District Court at the trial to be held on the fifth day after the filing of the complaint, to answer the landlord's complaint to show cause why the prayer of the landlord should not be granted . . . .

   (c) . . . .

   (2) If, when the trial occurs, it appears to the satisfaction of the court, that the rent, or any part of the rent, is actually due and unpaid, the court shall determine the amount of rent due and enter a judgment in favor of the landlord for repossession of the premises.  The court may also give judgment in favor of the landlord for the amount of rent determined to be due together with costs of the suit if the court finds that the actual service of process made on the defendant would have been sufficient to support a judgment in an action in contract or tort.

   (3) The court, when entering the judgment, shall also order the tenant to yield and render possession of the premises to the landlord . . . within two days after the trial.

[***5]

   On June 19, 1982 Yogurt Tree filed a prayer for jury trial in the District Court.  Jurisdiction was thereby "transferred forthwith" to the Circuit Court for Anne Arundel County.  See Md.Code (1974, 1980 Repl.Vol.), § 4-402(e)(2) of the Courts and Judicial Proceedings Article (Courts Article).  In the circuit court the action was placed on the law docket.  The first indication on the record that Yogurt Tree claimed that there was a mutual mistake in the commencement date provision of the lease was at trial on November 18, 1982.

   Theodore Edlow (Edlow), president of Yogurt Tree, testified that he originally began negotiations with Annapolis Mall's leasing agent in October of 1979.  Unwilling to proceed because of his financial situation at the time, Edlow interested his cousin, Melvin Kabik (Kabik), in operating at the subject location.  A form of lease was prepared by Annapolis Mall and furnished to Kabik in October 1980; but Kabick lost interest and never delivered a signed lease to Annapolis Mall.  The provision for commencement date in the proposed lease to Kabik in part read that
 
such commencement date shall be contingent upon the Issuance to Tenant of any required[***6] use and occupancy permit.  If Tenant is unable to secure such permit by commencement date, the commencement date shall be extended until such time as said Use and Occupancy Permit [is] obtained from the appropriate governmental authorities.
 
[*249] [**35] Then Edlow again became interested in the location.  He obtained a copy of the lease proposed to Kabik and read it.  He resumed negotiations with the leasing agent.  These concentrated on two aspects of the lease other than the commencement date.  After those features were resolved to Edlow's satisfaction, the landlord prepared the documents.  Edlow testified that he made certain that the two, specially discussed features were correctly stated in the papers and that he simply scanned the other provisions of the lease and signed it.  Over objection from the landlord, Edlow testified that the rental agent for Annapolis Mall had assured him that the lease which he would get would be "the same lease as originally negotiated with [Kabik]" with the exception of the two changes.

   Annapolis Mall unsuccessfully moved for a directed verdict. The jury was instructed on mutual mistake and the case submitted on written, special [***7]interrogatories. The first of these asked: "When do you find that payment of the rent commenced, July 1, 1981 or December 18, 1981?"£ In answer the jury filled in the latter date.  Pursuant to the jurors' response to another special interrogatory, judgment was entered in favor of Annapolis Mall for $1,406.16.  From that judgment Annapolis Mall appealed.  We issued the writ of certiorari on our own motion prior to consideration of the case by the Court of Special Appeals.

   In its brief Annapolis Mall makes three points:

   1. Testimony directed to proving mutual mistake concerning a term of the lease was not admissible;

   2. In an action of summary ejectment inquiry is limited to whether rent was due according to the terms of the lease and, if so, whether it was paid; and

   3. "The court erred in allowing the issue of mutual mistake to go to the jury since it is in the nature of equitable relief and was not allowable in an action at law."

   Yogurt Tree does not directly join issue on each of the points raised by the landlord; rather, the tenant in substance presents the following arguments:

   [*250] 1. Because Annapolis Mall neither objected to the use of special interrogatories[***8] nor excepted to the instructions to the jury, it has failed to preserve for appellate review the question of whether a mutual mistake was properly presented to the jury;

   2. There was legally sufficient evidence to support a finding of mutual mistake under the law relating to that doctrine; and

   3. Mutual mistake may be asserted as a defense to the instant action.

   (1)

   The threshold issue is whether Annapolis Mall has lost the right to appellate review of the claimed error.  In this connection Yogurt Tree attempts to redefine the landlord's position to one objecting to jury consideration of the mutual mistake issue.  If properly viewed in that light, lack of objection by Annapolis Mall to the use of special interrogatories and the absence of any exception to instructions concerning mutual mistake would take on significance.  However, Annapolis Mall's point is much broader.  It is that mutual mistake may not be shown at all in an action of summary ejectment. This position has been sufficiently preserved.

   In the course of the trial, the earliest effort by Yogurt Tree to elicit evidence tending to prove mutual mistake occurred on cross-examination of the witness called by Annapolis[***9] Mall to prove nonpayment of rent. When that cross-examination began to move into negotiations before execution of the May 18, 1981 lease, counsel for Annapolis Mall requested a conference at the bench.  In the course of an extended colloquy the landlord took the position that evidence relating to prior negotiations would not be admissible for two reasons: (1) Summary ejectment actions were by statute limited to consideration of whether rent was due and unpaid; and (2) proof of negotiations preceding the written lease were barred by the parol evidence rule. At the [**36] conclusion of all of the evidence Annapolis Mall moved for a [*251] directed verdict "on the basis that there has been no evidence whatsoever presented by the defendant to rebut the presumption that is given to the plaintiff in presenting the case, that the rent is due [and] owing."£ While the reason given in support of the motion is not articulated with clarity, it sufficiently embraced the landlord's position, more fully expressed earlier in the trial, that the issues in summary ejectment are very limited so that a defense of mutual mistake in the terms of a written lease may not be presented in such [***10]an action. n3

n3 Thus we do not reach the question of whether, without any party having raised the point, we would address on our own motion contract reformation by a law court based on mutual mistake. But see Creamer v. Helferstay, 294 Md. 107, 113, 448 A.2d 332, 335 (1982) (authority of law court to rescind contract decided, although not raised by parties.)

   (2)

   In admitting testimony from Edlow, the only object of which was to show that the written lease did not evidence the true agreement of the parties, the trial court erred.  Edlow sought to show that rent was to start when Yogurt Tree opened for business while the written lease unambiguously fixes the commencement date at the earlier of July 1, 1981 or the date upon which Yogurt Tree opened for business.  Edlow's testimony violates the parol evidence rule. It was legally incompetent, in this action, to prove that the agreement was contrary to that clearly expressed in the writing.
 
[I]n the absence of duress, fraud, or mistake, parol evidence[***11] of conversations before or at the time of the execution of a contract must be excluded.  Of course, the existence of a separate oral agreement as to any matter on which a written contract is silent, and which is not inconsistent with its terms, may be proved by parol, if under the circumstances of the case it may be properly inferred that the parties did not intend the written contract to be a complete and final statement of the whole [*252] transaction between them.  [Freeman v. Stanbern Construction Co., 205 Md. 71, 77-78, 106 A.2d 50, 54 (1954).]
 
And see Housing Authority of College Park v. Macro, 275 Md. 281, 340 A.2d 216 (1975); Markoff v. Kreiner, 180 Md. 150, 23 A.2d 19 (1941). Among the decisions in this Court rejecting attempts in actions at law to vary by parol the terms of integrated written leases are Kikas v. Baltimore County, 200 Md. 360, 89 A.2d 625 (1952); Bank v. Hurst Estate, 187 Md. 333, 50 A.2d 133 (1946); Phoenix Pad Manufacturing Co. v. Roth, 127 Md. 540, 96 A. 762 (1916).

   However, the rule is otherwise in an action in equity to reform the written instrument because of mutual mistake. Such a case was Hoffman v. Chapman [***12], 182 Md. 208, 34 A.2d 438 (1943). There we said:

   It is a settled principle that a court of equity will reform a written instrument to make it conform to the real intention of the parties, when the evidence is so clear, strong and convincing as to leave no reasonable doubt that a mutual mistake was made in the instrument contrary to their agreement. [citations omitted.]£ It is a general rule of the common law that parol evidence is inadmissible to vary or contradict the terms of a written instrument. [citations omitted.]£ But equity refuses to enforce this rule whenever it is alleged that fraud, accident or mistake occurred in the making of the instrument, and will admit parol evidence to reform the instrument, even though it is within the Statute of Frauds.  [citations omitted.]£ [Id. at 210, 34 A.2d at 439.]

   The only basis on which Yogurt Tree contends that Edlow's evidence was admissible over the objection of Annapolis Mall is that it tended to prove mutual mistake. However, the action sub judice is not a bill in equity to reform the May 13, 1981 lease. Accordingly the evidence was not admissible in this law action.

   (3)

   Yogurt Tree nevertheless contends[***13] that an equitable defense, or a counterclaim on equitable grounds, may be [*253] entertained at [**37] law.  In support the tenant cites decisions from other states.  It also quotes the following passage from 13 S. Williston, A Treatise on the Law of Contracts § 1598A (W. Jaeger 3d ed. 1962):
 
[T]he power of equity to reform contracts is being more and more borrowed by courts of law in fact, although not in name, for the result attained by a court of equity may frequently be reached by a court of law by simply admitting evidence of the actual intention of the parties and enforcing the bargain which the parties intended to make.

   And this is true of a defense which must be supported by showing a mistake which would justify reformation, whether asserted in the form of a counterclaim for reformation, or merely as an equitable defense.  [Footnotes omitted.]
 
Maryland law is different from the Williston proposition.

   When Yogurt Tree demanded a jury trial, jurisdiction over this summary ejectment action transferred by operation of § 4-402(e)(2) of the Courts Article to the Circuit Court for Anne Arundel County.  By a time no later than the receipt by the[***14] circuit court of the District Court record, this case became an "action" in the circuit court.  Maryland Rule 5 a defines "action" to "include all steps by which a party seeks to enforce any right in a court of law or equity."£ "Court," as defined in MD.R. 5 i, excludes the District Court unless expressly otherwise provided.  Interpretation of the Maryland Rules "to affect the existing distinction between law and equity" is proscribed by Rule 1 d.

   Having converted Annapolis Mall's summary ejectment case into a circuit court action on the law side, Yogurt Tree now essentially contends that the court at law could determine that the lease should be reformed, that it could skip over the step of actual reformation and that it could apply the lease, as if reformed , in defense of the claim for rent. The only provision in Maryland practice which superficially appears to authorize, at law, that which Yogurt Tree seeks is the special plea on equitable grounds recognized in Rule 342 [*254] d 1. n4£ However, decisions applying this rule and its predecessor statute have established that it does not embrace reformation based on mutual mistake.

n4 Subparagraph (a) of Rule 342 d 1 reads:

   A party to any action at law in which he, if judgment were obtained, would be entitled to relief against such judgment on equitable grounds, may plead the facts which entitle him to such relief by way of defense.

[***15]

   Provision for asserting equitable defenses in actions at law was first made by Chapter 547 of the Acts of 1888.  Nydegger v. Gitt, 125 Md. 572, 94 A. 157 (1915) involved that statute.  There a landlord sued a tenant for rent in a contract action.  One of the defendant's pleas was on equitable grounds and asserted that the lease did not represent the intention of the parties at the time of its execution.  Judgment for the landlord was affirmed.  Because the covenant in the written lease respecting payment of the money was clear and explicit, parol evidence was not permitted.  The plea on equitable grounds did not set up a defense to the action.  This Court said:

   It has been settled by repeated decisions of this Court, that the statute allowing equitable pleas, did not enlarge the jurisdiction of courts of law, so as to confer upon them the power of cancelling and reforming contracts.  Taylor v. State, 73 Md. 208 [20 A. 914]; Conner v. Groh, 90 Md. [674,] 684 [45 A. 1024]; Whitaker v. McDaniel, 113 Md. 388 [78 A. 1]. [Id. at 578, 94 A. at 159.]
 
The principle is also illustrated by Housing Authority of College Park v. Macro, supra, 275 Md. [***16] 281, 340 A.2d 216. The builder of a turnkey housing project sued for $25,000 which the purchaser had withheld from the contract price.  That amount represented the cost of ranges and refrigerators which had not been furnished by the builder. The builder's declaration alleged that the written contract mistakenly contained a provision requiring the builder to furnish those appliances, whereas in fact the parties had agreed that that obligation should be excluded from the agreement.  [*255] We vacated [**38]judgment for the builder and suggested that on remand the matter be transferred under Rule 515 to the equity side of the circuit court.  Judge Digges, writing for the Court, explained (275 Md. at 286, 340 A.2d at 219):

   However, as there has been no merger of law and equity in this jurisdiction, while it is not appropriate for a circuit court, convened at law, to receive parol evidence concerning a contract and then to reform that agreement by deleting those provisions which the evidence shows would not be there if it were not for inadvertence and mistake [citations omitted], if the action were brought as one in equity the parol evidence rule will not present a hurdle[***17] to the parties' seeking to vary the terms of the contract by reforming it . . . .
 
Accord, Creamer v. Helferstay, supra, 294 Md. at 115 n. 10, 448 A.2d at 336 n. 10. Cf., Adamstown Canning & Supply Co. v. Baltimore & Ohio R.R. Co., 137 Md. 199, 210, 112 A. 286, 290 (1920) (specific performance of promise to release not available at law under plea on equitable grounds); Conner v. Groh, 90 Md. 674, 683, 45 A. 1024, 1026 (1900) ("Courts of Law . . . have no power to reform contracts alleged to have been procured by fraud."); Baltimore Sugar Refining Co. v. Campbell & Zell Co., 83 Md. 36, 56, 34 A. 369, 372 (1896) (cancellation and reformation referred to as distinctively and exclusively equitable remedies).

   Because the instant case is decided on the inability of a circuit court at law to reform a written instrument, it is unnecessary for us to address Annapolis Mall's argument that the scope of a summary ejectment proceeding is limited to issues of whether rent is due and unpaid. Annapolis Mall also argues, as part of its contention that the trial court erred in admitting testimony of mutual mistake, that there was no mutual mistake as a matter of law because [***18]the alleged mistake was unilateral.  The reason assigned by Annapolis Mall to support its motion for directed verdict did not include this ground.  A contention that, as a matter of law, Yogurt Tree's proof established only unilateral mistake was advanced by Annapolis Mall in its motion for judgment [*256]n.o.v.£ That type of motion is governed by Rule 563 a 1.  It permits a party whose motion for a directed verdict at the close of all the evidence was denied to move to have the verdict and any judgment entered thereon set aside "and to have judgment entered in accordance with his motion for a directed verdict . . . ."£ Thus, the grounds which may be advanced for a judgment n.o.v. are limited to those advanced in support of the motion for directed verdict. See Seven Provinces Insurance Co. v. Commerce & Industry Insurance Co., 65 F.R.D. 674, 686 (W.D.Mo.1975); C. Albert Sauter Co. v. Richard S. Sauter Co., 368 F.Supp. 501, 509 (E.D.Pa.1973), both applying Fed.R.Civ.P. Rule 50(b) under which the motion for judgment n.o.v. is also one "to have judgment entered in accordance with [the party's] motion for a directed verdict . . . ."£ As pointed out in 5A J. [***19] Moore, Moore's Federal Practice para. 50.08 at 50-88 (2d ed. 1982) the requirement prevents sandbagging.  A movant for a directed verdict is not permitted to withhold a supporting reason until after the verdict when the case may no longer be reopened in order to cure a deficiency in the proof.

   The judgment entered below must be vacated and the matter remanded for further proceedings.  In the event Yogurt Tree brings a bill in equity to seek reformation of the commencement date provision of the lease, further proceedings in this action at law may include consideration of any request which might be made for a stay pending the final determination of that action in equity.

   JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY VACATED AND CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY YOGURT TREE OF ANNAPOLIS, INC. 

Eugene Sherman COLVIN v. STATE of Maryland 
Nos. 84, 114, September Term, 1981
 
Court of Appeals of Maryland
 
299 Md. 88; 472 A.2d 953; 1984 Md. LEXIS 235

 March  16, 1984

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County.  E. Mackall Childs, JUDGE.

DISPOSITION: JUDGMENT AFFIRMED, WITH COSTS.

CORE TERMS:  death penalty, murder, self-representation, aggravating circumstance, felony murder, mitigating circumstances, jurors, public defender, robbery, card, prima facie case, declaration, desired, aggravating circumstances, sentencing, hybrid, assigned, death sentence, disproportionate, sentence, wound, door, deliberation, phase, sentence of death, premeditation, convicted, basement, voir dire, kill

COUNSEL: George E. Burns, Jr., Assistant Public Defender, Baltimore, Maryland (Alan H. Murrell, Public Defender and Martha Weisheit, Assistant Public Defender, Baltimore, Maryland, on the brief), for appellant.

   Deborah K. Handel and Jillyn K. Schulze, Assistant Attorneys General, Baltimore, Maryland (Stephen H. Sachs, Attorney General, Baltimore, Maryland, on the brief), for appellee.

JUDGES: Murphy, C.J., and Smith, Eldridge, Cole, Davidson, Rodowsky and Couch, JJ.  Davidson, Judge, dissenting.

OPINIONBY: COUCH

OPINION: [*94] [**956] Eugene Sherman Colvin, the appellant, was found guilty by a jury in the Circuit Court for Anne Arundel County, of first degree premeditated murder, felony murder, robbery with a deadly weapon, and daytime breaking and entering.  Colvin selected a jury to conduct the sentencing proceeding pursuant to Maryland Code (1957, 1982 Repl.Vol.), Article 27, § 413; following this proceeding the jury imposed the death penalty. The matter is now before us for review, as provided for by Article 27, § 414.

   [*95] The parties have agreed to a[***2] statement of facts from which the underlying events giving rise to this case may be gleaned.  The victim, Lena Buchman, was an 82 year old resident of Florida.  On September 9, 1980, at 11:00 A.M., she arrived in Baltimore to visit her family.  That same afternoon Mrs. Buchman was alone in the home of her daughter, Marjorie Sorrell, when she was stabbed to death.  A neighbor found her in the Sorrell home at approximately 2:30 P.M.  Police and emergency units were dispatched to the home and Mrs. Buchman was flown to the Shock Trauma Unit of the University of Maryland Hospital, where she was pronounced dead at 4:23 P.M.  An autopsy revealed a total of twenty-eight stab wounds on the body.

   Entry into the Sorrell house apparently had been gained through a basement door. A glass pane in the door was found to have been broken and the chain locks were unhinged.  A subsequent search of the premises revealed that all of Mrs. Sorrell's jewelry was missing, as well as a Timex wristwatch and a pocketwatch. As Mrs. Sorrell had recently had all her jewelry appraised and inventoried, she was able to provide police with detailed descriptions of her jewelry as well as photographs, in addition to[***3] serial numbers on the pocketwatch.

   The investigation focused on the appellant when latent fingerprints, lifted from the pieces of glass from the basement door, were matched with known prints of Colvin.  Moreover, the investigation disclosed that on September 17, 1980, Colvin pawned the Sorrell pocketwatch and a Timex wristwatch.  The pocketwatch carried the same identification number as the watch taken from the Sorrell residence and the Timex wristwatch was identified by Mrs. Sorrell as the one taken from her house.  The pawnbroker who negotiated the loan for the pocketwatch testified regarding the circumstances of that transaction.  He stated the person pawning the watch showed him an age of majority card for identification.  That card issued by the Department of Motor Vehicles was in the name of Eugene Sherman Colvin and the signature and picture on the card matched the person [*96] pawning the watch.  The pawnbroker noted the age of majority card number on the receipt.  Additionally, a Department of Social Services card number, C-032679, was also noted on the receipt.  At trial a Social Services employee testified that appellant had a case number and that any identification[***4] card issued to him would have carried the number 032679.  Further facts necessary to a decision of the various issues raised by this appeal will be supplied in our discussion of those issues.

   [**957] The issues which we must consider n1 generally fall into five categories: (1) pre-trial, (2) trial, (3) post-trial, (4) proportionality sentence review, and (5) constitutionality of Maryland's death penalty statute. We shall discuss these issues seriatim.

n1 Art. 27, § 414(e):

   "Considerations by Court of Appeals.  -- In addition to the consideration of any errors properly before the Court on appeal, the Court of Appeals shall consider the imposition of the death sentence. With regard to the sentence, the Court shall determine:

   (1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor;

   (2) Whether the evidence supports the jury's or court's finding of a statutory aggravating circumstance under § 413(d);

   (3) Whether the evidence supports the jury's or court's finding that the aggravating circumstances are not outweighed by mitigating circumstances; and

   (4) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant."

[***5]

   (1)

   The pre-trial matters in which Colvin claims error concern the denial of his motion to suppress certain evidence and its subsequent admission at trial. Additionally, he asserts that the trial court erred in failing to conduct a proper inquiry after he demonstrated an inclination to waive counsel.

   (a)

   As to the first of these issues, we find no merit in appellant's contention that the age of majority card referred to above was erroneously admitted.  The appellant testified that the card must have been found in an illegal search of [*97]his home, whereas a police officer testified that it was discovered at police headquarters during a routine search of the appellant.  As the testimony on the circumstances attending the seizure of the card was in direct conflict the trial judge was required to weigh appellant's credibility against that of the detective in determining the legality of the search.  Maryland Rule 886 provides:

   "When an action has been tried by the lower court without a jury, this Court will review the case upon both the law and the evidence, but the judgment of the lower court will not be set aside on the evidence unless clearly erroneous and due regard[***6] will be given to the opportunity of the lower court to judge the credibility of the witnesses."
 
Appellant produced no evidence to substantiate his claim of an illegal search other than his testimony.  Therefore, the rule is applicable to the trial judge's determination that the card was found during a search at the police station, incident to an arrest.  We do not find the determination of the lower court in this instance to be clearly erroneous.

   The trial judge, in ruling the card admissible, commented, inter alia, that it was routine to pat a suspect down for protection purposes at the police station.  Because the officer had testified that he was specifically looking for the card at this time, the appellant argues the trial judge erred in admitting the card. This is so, he contends, because the trial judge either forgot this testimony or disregarded it.  The Court finds this argument to be without merit. The Supreme Court has held that the fact of a valid arrest furnishes justification for a search for evidence incident thereto.  In United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), the Court made clear that the Fourth Amendment permits[***7] the police to search fully the person of an arrestee, stating:
  
"A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.  It is the fact of the [*98] lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but it is also a 'reasonable' search [**958] under that Amendment."£ Id. at 235, 94 S.Ct. at 477, 38 L.Ed.2d at 440-41.

   Subsequently, in United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), the Court made plain that Robinson's search for evidence incident to arrest rule extended to stationhouse searches when it stated:
 
"both the person and the property in his immediate possession may be searched at the station house after the arrest has occurred at another place and if evidence of crime is discovered, it may be seized and admitted in evidence."£ 415 U.S. at 803, 94 S.Ct. at 1237, 37 L.Ed.2d at 775-76.[***8]

   Under Robinson and Edwards it is inconsequential that the search took place at the police station, or that the officer was looking for the age of majority card. It is the fact of a valid arrest which furnishes the justification for a search incident thereto in order "to preserve evidence on his person for later use at trial."£ United States v. Robinson, supra, 414 U.S. at 234, 94 S.Ct. at 476, 38 L.Ed.2d at 440.

   Colvin then argues that when the factual basis of a ruling is articulated, those facts must appear in the record.  We are not certain just where this argument is intended to lead us, but our review of the record persuades us that the trial judge gave several reasons for his ruling.  These included a belief in the officer's testimony; the recording of the search at the police station in an official report by the officer before the question became an issue; the routine nature of a search of the person arrested; and the lack of Colvin's credibility because of his prior criminal record, and the fact that appellant had "the most to lose by having this card admitted."£ We cannot say the trial judge was clearly erroneous in his factual conclusions and thus find no error[***9] in the denial of Colvin's motion to suppress this evidence.

   [*99] (b)

   The appellant next argues that the trial court erred in failing to conduct a proper inquiry after appellant demonstrated an inclination to waive counsel. What precipitated this issue may be quickly set forth.  Prior to trial, the appellant had filed a motion by which he was seeking the dismissal of the public defender as his attorney and the appointment of an attorney of his own choice at the expense of the state.  This motion was denied, but remade at trial.  During the hearing on this remade motion the appellant also moved the court to allow him to defend himself "to a degree."£ Both motions were denied.  The appellant now argues error in that the trial judge did not make an inquiry to determine whether there was an unequivocal waiver of counsel based on our holding in Snead v. State, 286 Md. 122, 406 A.2d 98 (1979). We believe appellant's reliance on Snead is misplaced.  There, Snead asked for a continuance to allow his family to engage the services of a different attorney since he was dissatisfied with the assigned public defender. When the court refused to grant the continuance Snead stated, [***10] "I don't want no attorney then."£ Id. at 126, 406 A.2d at 100. We concluded that Snead's declaration that he did not want an attorney was sufficient to require an inquiry to ascertain whether he truly wanted to represent himself.  See Maryland Rule 723(c). n2

n2 Maryland Rule 723(c) provides:

   "When a defendant indicates a desire or inclination to waive counsel, the court may not accept the waiver until it determines, after appropriate questioning on the record in open court, that the defendant possesses the intelligence and capacity to appreciate the consequences of his decision, and fully comprehends:

   1. The nature of the charges against him, any lesser included offenses, and the range of allowable penalties, including mandatory and minimum penalties, if any;

   2. That counsel can render important assistance to him in determining whether there may be defenses to the charges or circumstances in mitigation thereof, and in preparing for and representing him at trial;

   3. That even if the defendant intends to plead guilty, counsel may be of substantial assistance in developing and presenting information which could affect the sentence or other disposition;

   4. That if the defendant is found to be financially unable to retain private counsel, the Public Defender or the court would, if the defendant wishes, provide counsel to represent him."

[***11]

   [*100] [**959] Our holding in Snead requires a two phase inquiry once the defendant makes a minimum "declaration" sufficient to constitute an assertion of the right to self representation.  286 Md. at 127, 406 A.2d at 101. If such circumstances exist then the court "should ascertain whether the defendant 'clearly and unequivocally' wants to defend himself."£ Id. at 128, 406 A.2d at 101. But, this first inquiry is only triggered if the defendant indicates a desire to defend pro se.  In the case sub judice, no assertion was made to necessitate the threshold inquiry.

   Unlike Snead, Colvin did not seek to engage a private attorney; rather he desired to select his own attorney, and have that attorney reimbursed for his services by the state.  The Sixth Amendment to the United States Constitution provides that the accused in a criminal prosecution "shall enjoy the right . . . to have the Assistance of Counsel for his defense."£ The Due Process Clause of the Fourteenth Amendment guarantees the same right in state criminal prosecutions, including the right to the appointment of counsel in the case of the indigent defendant.  Argersinger v. Hamlin, 407 U.S. 25, 92[***12] S.Ct. 2006, 32 L.Ed.2d 530 (1972); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). However, an indigent defendant has no right to choose his appointed counsel.  Johnson v. State, 292 Md. 405, 439 A.2d 542 (1982); State v. Renshaw, 276 Md. 259, 347 A.2d 219 (1975); see Annot. 66 A.L.R.3d 996. The court in this instance made a proper inquiry into appellant's reason for the request, both at the motions hearing and at the subsequent hearing before the trial commenced.  Having found no sufficient reason for the request, the motion was properly denied.

   [*101] In the instant case, as recognized by the trial judge, the appellant was at best seeking "hybrid" representation, not making a statement from which the court could reasonably conclude that he desired self-representation. Thus, the predicate needed to trigger the threshold inquiry required by Snead or that required by Rule 723(c) was missing.  This is underscored when the record as a whole is considered.  Initially, when Colvin argued his motion for change of counsel, he stated to the court five times that he did not wish to "fire" his attorney.  When Colvin made this motion for a second[***13] time he was again seeking to replace the public defender with an attorney of his choice at state expense.  When this was denied he asked to be "allowed to defend [himself] to a degree."£ Admittedly, if he had asked to be allowed to defend himself and nothing more, the first phase of the Snead inquiry would have been triggered; but that was not the case.  He modified those unequivocal words with the phrase "to a degree."£ We perceive no error here.

   (2)

   Appellant next asserts several claims of error occurring during the trial.

   (a)

   The first of Colvin's claims of error occurring during the trial concerns the jury selection process.  The parties, by their briefs, agree that in an unreported chambers conference the appellant sought individualized voir dire examination of prospective jurors. The court denied the request pursuant to Maryland Rule 752. n3£ Appellant claims prejudicial error in this ruling.  He contends that in death penalty cases the attitudes of jurors toward the death penalty must be inquired into and, as some jurors could be reluctant to [*102]answer truthfully to [**960] such inquiry, in the presence of other jurors, individual voir dire is necessary. [***14] However, no authority has been brought to the attention of this Court, nor have we found any, mandating individual voir dire under any circumstances.  To the contrary, as appellant concedes, in the absence of a statute or court rule to the contrary, as long as the selection procedure results in a fair and impartial jury, the method and manner of conducting a voir dire rests within the sound discretion of the trial court.  Connor v. State, 225 Md. 543, 171 A.2d 699, cert. denied, 368 U.S. 906, 82 S.Ct. 186, 7 L.Ed.2d 100 (1961); see also Langley v. State, 281 Md. 337, 378 A.2d 1338 (1977); Piles v. State, 233 Md. 487, 197 A.2d 238 (1964); Grogg v. State, 231 Md. 530, 191 A.2d 435 (1963). Moreover, when considering the position appellant urges this Court to adopt, we previously declined to find an abuse of discretion where the trial court denied a request for individualized voir dire in a capital case.  Tichnell v. State, 297 Md. 432, 468 A.2d 1 (1983) (Tichnell III); Poole v. State, 295 Md. 167, 453 A.2d 1218 (1983); accord United States v. Bryant, 471 F.2d 1040 (D.C.Cir.1972), cert. denied, 409 U.S. 1112, 93 S.Ct. 923, 34 L.Ed.2d 693 (1973);[***15] Irvin v. State, 617 P.2d 588 (Okla.Crim.1980); Turner v. Commonwealth, 221 Va. 513, 273 S.E.2d 36 (1980), cert. denied, 451 U.S. 1011, 101 S.Ct. 2347, 68 L.Ed.2d 863 (1981).

n3 Maryland Rule 752 provides:

   "The Court may permit the parties to conduct an examination of prospective jurors or may itself conduct the examination.  If the court conducts the examination, it shall permit the parties to supplement the examination by any further inquiry it deems proper or shall itself submit to the prospective jurors the additional questions proposed by the parties it deems proper."

   In the instant case the record demonstrates the care with which the trial judge conducted the voir dire. Moreover, appellant's assertion that prospective jurors would not make the required admissions in the presence of others is contradicted by the record.  There were prospective jurors who responded affirmatively to sensitive questions posed to the entire venire.  The court then permitted individual voir dire by counsel[***16] of each of the jurors who responded affirmatively to the questions put to the group.  This questioning was conducted at the bench out of the presence of the remaining jury panel. n4£ It is mere speculation, unsupported [*103] by the record, to conclude that there were others who harbored strong feelings about the death penalty who did not choose to acknowledge their feelings in front of other prospective jurors.

n4 R.T. pages 9-10.

   Under the circumstances presented by the instant case the decision of the trial court to conduct the voir dire en masse did not represent an abuse of discretion.

   (b)

   The second claim of error during the trial phase concerns appellant's challenge to the jury array on the ground of racial discrimination.

   The Supreme Court has consistently ruled that "a conviction cannot stand if it is based on an indictment of a grand jury or the verdict of a petit jury from which Negroes were excluded by reason of their race."£ Whitus v. Georgia, 385 U.S. 545, 549-50, 87 S.Ct. 643, 646, [***17] 17 L.Ed.2d 599, 603 (1967) (citation omitted); Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880); see also Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979) (additional cases cited therein apply this principle in circumstances involving grand jury discrimination). n5£ However, "purposeful discrimination may not be assumed or merely asserted.  It must be proven."£ Swain v. Alabama, 380 U.S. 202, 205, 85 S.Ct. 824, 827, 13 L.Ed.2d 759, 764 (1965); Tarrance v. Florida, 188 U.S. 519, 23 S.Ct. 402, 47 L.Ed. 572 (1903); Lawrence v. State, 295 Md. 557, 457 A.2d 1127 (1983); Brooks v. State, 3 Md.App. 485, 240 A.2d 114 (1968), cert. denied, 403 U.S. 907, 91 S.Ct. 2213, 29 L.Ed.2d 683 (1971). Moreover, the burden of proving the existence of purposeful discrimination is on the party asserting such discrimination.  Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972). The appellant strives to accomplish this by stating that there was only one [**961] Negro in the array and [*104] he was struck.  He then relates this fact (unsupported by the record) to the general population ratio of blacks to whites in[***18] Anne Arundel County; he applies, in his brief only, the law of statistical probability and concludes that some invidious cause was at work to provide an array which contained only a single Negro.  He also argues that, having shown this fact, he had made a prima facie showing of discrimination and it became the state's burden to overcome this presumption.  While it is true that the state must rebut the presumption of discrimination once a prima facie case of invidious racial discrimination is established, Alexander v. Louisiana, supra, in this instance we find the state had no burden as appellant did not present sufficient evidence to establish a prima facie case.

n5 The principles which prohibit discrimination in the selection of grand juries also govern the selection of petit juries.  Pierre v. Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757 (1939).

   What the appellant urges here is that upon showing only one Negro in the venire compared to the ratio of black to white in the general population of [***19]the County, he had made out a prima facie case of racial discrimination, casting the burden on the state to rebut the presumption of unconstitutional discrimination.  Initially we note that a defendant has no right to a jury of any particular composition; the only right in this regard is to have the jury panel selected from a source which is reasonably representative of the community.  Alexander v. Louisiana, supra; Swain v. Alabama, supra; Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1950). Thus, the mere assertion that the venire contained only one Negro is not persuasive and is likewise insufficient prima facie evidence of purposeful racial discrimination.

   Appellant attempts to bolster his argument by providing a statistical analysis, in his brief, to show that given the ratio of blacks to whites in Anne Arundel County the probability of producing a venire of eighty with only one Negro is 1 to 1700.  From this he concludes the number of blacks on the jury was disproportionate to the racial distribution of the population of the County and therefore there was an invidious scheme to discriminate.  Appellant has drawn conclusions [*105] by comparing only [***20] one panel of eighty persons to a population group of 370,775 people.  We find this unpersuasive and not in accord with established law.

   The Supreme Court has held that not every disparity in proportions is constitutionally fatal.  The mere fact of inequality in the number selected does not in itself show discrimination.  Akins v. Texas, 325 U.S. 398, 403, 65 S.Ct. 1276, 1279, 89 L.Ed. 1692, 1696 (1945). Rather, what needs to be proven in order to establish a prima facie case of unlawful discrimination is that none or disproportionately few of the members of a particular class or race have been selected for jury duty over a significant period of time.  See, e.g., Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977) (bare prima facie case of invidious discrimination with proof of long continued (11 years) disproportion in composition of grand jury); Coleman v. Alabama, 389 U.S. 22, 88 S.Ct. 2, 19 L.Ed.2d 22 (1967) (prima facie case established by evidence that no Negro had ever served on grand jury, and few if any Negroes had served on petit jury panels, up to the time of the defendant's trial); Arnold v. North Carolina, 376 U.S. 773, 84 S.Ct. [***21] 1032, 12 L.Ed.2d 77 (1964) (prima facie case of systematic exclusion of Negroes established by testimony of court clerk that in 24 years only one Negro served on grand jury); Eubanks v. Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991 (1958) (prima facie case established by evidence that in 18 years only one Negro chosen); Reece v. Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77, reh. denied, 350 U.S. 943, 76 S.Ct. 297, 100 L.Ed. 822 (1955) (strong showing of systematic exclusions of Negroes made on uncontradicted evidence that no Negroes served for previous 18 years); Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954) (discrimination shown by evidence that no Mexican or Latin-American served on grand jury or petit jury for 25 years); Patton v. Mississippi, 332 U.S. 463, 68 S.Ct. [**962] 184, 92 L.Ed. 76 (1947) (strong showing of systematic exclusion since no Negro had served on jury for 30 years); Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559 (1942) (prima facie case made on evidence of [*106] continuous omission of Negroes for 16 years or more); Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935)[***22] (prima facie case established by testimony that no Negroes served on jury within the memory of witnesses who had lived there all their lives).  Accordingly, we are not persuaded that the appellant made a prima facie case of systematic discrimination and thus we find no error.

   Maryland Code (1973, 1980 Repl.Vol., 1983 Cum. Supp.), Courts & Judicial Proceedings, §§ 8-201 -- 208, provides for random selection of jurors from voter registration lists. n6£ Appellant contends the trial judge committed error by relying on this Court's ruling in Wilkins v. State, 270 Md. 62, 310 A.2d 39 (1973), cert. denied, 415 U.S. 992, 94 S.Ct. 1592, 39 L.Ed.2d 889 (1974), that the selection of jurors from voter registration lists was constitutional.  The use of voter registration lists is designed to produce an array which is a representative cross-section of the community. n7£ This official means of selecting prospective jurors is not unconstitutional even when it may have some racially disproportionate impact.  See Castaneda v. Partida, supra, and Swain v. Alabama, supra. In order to establish a prima facie case of discrimination the party asserting such must show that the use of those[***23] lists resulted in purposeful discrimination.

n6 Section 8-104 of Cts. & Jud.Proc. specifies the source of prospective jurors.
 
"The jury commissioner or the clerk of the court shall select the names of prospective jurors from among those persons 18 years old or older whose names appear on the voter registration lists. . . ."
n7 Section 8-102(a) of Cts. & Jud.Proc. states as a declaration of policy:
 
"The jury shall be selected at random from a fair cross section of the citizens. . . ."

   In Alexander v. Louisiana, supra, the Supreme Court found a combination of factors constituted a prima facie case of racial discrimination.  Among those factors was that the selection procedures themselves were not racially neutral. "The racial designation on both the questionnaire and [*107] the information card provided a clear and easy opportunity for racial discrimination."£ Id. 405 U.S. at 630, 92 S.Ct. at 1225, 31 L.Ed.2d at 542. See also Whitus v. Georgia, supra (jury list made[***24] under an illegal segregated system); Castaneda v. Partida, supra (selection system entirely discretionary and Spanish surnames are readily identified); Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (1953) (use of different colored tickets for whites and blacks gave opportunity to discriminate at various stages in the selection process). However, as these cases suggest, "an imperfect system is not equivalent to purposeful discrimination based on race."£ Swain v. Alabama, supra, 380 U.S. at 209, 85 S.Ct. at 830, 13 L.Ed.2d at 766. When attempting to prove a constitutional violation one must be able to establish that the procedures employed in the selection system resulted in continued unrepresentation of a cognizable group or class of qualified citizens.  Castaneda v. Partida, supra. Appellant has neither established an abuse in implementation of the selection system nor systematic exclusion.  Without more it cannot be said that Negroes have been excluded from the venire to such a degree to establish a prima facie case of racial discrimination.  Accordingly, we find no error in the State's failure to rebut appellant's assertions.

   (c)

   Appellant's next[***25] claim of error relates to his argument that the evidence was (i) insufficient to sustain his conviction for premeditated murder, and (ii) insufficient to sustain a finding of his criminal agency.

   (i)

   The basis for appellant's first argument is that other than evidence of multiple stab [**963] wounds, there simply was no other evidence from which the jurors could have properly concluded the killing was a premeditated act. This is so, he contends, because although the number of wounds can be viewed as evidence of premeditation, it cannot, without more, constitute legally sufficient proof of premeditation. Assuming, arguendo, the validity of this proposition, we do [*108] not believe appellant is helped thereby because there was other evidence from which the jury could find premeditation. Thus, we find the cases relied upon by appellant are distinguishable from this case. n8

 n8 People v. Anderson, 70 Cal.2d 15, 73 Cal.Rptr. 550, 447 P.2d 942 (1968) (en banc); People v. Hoffmeister, 394 Mich. 155, 229 N.W.2d 305 (1975); Austin v. United States, 382 F.2d 129 (D.C.Cir.1967); Belton v. United States, 382 F.2d 150 (D.C.Cir.1967); Hemphill v. United States, 402 F.2d 187 (D.C.Cir.1968).

[***26]

   In Maryland the principles of law applicable to determining when a murder is deliberate and premeditated are well settled:
 
"[T]o be 'premeditated' the design to kill must have preceded the killing by an appreciable length of time, that is, time enough to be deliberate.  It is unnecessary that the deliberation or premeditation shall have existed for any particular length of time.  Their existence is discerned from the facts of the case.  E.g., Gladden v. State, 273 Md. 383, 387, 330 A.2d 176 (1974); Robinson v. State, 249 Md. 200, 208-09, 238 A.2d 875, cert. denied, 393 U.S. 928, 89 S.Ct. 259, 21 L.Ed.2d 265; Chisely v. State, 202 Md. 87, 106-07, 95 A.2d 577 (1953). If the killing results from a choice made as the result of thought, however short the struggle between the intention and the act, it is sufficient to characterize the crime as deliberate and premeditated murder. Wilson v. State , 261 Md. 551, 565, 276 A.2d 214 (1971); Hyde v. State, 228 Md. 209, 215-216, 179 A.2d 421 (1962), [cert. denied, 372 U.S. 945, 83 S.Ct. 938, 9 L.Ed.2d 970 (1963)]."£ Tichnell v. State, 287 Md. 695, 717-18, 415 A.2d 830, 842 (1980) (Tichnell I).[***27]

   In Taylor v. State, 226 Md. 561, 174 A.2d 573 (1961), we found sufficient time for deliberation and premeditation during the time the defendant carried the weapon from one room to another.  In this case it would appear that appellant did not bring the murder weapon (kitchen knife) into the house, and thus may not have had a plan to kill at entry; it is also clear, however, that the knife was not merely fortuitously [*109] close at hand.  The evidence was that the knife had previously been washed and placed on the kitchen drainboard; the killing, however, took place at the stairs to an upper floor some distance from the kitchen.  Obviously the appellant had to have obtained the knife in the kitchen, after his entry into the house, and carried it with him; or gone and gotten the knife at a later time, and returned to the stairs to use it.  In either case there was sufficient time for deliberation and premeditation.

   Moreover, this Court has found sufficient time for reflection and decision where there is an interval between fatal blows or where the assault occurs over a protracted period of time.  In Chisely, supra, the firing of two or more shots separated by an interval[***28] of time was sufficient evidence of deliberation and premeditation for the jury.  In Kier v. State, 216 Md. 513, 140 A.2d 896 (1958), the victim was beaten with an ornamental iron horse and a sword for a protracted period of time.  "Then the assailant procured or produced a butcher knife which he plunged into her body not once but twice."£ Id. at 523, 140 A.2d at 900. We found the protracted period of time (together with the stabbings) was ample evidence to justify a conclusion that the killing was premeditated.  Similarly, in Robinson v. State, 249 Md. 200, 238 A.2d 875, cert. denied, 393 U.S. 928, 89 S.Ct. 259, 21 L.Ed.2d 265 (1968), we found an "abundance of evidence" to support a verdict of premeditated murder, id. at 209, 238 A.2d at 881, where there was evidence of a great variety of stab wounds, defense wounds, bruises and scrapes about [**964] the body, as well as the infliction of a final wound after death.

   In this case there was evidence of a protracted assault and an effort by the victim to defend herself.  Twenty eight stab wounds were inflicted to various parts of the victim's body.  Some of these wounds were defense-type wounds found on the victim's[***29] hands.

   When this Court is required to review the sufficiency of the evidence to support a criminal conviction, we follow the standard enunciated in Jackson v. Virginia, 443 U.S. 307, [*110] 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Tichnell v. State, 287 Md. 695, 415 A.2d 830 (1980). The critical inquiry on review is to "determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt."£ 443 U.S. at 318, 99 S.Ct. at 2788, 61 L.Ed.2d at 573. However, the Court is not required to "'ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.'£ [Citations omitted].  Instead, the relevant question 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."£ 443 U.S. at 318-19, 99 S.Ct. at 2789, 61 L.Ed.2d at 573 (emphasis in original).

   Given this standard we believe the evidence here was sufficient.  In our view, the jury was entitled to conclude that the time during which appellant carried the knife from the kitchen to the stairway, compounded[***30] by the protracted nature of the assault, was sufficient time for him to have chosen, after thought and deliberation, to kill. Therefore, we find no merit to this contention.

   (ii)

   The basis for appellant's second argument is that the evidence of his fingerprints found on glass broken from the basement door (the point of entry), and the evidence that he pawned the items taken during the robbery, is insufficient to show his criminal agency.  We disagree.

   We stated the rule as to fingerprints in McNeil v. State, 227 Md. 298, 176 A.2d 338 (1961):
 
"It is generally recognized that fingerprint evidence found at the scene of a crime must be coupled with evidence of other circumstances tending to reasonably exclude the hypothesis that the print was impressed at a time other than that of the crime."£ Id. at 300, 176 A.2d at 339.
 
The Court of Special Appeals has construed the evidence of other circumstances required by McNeil to include "circumstances such as the location of the print, the character of the [*111] place or premises where it was found and the accessibility of the general public to the object on which the print was impressed."£ Lawless v. State[***31] , 3 Md.App. 652, 659, 241 A.2d 155, 159-60 (1968). That court has consistently applied these factors to cases dealing with fingerprint evidence.  However, this Court has not had occasion to apply the threefold test enunciated in Lawless until this time.  We agree with Lawless, and will apply the factors identified there to the facts of the instant case.

   We find 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.  The house was a private residence not accessible to the general public.  The basement door was located at the back of the house.  By the location of the basement door and the fingerprints on the broken glass it was a rational inference that appellant was there unlawfully.  There was no evidence that appellant was anything but a stranger to the premises.  Appellant offered no evidence to the contrary.  Mrs. Sorrell testified that the basement door was locked and the glass was intact on the morning of her mother's murder. Susan Sorrell testified that the basement door was locked and the glass intact that same afternoon. [***32] We think, therefore, that there was sufficient evidence from which the jury [**965] could "reasonably exclude the hypothesis that the print was impressed at a time other than that of the crime."£ McNeil, supra, 227 Md. at 300, 176 A.2d at 339.

   Eight days after the murder appellant pawned items taken from the Sorrell home.  Appellant concedes that possession of stolen property, absent a reasonable explanation for possession, is evidence that the possessor stole the property.  Lewis v. State, 225 Md. 474, 475-76, 171 A.2d 244, 245 (1961). Appellant offered no reasonable explanation for having the property in his possession.  However, he argues that these items were easily transferable and that, therefore, an equally plausible inference is raised that he was merely the possessor of stolen goods and not the thief.  We [*112] find this argument to be without merit.  The verdict is not subject to challenge merely because the jury might have drawn another inference.  United States v. Elsbery, 602 F.2d 1054, 1057 (2d Cir.), cert. denied, 444 U.S. 994, 100 S.Ct. 529, 62 L.Ed.2d 425 (1979). "Further, it is the exclusive function of the jury to . . . resolve evidentiary[***33] conflicts and draw reasonable inferences from proven facts."£ United States v. Ramirez-Rodriquez, 552 F.2d 883, 884 (9th Cir. 1977); United States v. Fitzharris, 633 F.2d 416, 422 (5th Cir.1980), cert. denied, 451 U.S. 988, 101 S.Ct. 2325, 68 L.Ed.2d 847 (1981). Reviewing the evidence in the light most favorable to the prosecution we find the evidence offered by the state and the inferences properly drawn therefrom amply supported a finding of criminal agency.  There were attendant circumstances to show that the fingerprints were affixed at the time of the murder, as well as evidence that the items taken during the crime were in his possession after the crime was committed.

   (d)

   Colvin next contends that trial counsel's representation was so inadequate that he was denied his constitutional right to the effective assistance of counsel.  Furthermore, Colvin claims he objected to the quality of his representation at trial, and the record clearly reflects counsel's incompetency. 

   We believe what was said by Judge Digges for the Court in Johnson v. State, 292 Md. 405, 439 A.2d 542 (1982), is dispositive of this argument:
 
"Moreover, under the settled rules of appellate[***34] procedure, a claim of ineffective assistance of counsel not presented to the trial court generally is not an issue which will be reviewed initially on direct appeal, Berndt v. Warden, 240 Md. 701, 213 A.2d 471 (1965); State v. Zimmerman [261 Md. 11, 273 A.2d 156], supra; see White v. State [17 Md.App. 58, 299 A.2d 873], supra; Bailey v. State, 6 Md.App. 496, 252 A.2d 85 (1969); Harris v. State [2 Md.App. 408, 234 A.2d 781], supra; see also Md.Rules 885, [*113] 1085, although competency of counsel may be raised for the first time at a section 645A post conviction proceeding.  Davis v. State [285 Md. 19, 400 A.2d 406], supra; see Curtis v. State, 284 Md. 132, 395 A.2d 464 (1978). Upon such a collateral attack, there is presented an opportunity for taking testimony, receiving evidence, and making factual findings concerning the allegations of counsel's incompetence.  Wilson v. State, 284 Md. 664, 675, 399 A.2d 256, 262 (1979); see Md.Rule BK 44.  By having counsel testify and describe his or her reasons for acting or failing to act in the manner complained of, the post conviction court is better able to determine intelligently whether[***35] the attorney's actions met the applicable standard of competence.  Where, as here, the record sheds no light on why counsel acted as he did, direct review by this Court would primarily involve 'the perilous process of second-guessing' People v. Miller, 7 Cal.3d 562, 102 Cal.Rptr. 841, 848, 498 P.2d 1089, [1096] (1972), perhaps resulting in an unnecessary reversal in a case where sound but unapparent reasons existed for counsel's actions.  Consequently, we leave consideration of Johnson's ineffective representation claim to the circuit court upon post conviction proceeding where there can be a studied evaluation of a [**966] proper record should appellant choose to pursue the matter.  See, e.g., Jones v. Warden, 244 Md. 720, 224 A.2d 274 (1966); Davis v. State, 285 Md. 19, 36-37, 400 A.2d 406, 414-15 (1979); see Md.Rule BK 45b."£ Johnson, supra, at 434-35, 439 A.2d at 559.
 
For these reasons this issue is best raised under post conviction procedures if Colvin so desires.

   (3)

   Because he was not present when his motion for a new trial was heard, Colvin argues there was error committed.  We see no merit to this argument and reject it.

   In Ash v. State[***36] , 238 Md. 317, 208 A.2d 691 (1965), we held that a hearing on a motion for a new trial is not part of the trial of the accused as contemplated by statutory and constitutional [*114] provisions.  Id. at 320, 208 A.2d at 693. Nevertheless, appellant asserts his presence was required because one of the issues involved the racial composition of the jury venire, an issue which he had raised pro se at the trial and "he may well have had additional information to offer to the court."£ Therefore, he argues, under our holding in Hughes v. State, 288 Md. 216, 421 A.2d 69 (1980), his absence at this stage of the proceedings was prejudicial.

   In Hughes, we held that a defendant had the right to be present when the administrative judge made his determination as to whether or not any extraordinary cause was shown which would justify a continuance.  It was made clear in Hughes that under the facts of that case the right to a fair hearing was thwarted by the absence of the defendant.  Id. at 229, 421 A.2d at 76. The hearing in Hughes involved the necessity of making factual determinations.  All of the relevant information would not have necessarily been known by the defendant's[***37] attorney, but would have been by the defendant. Therefore, his presence was required to assure fundamental fairness.

   In the instant case there was no proffer of any additional facts Colvin could have presented at the motion hearing or even at the appellate level.  This hearing was entirely collateral and merely consisted of legal argument which was within counsel's expertise.  Thus, we cannot say that fundamental fairness required appellant's presence in this case.

   (4)

   Colvin next argues that "because there is 'no principled way to distinguish this case, in which the death penalty was imposed, from the many cases in which it was not,' appellant's death sentence must be vacated."£ (Quoting Godfrey v. Georgia, 446 U.S. 420, 433, 100 S.Ct. 1759, 1767, 64 L.Ed.2d 398, 409 (1980)). We disagree.

   Under Maryland Code (1957, 1982 Repl.Vol.), Article 27, § 414, we are required to determine:
 
[*115] "(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor;
 
(2) Whether the evidence supports the jury's or court's finding of a statutory aggravating circumstance under § 413(d);
 
(3) Whether the evidence[***38] supports the jury's or court's finding that the aggravating circumstances are not outweighed by mitigating circumstances; and
 
(4) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant."
 
Colvin does not contend, nor do we find from the record, that the death sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor.  Furthermore, from our review of the record, we conclude the evidence supports the finding by the sentencing authority, of the statutory aggravating factor of murder committed while committing robbery. The evidence showed that jewelry was taken from the Sorrell residence at the time of the murder. These items were subsequently pawned by appellant.  Additionally, the [**967] victim's wallet was found open with "absolutely nothing in it."£ These facts clearly establish the finding of an aggravating circumstance under § 413(d)(10). Moreover, we conclude from our record review that this aggravating circumstance was not outweighed by any mitigating circumstance (the sentencing jury found none).

   In answer to Colvin's contention[***39] that his case cannot be distinguished from cases in which the death penalty was not imposed we note, preliminarily, that there is no federal constitutional requirement of proportionality review in every case in which the death penalty is imposed. Pulley v. Harris,    U.S.   , 104 S.Ct. 871, 79 L.Ed.2d 29 (1984). Nevertheless, this Court is required to conduct such review by state legislative mandate.

   Article 27, § 414(e)(4), mandates that the Court, in considering the imposition of the death sentence, determine [*116] "[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant."£ [Emphasis supplied.]£ In Tichnell v. State, 297 Md. 432, 468 A.2d 1 (1983) (Tichnell III), we thoroughly discussed this Court's function in fulfilling its legislative mandate to conduct a proportionate review of death sentences, and found our review avoids the "arbitrary or capricious imposition of the death penalty."£ Id. at 466, 468 A.2d at 18; Calhoun v. State, 297 Md. 563, 610, 468 A.2d 45, 67 (1983).

   Based on the thorough review of Supreme Court cases in Tichnell III [***40], we find appellant's contention to be unfounded under this Court's holdings in Tichnell III and Calhoun.  We deem these cases to be dispositive of this issue.

   (a)

   Proportionality Review

   In Tichnell III, this Court stated we would permit the defendant to bring to this Court's attention cases similar to the case then under scrutiny for us to take into account in the exercise of our proportionality review function.  297 Md. at 466, 468 A.2d at 18. However, in the instant case appellant seeks to have our proportionality review encompass felony murder cases without regard to the nature of the crime, which in our view runs counter to the legislative mandate to review "similar cases."£ While murder is murder, the circumstances surrounding a particular murder may very well differ from other types of murder to the extent that one may not be said to be similar to the other.  This is the situation in the instant case. n9£ In our judgment the [*117] circumstances of this case should be compared [**968] with other cases involving murder committed during the course of breaking into a home and therein committing robbery and not with cases of felony murder involving other[***41] robbery situations.

n9 We have reviewed those cases submitted to us by appellant that involved murders committed during the course of robberies and find them dissimilar:

   Bryan Keith Quickley:£ Quickley was sentenced to life for a murder committed during the robbery of a store.  The sentencing authority found one aggravating circumstance, that the murder was committed while committing or attempting to commit robbery. It found two mitigating circumstances: the youthful age of the defendant at the time of the crime; and that the defendant was at the borderline range of intelligence with severe intellectual limitations both at the verbal and performance measured levels.  The defendant had no prior criminal record. The mitigating circumstances were found to outweigh the aggravating circumstances by a preponderance of the evidence.

   James Thomas Porter:£ Porter was sentenced to life for a murder committed during the robbery of a gas station.  The court sentenced Porter to life imprisonment when the jury became deadlocked after a reasonable time of deliberation.

    Gary Allen Miller:£ Miller was sentenced to life imprisonment for murder. The sentencing court found one aggravating circumstance, that the defendant committed the murder while committing or attempting to commit robbery. The court found several mitigating circumstances: the defendant had no prior record of a crime of violence; the victim was a participant in the defendant's conduct or consented to the act which caused the victim's death; the murder was committed while the capacity of the defendant to appreciate 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 disorder, emotional disturbance, or intoxication; the act of the defendant was not the sole proximate cause of the victim's death.  The mitigating circumstances were found to outweigh the aggravating circumstances.

[***42]

   We have reviewed those reports submitted by trial judges, pursuant to Rule 772A, in each of Maryland's capital sentencing proceedings and have selected five which we deem to be "similar" within the framework of Article 27, § 414(e)(4).

   Ronald Leroy Johnson:£ Johnson was sentenced to life following a court sentencing proceeding for bludgeoning to death his great aunt during the course of an attempted robbery in her home.  The sentencing judge found that the latter was shown beyond a reasonable doubt.  It was also shown by a preponderance of the evidence that three mitigating circumstances existed: the defendant had not previously been found guilty or charged with a crime of violence; [*118] that Johnson acted under substantial duress, domination or provocation of another person, but not so substantial as to constitute a complete defense to the prosecution; and the murder was committed while the capacity of the defendant to appreciate 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 disorder, emotional disturbance, or intoxication.  The sentencing judge concluded, by a preponderance[***43] of the evidence, that the mitigating circumstances outweighed the aggravating circumstance and, accordingly, sentenced the defendant to life.

   Dean Hugh Oliver:£ Having been found guilty of murder and felony murder committed during the course of the burglary of a home, the same jury subsequently sentenced Oliver to life.  An examination of the jury's findings and sentencing determination discloses that the jury found no aggravating circumstance and apparently did not consider mitigating circumstances. The report does reflect that there were two persons involved in the crime although the second person blamed Oliver for the murder.

   Lawrence Johnson:£ Johnson was found guilty by a jury of premeditated first degree murder, daytime housebreaking and robbery. A sentence of death was imposed for the murder conviction. n10£ The convictions stemmed from a daytime housebreaking during the course of which Johnson and Dwayne Mayers encountered a 78 year old female, who was brutally beaten, stomped, kicked, tied and then strangled to death.  Dwayne Mayers was sentenced to life imprisonment for his participation in this offense.  The sentencing jury found one aggravating circumstance, [***44] that the defendant committed the murder while committing or attempting to commit robbery. The jury found two mitigating circumstances: the act of the defendant was not the sole proximate cause of the victim's death; and the co-defendant received a [*119] life sentence. However, in this instance the jury did not find that the mitigating circumstances outweighed the aggravating circumstances by a preponderance of the evidence.  The report of the trial judge in Johnson's case indicates that he had a prior conviction for daytime housebreaking, two housebreakings as a juvenile, and a first degree murder conviction for which, on remand from the reversal of his death penalty, life imprisonment was imposed.  To some extent Johnson's background parallels that of the instant case.

n10 A new sentencing proceeding was granted by the trial court.  On February 18, 1984 a jury reimposed the death sentence.

   Dwayne T. Mayers:£ An elderly female was strangled to death in her home during the course of a breaking and[***45] entering.  Mayers was convicted by a jury of felony murder and subsequently sentenced by the same jury to life. That jury found one aggravating circumstance, murder during robbery. It also found defendant had no previous conviction for or charge of a crime of violence; that the murder was committed [**969] while the capacity of the defendant to appreciate 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 disorder, emotional disturbance, or intoxication; and that the defendant was of youthful age.

   Glen Sturgis:£ This defendant, along with another, broke into a home intending to burglarize it and, while therein, the victim, Mrs. Bridell, returned home.  She was kidnapped and ultimately shot by each of the intruders. A jury found Sturgis guilty of murder and other offenses.  The same jury was elected by the defendant for sentencing and failed to agree thereon; a life sentence was thus imposed.  There was evidence of two aggravating circumstances: the victim was taken as a hostage; and the murder was committed during the course of a robbery. The trial judge also reported that[***46] there was evidence raised that the defendant was not the sole proximate cause of the victim's death, and that the defendant was of youthful age at the time of the crime.  Additionally, he had cooperated with the police and assisted [*120] in locating the body.  The co-defendant received a life sentence on a plea of guilty to first degree murder.

   By contrast to the above, the defendant here was 36 years old at the time of the offense, with a record of convictions for burglary, larceny, storehouse breaking, and assault stretching back to 1960.  Ronald Johnson and Dwayne Mayers had not previously been found guilty or charged with a crime of violence. Additionally, Dwayne Mayers and Glen Sturgis were found to be of youthful age at the time of the crime.  Furthermore, the record reveals no evidence of physical or mental problems or that the defendant was under the influence of alcohol or drugs at the time of the offense.  This is in contrast to the findings in Ronald Johnson's case, as well as Dwayne Mayers'.  The jury in the instant case found one aggravating circumstance and no mitigating circumstance.  In the cases of Ronald Johnson and Dwayne Mayers there was one aggravating[***47] factor but three mitigating circumstances. The jury found no aggravating circumstances in Dean Oliver's case.  There was evidence of two aggravating circumstances in Glen Sturgis's case, but several mitigating circumstances were also found to be present.

   In our view, the jury's imposition of the death sentence in this case was not an aberration.

   Having fulfilled our mandated proportionality review function, we hold that the death sentence imposed on the defendant was neither excessive nor disproportionate to the penalty imposed in similar cases in Maryland, considering both the crime and the defendant.

   (5)

   Colvin finally argues that the Maryland death penalty statute is unconstitutional because it violates either the United States Constitution or the Maryland Constitution.  His attack focuses on seven alleged deficiencies:

   (a) the statute, because it exposes a majority of first degree murderers to the death penalty, does not reserve this sanction for only "a small number of extreme cases" [*121] as required by the Supreme Court in Godfrey v. Georgia , 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980);

   (b) the statute mandates the death penalty upon the finding of[***48] an aggravating circumstance and no mitigating circumstance;

   (c) the death penalty for a felony murder conviction is disproportionate;

   (d) the statute unconstitutionally placed upon the accused the burden of proving the existence of a mitigating circumstance;

   (e) Articles 16 and 25 of the Maryland Constitution are violated by the statute because it permits punishment which is cruel and unusual;

   (f) the statute is constitutionally defective because of the discretion vested in the sentencing authority;

   (g) that the statute is unconstitutional as applied in the instant case.

   [**970] (a)

   Colvin contends that Sec. 413(d)(10) n11 fails to restrict the death penalty to exceptional cases.  He argues that over half of the first degree murder convictions reviewed and reported by the Court of Special Appeals since January, 1976, were based on felony murder and thus the statute cannot be deemed to reserve the death penalty for only a small number of extreme cases.  However, we find appellant ignores the legislative intent to restrict the death penalty to exceptional cases by providing certain specific requirements.  Most important, to address appellant's argument, is the [*122] [***49] specific enumerated felonies in section 413(d)(10).  This section does not encompass all of the felonies which would support a first degree murder verdict. Additionally, section 413(e)(1) requires that the defendant be a principal in the first degree. n12£ Although accomplices could be convicted of felony murder they would be exempt under section 413(e)(1) if they did not actually commit the murder. Therefore, the application of the statute is limiting, contrary to what appellant contends.  Moreover, we are not told which of these cases reviewed and reported by the Court of Special Appeals involved those offenses specifically set out in § 413(d)(10), robbery, arson, or first degree rape or sexual offense, or which of those convicted were principals in the first degree.  Thus it simply is impossible to draw any conclusion from the statistics such as Colvin would have us do.

n11 Art. 27, § 413(d)(10) states:

   "(d) Consideration of aggravating circumstances.  -- In determining the sentence, the court or jury, as the case may be, shall first consider whether, beyond a reasonable doubt, any of the following aggravating circumstances exist: 

   * * *

   (10) The defendant committed the murder while committing or attempting to commit robbery, arson, or rape or sexual offense in the first degree."
[***50] 

n12 Only one exception, not applicable to this appeal, is found in the statute.  If the defendant "engaged or employed another person to commit the murder and the murder was committed pursuant to an agreement or contract for remuneration or the promise of remuneration," the defendant could be eligible for the death penalty. Article 27, § 413(d)(7).

   Further, as we stated in Tichnell I, supra, "the imposition of the death penalty is limited to cases in which the sentencing authority finds at least one aggravating circumstance. The sentencing authority is required to consider the existence of mitigating circumstances. A sentence of death may be imposed only if the mitigating circumstances do not outweigh the aggravating circumstances."£ Id. 287 Md. at 729, 415 A.2d at 848 (emphasis supplied).  This statutory scheme is therefore designed to limit the imposition of the death penalty to a "small number of extreme cases."£ Gregg v. Georgia, 428 U.S. 153, 182, 96 S.Ct. 2909, 2929, 49 L.Ed.2d 859, 879 (1976), as required by Supreme Court decisions.

   (b)

   Next, Colvin argues that the[***51] statute mandates the imposition of the death penalty in a felony murder situation, since the factfinder will automatically find the existence of [*123] the felony murder aggravating factor at sentencing. Aside from the fact that in this case Colvin was also found guilty of premeditated murder, and that in Tichnell I, supra, we found the statute facially constitutional, we disagree with his conclusion.  See Calhoun, supra, 297 Md. at 629, 468 A.2d at 77 (felony murder found to be a constitutional aggravating factor).

   What appellant fails to consider is the entire statutory scheme which must be utilized by the jury in arriving at its verdict.  The jury must first determine whether the state has proved any of the aggravating circumstances beyond a reasonable doubt.  If so found it is the right of the sentencing body to then find any mitigating factors which may be found to outweigh any aggravating circumstance, in which event the statute mandates a life sentence. This type of procedure was "noted with approval by the United States Supreme Court in Jurek v. Texas, 428 U.S. 262, 271 n. 6, 96 S.Ct. 2950, 2956 n. 6, 49 L.Ed.2d 929 [938 n. 6] [**971] (1976)."£ [***52] Houston v. State, 593 S.W.2d 267, 277 (Tenn.), cert. denied, 449 U.S. 891, 101 S.Ct. 251, 66 L.Ed.2d 117 (1980). This procedure allows the jury to weigh all the circumstances in determining what sentence should be imposed.  "That it is not a mandatory death penalty statute is clear.  Because it allows for a broad consideration of mitigating circumstances, it plainly withstands scrutiny under Woodson v. North Carolina [428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976)], supra, and Roberts v. Louisiana [428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976)], supra."£ Tichnell I, supra 287 Md. at 728, 415 A.2d at 848.  The death penalty does not automatically flow from a finding of one aggravating factor beyond a reasonable doubt.  That the jury did impose the death penalty in this case after finding robbery as an aggravating circumstance was a result reached because the jury found no mitigating circumstances to weigh against this aggravating circumstance. The sentencing authority followed the procedure set forth in Article 27, § 413.  We find no error.

   [*124] (c)

   Colvin further argues that the imposition of the death penalty for felony murder is disproportionate[***53] to the crime.  In Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), the Supreme Court emphasized that the death penalty was unconstitutional when it was disproportionate to the nature of the crime.  The Court also noted, however, that it is established that the death penalty is not "an unacceptable mode of punishment . . . at least for murder. . . ."£ Id. at 591, 97 S.Ct. at 2866, 53 L.Ed.2d at 989. As Colvin was convicted of premeditated murder as well as felony murder, his argument is inapplicable to the facts of this case.

   Moreover, in our view, the imposition of a sentence of death in a felony murder case is not necessarily excessive and unconstitutional.  Each case must be evaluated on the culpability of that particular defendant.  The Supreme Court requires "'individualized consideration as a constitutional requirement in imposing the death sentence.'"£ Enmund v. Florida, 458 U.S. 782, 797, 102 S.Ct. 3368, 3377, 73 L.Ed.2d 1140, 1152 (1982) (citation omitted).

   There are, however, general principles by which we can measure the constitutionality of a death penalty statute.  In Coker, the Supreme Court stated:
 
"Under Gregg, a punishment[***54] is 'excessive' and unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime."£ Id. 433 U.S. at 592, 97 S.Ct. at 2866, 53 L.Ed.2d at 989.

   The Maryland statute avoids both of these objections.  As we stated previously, the Maryland statute limits the death sentence to those who actually commit murder, with only one exception for contract murder. Article 27, § 413(e)(1).  But see Enmund v. Florida, supra, 458 U.S. at 797, 102 S.Ct. at 3377, 73 L.Ed.2d at 1152 (imposition of death penalty [*125] when one does not kill or attempt to kill, or have any intention of participating in or facilitating a murder is an "excessive penalty"); Coker, supra, 433 U.S. at 592, 97 S.Ct. at 2861, 53 L.Ed.2d at 982 (imposition of death penalty for the rape of an adult woman "is grossly disproportionate and excessive punishment").  Thus, this limiting feature of the Maryland statute, as well as the mandatory review set forth in Article 27, § 414(e)(4), assures that the sentence will not be [***55]out of proportion to the severity of the crime.

   The second requirement under Gregg is to measure the punishment against acceptable goals.  Two acceptable goals of punishment, retribution and deterrence of capital crimes by prospective offenders, are furthered when the death penalty is given to the "trigger man" in a felony murder case.  Speaking to the value of capital punishment, the Supreme Court observed:

   "'Retribution is no longer the dominant objective of the criminal law,' Williams v. New York, 337 U.S. 241, 248, 93 L [**972] Ed 1337, 69 S Ct 1079 [1083] (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. [238] at 394-395, 33 L Ed 2d 346, 92 S Ct 2726 [at 2806-2807] (Burger, C.J., dissenting); id., at 452-454, 33 L Ed 2d 346, 92 S Ct 2726 [at 2835-2836] (Powell, J., dissenting); Powell v. Texas, 392 U.S. [514] at 531, 535-536, 20 L Ed 2d 1254, 88 S Ct 2145 [at 2153, 2155-2156] (plurality opinion).  Indeed, the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community's belief that certain crimes are[***56] themselves so grievous an affront to humanity that the only adequate response may be the penalty of death.

   * * *

   The value of capital punishment as a deterrent of crime is a complex factual issue the resolution of which properly rests with the legislatures, which can evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts.  Furman v. Georgia, supra [408 U.S.] at 403-405, [*126] 33 L Ed 2d 346, 92 S Ct 2726 [at 2810-2811] (Burger, C.J., dissenting).  Indeed, many of the post-Furman statutes reflect just such a responsible effort to define those crimes and those criminals for which capital punishment is most probably an effective deterrent."
 
Gregg v. Georgia, 428 U.S. 153, 183-84, 186, 96 S.Ct. 2909, 2930-31, 49 L.Ed.2d 859, 880-882 (1976).

   That the Maryland legislature seeks to deter felons from murdering during the course of committing other crimes is clear.  The threat that the death penalty will be imposed for murder in these situations may well act as a deterrent. Unlike the situation in Enmund where the Supreme Court found it would not be a deterrent[***57] for "one who does not kill and has no intention or purpose that life will be taken," 458 U.S. at 797, 102 S.Ct. at 3377, 73 L.Ed.2d at 1152, in Maryland the legislature seeks to deter, and the ultimate sanction is only available for, those who do actually kill during the commission of a felony, or engage another to kill for remuneration.

   As we stated previously, Colvin was convicted of first degree premeditated murder as well as felony murder, so it would serve no purpose to justify his punishment for the felony murder alone; although this is the sole basis for his argument.

   (d), (e), (f)

   Appellant argues that the statute unconstitutionally places the burden of proof to show mitigation on the accused; that the imposition of the death penalty violates Article 16 and 25 of the Maryland Declaration of Rights; that the sentencing jury has too much discretion; that the sentencing jury does not have sufficient discretion.

   These arguments were raised, considered, and rejected in Tichnell I and, as we stated in Johnson v. State, 292 Md. 405, 436, 439 A.2d 542, 560 (1982), as regards the first two contentions:
 
"Both arguments presented here were thoroughly considered and[***58] rejected, however, in . . . Tichnell v. State, [*127] 287 Md. 695, 720-34, 415 A.2d 830, 843-50 (1980), and we deem the matter to be settled."
 
Further, we stated, "the statute complies with three general methods of guiding the discretion vested in the sentencing authority under Gregg, Proffitt [v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976)], and Jurek."£ Tichnell I, supra 287 Md. at 728-729, 415 A.2d at 848.  We deem this matter, likewise, to be settled.

   (g)

   Finally Colvin argues that the statute is unconstitutional, as applied in the instant case, because a death penalty may not be imposed on a felony murder theory when the defendant's conviction was based on the same evidence of felony murder. He relies on State v. Cherry, 298 N.C. 86, 257 S.E.2d 551 (1979), cert. denied, 446 U.S. 941, 100 S.Ct. 2165, 64 L.Ed.2d 796 (1980), to [**973] support this contention.  We believe this reliance to be misplaced.

   In Cherry the defendant was convicted of first degree felony murder. At the guilt determination phase of the trial the jury was not even instructed on premeditation and deliberation. In reversing the death penalty[***59] and remanding for a new sentencing trial, the North Carolina Supreme Court held:
 
"Once the underlying felony has been used to obtain a conviction of first degree murder, it has become an element of that crime and may not thereafter be the basis for additional prosecution or sentence. Neither do we think the underlying felony should be submitted to the jury as an aggravating circumstance in the sentencing phase when it was the basis for, and an element of, a capital felony conviction."£ (Emphasis added.)£ State v. Cherry, 257 S.E.2d at 567-68.
 
However, the Court further stated:
  
"Nothing we have said herein should be construed to foreclose consideration of the aggravating circumstance found in G.S. 15A-2000(e)(5) n13 when a murder occurred [*128] during the commission of one of the enumerated felonies but where the defendant was convicted of first degree murder on the basis of his premeditation and deliberation. In such case, the jury should properly consider that aggravating circumstance in determining sentence."£ Id. at 568.

n13 N.C.Gen.Stat. § 15A-2000(e)(5) (1977), states:

   "Aggravating Circumstances. -- Aggravating circumstances which may be considered shall be limited to the following:

   * * *

   (5) The capital felony was committed while the defendant was engaged, or was an aider or abettor, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any robbery, rape, arson, burglary, kidnapping, or aircraft piracy or the unlawful throwing, placing, or discharging of a destructive device or bomb."

[***60]

   In the instant case, of course, Colvin was convicted of premeditated murder. Therefore, even under Cherry, consideration of the underlying felony as an aggravating circumstance was proper.  We further find that the Supreme Court has implicitly approved the identical application of the felony of robbery committed as part of the act of murder as a valid aggravating circumstance to support the imposition of the death penalty. See Proffit v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).

   The issue decided in Cherry is not presented by the facts of this case. Therefore, we do not now decide whether the underlying felony should be submitted to the jury as an aggravating circumstance in the sentencing phase when it was the basis for a capital felony conviction.

   JUDGMENT AFFIRMED, WITH COSTS.

DISSENTBY: DAVIDSON

DISSENT: DAVIDSON, Judge, dissenting:

   The majority here determines that "the appellant was at best seeking 'hybrid' representation, not making a statement from which the court could reasonably conclude that he desired self-representation."£ Consequently, the majority concludes that "the predicate needed to trigger the threshold inquiry required by Snead[***61] or that required by Rule 723 c was missing."£ I do not agree.  In my view, the accused's [*129] statement here was sufficient to trigger that inquiry.  Accordingly, I respectfully dissent.
 
   An accused in a criminal prosecution has the constitutional right to proceed without counsel.  State v. Renshaw, 276 Md. 259, 267, 347 A.2d 219, 225 (1975); see also Faretta v. California, 422 U.S. 806, 818, 95 S.Ct. 2525, 2532, 45 L.Ed.2d 562 (1975). In Snead v. State, 286 Md. 122, 127, 406 A.2d 98, 101 (1979), we considered "how the right to self-representation must be asserted."£ In establishing the minimum "declaration" sufficient to constitute an assertion of the right to self-representation, we said:
 
"As we see it, such a declaration serves to alert the trial judge that further inquiry [**974] may be necessary.  Therefore, any statement by the defendant from which the court could reasonably conclude that the defendant desired self-representation would be sufficient."£ (Emphasis added.)
 
Thus, this Court in Snead established that it is not necessary for an accused to make an unequivocal statement indicating a desire to represent himself in order to[***62] trigger an inquiry by the trial court to determine whether the accused is entitled to exercise the right to self-representation.

   Additionally, in Snead, this Court described the inquiry to be pursued by the trial court when the accused indicates, in a minimum "declaration," a desire to defend himself.  There we said:

   "When the defendant so indicates a desire to defend pro se, the court must, by appropriate inquiry, determine whether he 'truly wants to do so.'£ Faretta, 422 U.S. at 817 [95 S.Ct. at 2532]. This inquiry has two phases. First, the court should ascertain whether the defendant 'clearly and unequivocally' wants to defend himself.  If a defendant makes known to the court, admitting of no doubt or misunderstanding, that he desires to represent himself, the right to do so has been properly asserted.

   "Once the defendant has clearly and unequivocally declared his desire to proceed pro se, the second phase of the inquiry is triggered.

   . . .
 
[*130] Rule 723 of the Maryland Rules of Procedure implements the constitutional mandates for waiver of counsel, and its provisions are mandatory. Section c of the Rule details the inquiry to be made '[w]hen[***63] a defendant indicates a desire or inclination to waive counsel. . . .'£ Thus, it is invoked when a defendant has properly asserted his right to defend pro se and governs phase two of the inquiry required to determine whether a defendant 'truly' desires to manage his own defense.  In short, a defendant in a criminal prosecution who has properly asserted the right to defend himself and has, under our procedures, effectively waived the assistance of counsel, has the right to self-representation absolutely."£ Snead, 286 Md. at 127-28, 130, 406 A.2d at 101, 102 (citations omitted).
 
Thus, this Court established that when an accused makes a minimum "declaration" asserting the right to self-representation, the trial court must conduct an inquiry to determine whether the accused "clearly and unequivocally" wants to represent himself.  If the trial court determines that the accused "clearly and unequivocally" wants to represent himself, the right to self-representation has been properly asserted.  The trial court is then required to conduct an inquiry pursuant to Maryland Rule 723 n1 to determine [*131] whether the accused has competently and intelligently waived the right[***64] to assistance of counsel.

n1 Md.Rule 723 c provides:

   "When a defendant indicates a desire or inclination to waive counsel, the court may not accept the waiver until it determines, after appropriate questioning on the record in open court, that the defendant possesses the intelligence and capacity to appreciate the consequences of his decision, and fully comprehends:

   "1. The nature of the charges against him, any lesser included offenses, and the range of allowable penalties, including mandatory and minimum penalties, if any;

   "2. That counsel can render important assistance to him in determining whether there may be defenses to the charges or circumstances in mitigation thereof, and in preparing for and representing him at trial;

   "3. That even if the defendant intends to plead guilty, counsel may be of substantial assistance in developing and presenting information which could affect the sentence or other disposition;

   "4. That if the defendant is found to be financially unable to retain private counsel, the Public Defender or the court would, if the defendant wishes, provide counsel to represent him."

[***65]

   The record here shows, contrary to the majority's assertion, that the accused's statement was a minimum "declaration" sufficient to trigger the two-phase inquiry [**975] required by Snead.  During a pretrial proceeding, the following colloquy took place:

   "COURT: Now is there anything before you start to address the jury?  Any . . . any motions that --

   "MR. PAYNE [Defense Counsel]: There were some motions, I think.

   "COURT: What are they, sir?

   "MR. PAYNE: Well, Mr. Colvin has some proper person motions.

   "COURT: Alright."£ (Emphasis added.)
 
After a recess, the colloquy continued as follows:

   "MR. PAYNE: Your honor, I believe Mr. Colvin has some motions which involve proper person.
 
   "COURT: Hand them to the Court please.  (Long pause) Pass them up to the Court. . . .

   . . .

   "DEFENDANT: . . .  At this time I'd like to speak about some motions that I drew up.  One of the motions concerning is the removal of my counsel, for which I applied for in another court.

   "COURT: Alright.  What do you want to say about it?

   "DEFENDANT: I already wrote . . . already wrote the verses to the change of counsel.  I believe that because of improper support, [***66] because of the nature of the charge, because the State has allowed in cases the State's Attorney . . the State, uh, uh counsel . . to be paid for representation of the defendant because I need the counsel of my choice to properly represent me in the nature of [*132] this case.  I ask that the State allow me to choose my counsel and reimburse him for his service.

   "COURT: Anything else?

   "DEFENDANT: There's another motion concerning to be allowed to defend myself to a degree if this case is allowed to go on.

   "COURT: Alright.  Anything else?"£ (Emphasis added.)
 
Subsequently, the Assistant State's Attorney said:

   "MR. LEVITZ [Assistant State's Attorney]: Before the jury comes in I wonder if, in view of the defendant's remarks, an inquiry into Rule 723 would be appropriate?  I'm not clear in my mind, Judge, whether the defendant has requested to represent himself or not."£ (Emphasis added.)
 
After denying the accused's motion for removal of his assigned Public Defender, the trial court concluded that the accused was requesting "hybrid representation" and consequently that a "Rule 723 inquiry" was unnecessary. Thereafter, the colloquy continued as follows: [***67] 

   "DEFENDANT: You spoke of a serious matter bringing about a change of counsel. At our last peer . . at our last motion hearing we both [the accused and the assigned Public Defender] requested to be relieved of each other.  Mr. Payne can speak for the matter hisself now.

   "COURT: Well, it's denied."£ (Emphasis added.)

   In my view, the accused's statement that he desired "to be allowed to defend myself to a degree" was not a clear and unambiguous request for hybrid representation. n2£ [**976] Rather, it [*133] was an equivocal statement that could reasonably support not only a conclusion that the accused requested "hybrid" representation but also a conclusion that the accused desired self-representation. Under these circumstances, the inquiry required by Snead was triggered.

 n2 I do not agree with the majority that the fact that Colvin "stated to the court five times that he did not wish to 'fire' his attorney," supports the conclusion that the accused "was at best seeking 'hybrid' representation."£ These statements were made at a hearing held on 14 May 1981 in the Circuit Court for Baltimore County before Judge William R. Buchanan, Sr.  At this hearing, the accused's motion for a change of venue was granted and the case was removed to the Circuit Court for Anne Arundel County.

   The pretrial proceeding with which we are here concerned was held on 18 August 1981 in the Circuit Court for Anne Arundel County before Judge F. Mackall Childs.  There, notwithstanding the accused's 14 May 1981 statements that he did not then wish to "fire" his attorney, the accused initially expressed dissatisfaction with his assigned Public Defender and moved for "removal of my counsel."£ The accused did not at any time during the 18 August 1981 pretrial proceeding express a desire to retain his assigned Public Defender. Indeed, after the accused's motion "to defend myself to a degree" was denied, he again indicated that he did not desire to be represented by his assigned Public Defender and wanted him removed.  In view of the accused's unequivocal statements that he desired the removal of his assigned Public Defender, made during the 18 August 1981 pretrial proceeding, his previous statements that he did not wish to "fire" his assigned Public Defender, made during the 14 May 1981 proceeding in another county before another judge, do not lend support to the conclusion that on 18 August 1981 he "was at best seeking 'hybrid' representation."

[***68]

   The record here shows that the accused did not desire to be represented by his assigned Public Defender. Additionally, the accused made a request "to be allowed to defend myself to a degree."£ This request was not articulated in terms of a desire to act as co-counsel, to assist counsel, to himself conduct some particularized aspect of the trial, or to have counsel advise him during the course of the trial. n3£ [*134] Instead, the accused himself expressly articulated his request in terms of being "allowed to defend myself." n4£ Moreover, even after the trial court determined that the accused was not entitled to "hybrid" representation, the accused again indicated that he did not desire to be represented by [*135] the assigned Public Defender. Indeed, he noted that not [**977] only he but also the assigned Public Defender recognized that the existing lawyer-client relationship was unsatisfactory, a factor that suggests that the accused had not been seeking "hybrid" representation because the necessary relationship for successful "hybrid" representation did not exist.

n3 It is significant to note that ordinarily a request for "hybrid" representation is expressly articulated in terms of a desire:
 
(1) to act as co-counsel, United States v. Lang, 527 F.2d 1264, 1265 (4th Cir.1975), cert. denied, 424 U.S. 920, 96 S.Ct. 1127, 47 L.Ed.2d 328 (1976); United States v. Swinton, 400 F.Supp. 805, 805 (S.D.N.Y.1975);
 
(2) to assist in the defense, United States v. Hill, 526 F.2d 1019, 1023-24 (10th Cir.1975), cert. denied, 425 U.S. 940, 96 S.Ct. 1676, 48 L.Ed.2d 182 (1976);
 
(3) to assist counsel, Brasier v. Jeary, 256 F.2d 474, 475 (8th Cir.1958);
 
(4) to conduct some particularized aspect of the trial, United States v. Dougherty, 473 F.2d 1113, 1119-20 (D.C.Cir.1972); United States v. Dellinger, 472 F.2d 340, 407-08 (7th Cir.1972), cert. denied, 410 U.S. 970, 93 S.Ct. 1443, 35 L.Ed.2d 706 (1973); United States v. Conder, 423 F.2d 904, 907 (6th Cir.), cert. denied, 400 U.S. 958, 91 S.Ct. 357, 27 L.Ed.2d 267 (1970); Duke v. United States, 255 F.2d 721, 725-26 (9th Cir.1958); Wilson v. State, 44 Md.App. 318, 327, 408 A.2d 1058, 1063 (1979); Beard v. State, 42 Md.App. 276, 288, 399 A.2d 1383, 1390 (1979); or
 
(5) to have counsel provide advice during the course of the trial, Lee v. Alabama, 406 F.2d 466, 468-69 (5th Cir.1969); Shelton v. United States, 205 F.2d 806, 812-13 (5th Cir.1953).
 
In none of these cases was the request for "hybrid" representation expressly articulated in the terms used in this case -- "to be allowed to defend myself to a degree."

[***69] 

n4 In my view, the accused's affirmative request to be "allowed to defend myself" even when coupled with the phrase "to a degree" is as strong a declaration of a desire for self-representation as that made by the accused in Snead.  In Snead, as here, the accused initially indicated a desire to replace his counsel with counsel of his choice.  When that request was denied, the accused said, "I don't want no attorney then."£ Snead, 286 Md. at 126, 406 A.2d at 100. Thus, Snead never expressly stated that he wanted to represent himself. Although the Court of Special Appeals found that a desire for self-representation could not be inferred from Snead's statement, this Court found Snead's statement to be a minimum "declaration" sufficient to reasonably support a conclusion that he desired self-representation. Snead, 286 Md. at 131, 406 A.2d at 103.

   The majority asserts that the "appellant's reliance on Snead is misplaced" because the appellant "did not seek to engage a private attorney; rather he desired to select his own attorney, and have that attorney reimbursed for services by the State."£ That fact, however, cannot serve as a basis for distinguishing Snead from the instant case.  In Snead, this Court did not consider any question concerning an indigent accused's right to representation by counsel.  Rather, the question presented was "whether Snead was 'denied his Sixth Amendment right of self-representation. . . .'"£ Snead, 286 Md. at 125, 406 A.2d at 99. More particularly, the question was whether Snead's statement constituted a declaration sufficient to reasonably support a conclusion that he desired self-representation. Here, as in Snead, the question before this Court does not concern an indigent accused's right to representation by counsel. Rather, the question is whether Colvin was denied his right to self-representation. More particularly, the question is whether Colvin's statement constituted a declaration sufficient to reasonably support a conclusion that he desired self-representation. Thus, the majority's distinction is meaningless.  Consequently, I do not agree with the majority that the "appellant's reliance on Snead is misplaced."

[***70]

   Additionally, defense counsel informed the trial court that the accused had prepared "some motions which involve proper person," thus suggesting that some of the accused's motions were requests for self-representation rather than for "hybrid" representation.  More important, the Assistant State's Attorney recognized that the accused's statement could reasonably support a conclusion that the accused desired self-representation. On the basis of the record, there can be no question but that the accused's statement could reasonably support a conclusion that the accused desired self-representation.

   Under the present circumstances, the accused's declaration was sufficient to alert the trial court that further inquiry was necessary.  Consequently, the accused's statement constituted a declaration sufficient to require an inquiry to ascertain whether he truly and unequivocally wanted self-representation. That inquiry was never made by the trial court.  Thus, the second phase of the inquiry governed by Md.Rule 723 c -- whether the right to assistance of counsel was competently and intelligently waived -- was not pursued.

   The failure of the trial court to pursue the inquiry essential to[***71] a determination of the right to proceed without counsel necessitates reversal of the judgments. n5£ Snead, 286 Md. at 131, 406 A.2d at 103. Accordingly, I would remand the case for a new trial.

n5 In light of this conclusion, I need not consider the other issues addressed in the majority opinion.

                       
COMPTROLLER OF THE TREASURY, INCOME TAX DIVISION et al. v.Robert E. HASKIN et al.  COMPTROLLER OF THE TREASURY, INCOME TAX DIVISION v.Edouard D. VALETTE COMPTROLLER OF THE TREASURY, INCOME TAX DIVISION v. Earl. L.HEACOCK et ux. 
Nos. 65, 66, 67, September Term, 1983
 
Court of Appeals of Maryland
 
298 Md. 681; 472 A.2d 70; 1984 Md. LEXIS 236

 March  12, 1984

   PRIOR HISTORY: [***1]  
65 - Certiorari to the Court of Special Appeals (Circuit Court for Baltimore City - Judge Joseph I. Pines).

   66 & 67 - Appeals from the Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals.

   66 - Judge Martin A. Wolff

   67 - Judge Raymond G. Thieme, Jr.

DISPOSITION: IN COMPTROLLER V. HASKIN, JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED.  IN COMPTROLLER V. VALETTE AND COMPTROLLER V. HEACOCK, JUDGMENTS OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED.  COSTS TO BE PAID BY APPELLANT.

CORE TERMS:  domicile, substantial evidence, matter of law, permanent, resident, license, change of domicile, federal government, bank account, indefinite, rented, driver, particular case, income tax, terminated, furniture, preparing, domiciled, speaking, enrolled, church, intend, bought, lessons, joined, opened, advice, temporary, unitary, abode

COUNSEL: John K. Barry, Assistant Attorney General, Annapolis, Maryland (Stephen H. Sachs, Attorney General, of Baltimore, Maryland, and Gerald Langbaum, Assistant Attorney General, Annapolis, Maryland, on the brief), for appellant.

   Charles C. Shelton, Baltimore, Maryland (Cynthia L. Leppert and Semmes, Bowen & Semmes, all of Baltimore, Maryland, on the brief), for Haskin et al.

   Edouard D. Valett, in proper person.

   Ronald U. Shaw, Baltimore, Maryland (Miles & Stockbridge, both of Baltimore, Maryland, on the brief), for Heacock et ux.

    Marvin J. Garbis and Garbis & Schwait, P.A., Baltimore, Maryland, John B. Jones, Jr., Joan E. Donoghue and Covington[***2] & Burling, Washington, District of Columbia, on the brief, for amicus curiae International Business Machines Corporation filed.

JUDGES: Murphy, C.J., and Smith, Eldridge, Cole, Davidson, Rodowsky and Couch, JJ.

OPINIONBY: COUCH

OPINION: [*683] [**71] Each of the cases before us today involves a common issue; therefore, we address them together.  The question presented in each is whether a Maryland domiciliary who accepts employment in a foreign country and moves there for an indefinite time, but later returns to Maryland, continues to maintain a Maryland domicile, and is therefore subject to state income taxes for the period of his absence.  More simply, the appellant presents us with the question of whether a special test of domicile is appropriate in this situation, or whether the existing test of domicile can be applied validly. As we shall discuss below, we find no authority or justification for altering the test for domicile, and accordingly, we shall affirm each of these cases.

   In each case the appellant, Comptroller of the Treasury, made an assessment for income tax against the appellees, Robert and Lois Haskin, Edouard D. Valette, and Earl and Nancy Heacock, for the years[***3] of their absence. In each case [*684] the taxpayers appealed to the Maryland Tax Court n1 alleging [**72] that they were not domiciled in Maryland during the years assessed.  The Tax Court reversed the assessment in each case.  In the Haskin case, the Comptroller appealed to the Baltimore City Court (now the Circuit Court for Baltimore City) which reversed the Tax Court.  However, upon the taxpayer's appeal to the Court of Special Appeals the circuit court was reversed, and the Tax Court's decision thereby upheld.  In the Heacock and Valette cases, the Circuit Court for Anne Arundel County affirmed the Tax Court decisions upon the Comptroller's appeal. n2 We granted certiorari in each case to determine a question of public importance.

n1 Such appeals are provided for by Maryland Code (1957, 1980 Repl.Vol., 1983 Cum.Supp.), Article 81, § 309(d).

n2 We granted certiorari prior to the Court of Special Appeals' consideration of the Heacock and Valette cases.

   I.

   The Facts

   A.
 
   In the Haskin case[***4] the evidence before the Tax Court consisted of Mr. Haskin's testimony and four exhibits introduced by him.  In 1977, Mr. Haskin resided in Bel Air, Maryland and worked as an engineering supervisor for Western Electric in Cockeysville, Maryland.  He had lived in Bel Air for ten years and he testified that his family and he were restless and anxious to make a move because this was the longest they had stayed in one place since they were married.  He also was interested in moving because he was somewhat ambivalent about an upcoming new assignment at Western Electric.

   In the summer of 1977 he learned of an opportunity with American Bell International (hereinafter "ABI"), a company formed by AT & T, the parent company of Western Electric, which had secured a contract to upgrade the Iranian telephone system.  After discussions with his family, Mr. Haskin [*685] took the initiative, applied for and began employment with ABI, and terminated his employment at Western Electric.  The ABI contract with Iran was for ten years but the company hoped to gain a permanent contract following that period, and also, considered possibly obtaining similar contracts elsewhere in the Mideast. Mr. Haskin[***5] intended to remain as long as a job was there; therefore, his intended length of stay was indefinite.

   In preparing to move, the Haskins followed ABI's advice. They rented rather than sold their Maryland home because of tax considerations.  They placed their furniture in storage because due to the expense of transporting it, the company would supply furniture in Iran.  Also on ABI's advice, the Haskins maintained their bank account in the United States for the depositing of salary checks. They moved before the end of 1977.

   Once in Iran the Haskins made efforts to assimilate themselves as permanent residents. Mr. Haskin obtained an unrestricted visa and a residence permit; he obtained an Iranian driver's license giving Iran as his permanent address, and he and his wife allowed their Maryland driver licenses to expire; his wife performed volunteer work at the Red Cross in hopes of obtaining a permanent paid position.  She joined two local clubs and they both took language Farsi lessons. In October of 1978, Mr. Haskin returned briefly to the United States with his son because he had discovered marijuana in his son's possession, an offense punishable by death in Iran.  He returned[***6] to the United States in search of a boarding school for his son, but he was unsuccessful in finding a satisfactory school because the schools required that the family live in the United States for supervision, so they both returned to Iran.

   Their stay in Iran ended in January of 1979 when revolutionary turmoil forced all ABI employees to leave the country.  Anticipating the political situation, Mr. Haskin had begun seeking positions somewhere with AT & T in the United States in the months before evacuation was forced [*686] because [**73] he hoped to avoid returning to Maryland.  However, because all ABI employees had to be relocated, the company policy was to return people to their prior location.  Western Electric agreed to take back former employees and Mr. Haskin thus returned to his job in Cockeysville.

   The Comptroller contended that the Haskins were domiciled in Maryland on December 31, 1978 because their Maryland domicile had never terminated. Therefore, they were subject to Maryland income tax for the year, and the Comptroller assessed them accordingly.
 
   B.

   In the Valette case, Mr. Valette's testimony was the only evidence before the Tax Court.  He testified that[***7] he had become accustomed to moving every few years.  He had lived in Maryland since 1960 but had changed homes three times within Maryland between that time and 1973.  He was employed as an engineer by Westinghouse in Cockeysville, Maryland.  In early 1974 he accepted a new position with Westinghouse in Iran which involved establishing an environmental laboratory for Iran Electric.  Westinghouse stated that the assignment was permanent and that no provision was made for reemployment with the company upon his return.

   Mr. Valette testified to several reasons which precipitated the family's move.  First, during 1973 the family was occupied with difficulties with a builder in remodeling an old home that they had bought and planned to move to. Mr. Valette described the experience as one of extreme hardship and mental anguish.  The family members therefore viewed the opportunity as a way to provide a needed change in their lives from this unhappy experience.  Further they viewed the move as an educational experience for the three children, an opportunity to travel, and a financial opportunity.

   In preparing for the move the Valettes rented their house, rather than selling it, because of[***8] tax considerations.  On the company's advice they maintained a bank account in the [*687] United States for the deposit of paychecks, and they also used the account for the agent to deposit rental payments from the house.  They sold their boat and one of their cars; stored another car with his parents in Illinois; and gave his father power of attorney over his stocks and bonds.  The company paid only for moving essential items overseas, requiring the Valettes to spend money in addition to the company stipend to move.  They stored their remaining furniture, rather than selling it, because the company paid for storage.

   In Iran, the Valettes rented a home since foreigners cannot purchase property.  The children were enrolled in school and Mr. Valette paid tuition. He opened a bank account, bought an automobile and a Moped, and obtained an international driver's license. The family became active in the church and Mr. Valette participated in and organized prayer group meetings and church functions.  Mrs. Valette worked teaching English to Iranian employees.  They both took lessons in the Iranian language, and Mr. Valette became fluent.  Mr. Valette joined several clubs and made[***9] Iranian friends.

   The situation changed when the Iranian government took over management of the English speaking school which the children attended, which brought about mismanagement and deterioration of the school.  Mr. Valette testified that because of the importance of the children's education and their lack of options to affect the situation, they decided to return to the United States.

   Initially, they went to his parents' home in Illinois but, after a brief visit, returned to Maryland and soon moved into their house which they had been renting.  Mr. Valette returned to Iran for seven more months to complete work, but he declined an opportunity to remain for another year because he wanted to rejoin his family.  Westinghouse offered him positions in several locations, and he chose to return to Cockeysville.
 
   [*688] [**74] We note that the Valettes did not vote during the period and their voting registration in Maryland lapsed.  Mr. Valette, on company instructions, maintained his driver's license for business reasons but Mrs. Valette's license expired.

   The Comptroller assessed Maryland income taxes against Mr. Valette for 1974 through 1977.

   C.

   In the Heacock case the[***10] record shows that the family moved to Maryland in 1962 when Mr. Heacock was employed by the federal government. In 1969, Mr. Heacock accepted an employment opportunity as an electronics engineer with the European Space Research Organization, known as "ESRO," in Holland.  He resigned from his position with the federal government and rejected the government's offer of a three year leave of absence, the length of his contract with ESRO, because he was eligible for contract renewals.

   In preparing to move to Holland the Heacocks closed all their Maryland bank accounts and opened an account in Illinois.  They rented their two residences in Bowie, Maryland, one of which had been their home, as investments.  They hired a Virginia real estate agent to manage the properties and opened a bank account in Virginia to be used for the receipts and expenses of the properties.  Mr. Heacock withdrew all funds from his federal government pension and they moved all their family possessions, including a car, to Holland.

   While in Holland the Heacocks joined local churches, took language lessons, and enrolled the children in Dutch speaking schools.  In 1972, Mr. Heacock applied for and received a promotion[***11] with ESRO that required them to move to France.  The children were enrolled in French speaking schools, and during this time they gave serious thought to remaining permanently.  The Heacocks bought several cars while in Europe, none of which met U.S. safety specifications and could not be used in the United States without modifications. When they ultimately returned to the United [*689] States, they brought back a Mercedes-Benz, but they then had to spend several thousand dollars modifying it to meet safety standards.  In 1975 they returned to Illinois for a vacation. During this time they purchased part of his uncle's farm and also executed new wills.  The wills extinguished earlier Maryland wills and they attempted to conform the wills to both Illinois and French law.  The wills were filed in Illinois but did specify that they were residents of France.

   The Heacocks return to the United States was precipitated by a change in ESRO employment policy.  When his contract was renewed at the end of 1975 he learned that most employees would receive career contracts as distinguished from the fixed term contract that had been used for everyone until then and which he was given again. [***12] He was not eligible for a career contract because he was not from a ESRO member nation.  Because the policy change caused him concern about his future job security, he changed his mind about remaining in Europe and began seeking employment in the United States.

   Mr. Heacock accepted a position with the federal government and returned to the United States in October of 1976.  They initially sought housing in northern Virginia but ultimately found and purchased a house in Annapolis.  We note finally that their youngest child, a third grader, could not read or write English at the time of their return.  Mrs. Heacock testified that they did not work with him in reading or writing English because they did not anticipate returning to the United States.

   The Heacocks were assessed resident state income tax for 1973 through 1976.

   II.

   Article 81 of the Maryland Code provides that final orders of the Tax Court may be appealed to a circuit court.  Maryland Code (1957, 1980 Repl.Vol., 1983 Cum.Supp.), Article 81, § 229(l).  Section 229 further provides [**75] that "[t]he circuit [*690] court shall affirm the Tax Court order if it is not erroneous as a matter of law and if it[***13] is supported by substantial evidence appearing in the record." Article 81, § 229(o).  Because the Comptroller argues that the Tax Court decisions were erroneous as a matter of law, we will first consider that question.  We, however, reject the Comptroller's argument.

   The issue of law in these cases focuses on the requisite test for domicile. If the appellees were domiciled in Maryland on the last day of the taxable year they are subject to Maryland income tax as residents of the state.  Maryland Code (1957, 1980 Repl.Vol.), Article 81, §§ 279(i), 288(a).  The question of domicile, therefore, is determinative.

   In Shenton v. Abbott, 178 Md. 526, 15 A.2d 906 (1940), we set out the meaning of domicile.
 
"A person's domicile is the place with which he has a settled connection for legal purposes, either because his home is there or because that place is assigned to him by the law.  It is well defined as that place where a man has his true, fixed, permanent home, habitation and principal establishment, without any present intention of removing therefrom, and to which place he has, whenever he is absent, the intention of returning.  While a person may have several residences, [***14] he can have only one domicile at a time . . . .

   It is a fundamental rule that, in order to effect a change of domicile, there must be an actual removal to another habitation, coupled with an intention of remaining there permanently or at least for an unlimited time.  But a change of residence, to enable a person to perform the duties of a civil office, whether elective or appointive, does not of itself constitute a change of domicile. No temporary residence, whether for the purposes of business, health, or pleasure, occasions a change of domicile. Even though a person may be absent from his domicile for many years, and may return only at long intervals, nevertheless he retains his domicile if he does not acquire a domicile elsewhere . . . .  'The essential fact that raises a [*691] change of abode to a change of domicile is the absence of any intention to live elsewhere.  [. . .]' Williams[on] v. Osenton, 232 U.S. 619, [624,] 34 S.Ct. 442, 443, 58 L.Ed. 758, [761 (1914) (Holmes, J.)]"
 
178 Md. at 530-31, 15 A.2d at 908. The test, therefore, is two-fold: "in order to establish a change of domicile, it must be shown not only that a new residence was acquired[***15] with the intention of remaining there, but also an abandonment of the old domicile so permanent as to exclude the existence of an intention to return to the former place." Id. at 534, 15 A.2d at 909-10.

   The controlling factor in determining a person's domicile is his intent. Dorf v. Skolnik, 280 Md. 101, 116, 371 A.2d 1094, 1102 (1977). Intent is best shown by objective factors, the two most important factors being where a person actually lives and where he votes.  Id. at 117, 371 A.2d at 1102-03. A number of other factors might be weighed in deciding a person's domicile. Id.; see Toll v. Moreno, 284 Md. 425, 444, 397 A.2d 1009, 1018 (1979); see also Bainum v. Kalen, 272 Md. 490, 499, 325 A.2d 392, 397 (1974) (other factors).  No single circumstance has ever been deemed conclusive.  Dorf v. Skolnik, 280 Md. at 117, 371 A.2d at 1102; Toll v. Moreno, 284 Md. at 443, 397 A.2d at 1018. Domicile by its very nature depends upon one's intent as objectively shown by a multitude of factors associated with that particular individual.  Toll v. Moreno, 284 Md. at 442, 397 A.2d at 1017. Finally, we note that in Toll we held that domicile is a unitary concept[***16] in Maryland.  Id. at 441, 397 A.2d at 1017. Although the rules for determining domicile may be applied differently in a particular case, the thrust thereof is to get the best indication of intent.  "However, such differences in applying the principles of domicile do not depend upon, or vary with, the purpose for [**76] ascertaining domicile or the type of case involved." Id.

   The Comptroller contends that the Tax Court erred as a matter of law because the results in these cases cannot stand in light of Shenton v. Abbott and Toll v. Moreno.  The Comptroller argues that because each of the appellees was [*692]certain to return from his job overseas, he could not establish a new domicile in the foreign country and his old domicile could not be terminated by his absence; therefore, they each remained Maryland domiciliaries throughout. The Comptroller's argument follows from a view of each appellee's move as merely a temporary job transfer with an international corporate employer.  The Comptroller contends that only the length of each appellee's stay was indefinite and that each appellee nevertheless was certain to return.

   We reject the Comptroller's argument[***17] that the results in the Tax Court were erroneous as a matter of law. We would agree that if an individual possesses a certain intention to return he does not terminate his domicile because he does not intend to establish a new domicile in the place of his new abode. However, this question of intent is a question of fact for each particular case. The Comptroller would have us assume this fact as a matter of law in cases fitting this scenario.  We decline to do so.  Intentions cannot be assumed merely because the move is connected with employment.  In Maryland, domicile is a unitary concept, the context is irrelevant to the issue, and it is to be resolved upon intent in the particular case. Because employment is a necessary consideration, the converse of the Comptroller's view can be equally valid, that is, that employment is sought because the individual seeks to change his domicile. The factual distinctions in comparing the Heacock case to the Valette and Haskin cases exemplify the difficulties of the Comptroller's approach.  If a certain intention to return is established as a matter of fact, then the rule of Shenton and Toll applies and the intended domicile controls. [***18]

   The Comptroller relies upon the Court of Special Appeals' decision in Comptroller v. Mollard, 53 Md.App. 631, 455 A.2d 72 (1983), in which the Comptroller prevailed.  In Mollard, domicile was at issue for tax purposes where a Maryland resident accepted a position with ITT, his employer, in Belgium, for nearly two years and then returned.  In that [*693] case that court held there was a certain intention to return to the United States, although not to Maryland; therefore, because he could not establish a new domicile his old domicile in Maryland continued.  Although his intention to remain in Belgium was indefinite, the court found that he did not meet the further requirement of Shenton that he intend to establish Belgium as his fixed present domicile. The court's holding that Mr. Mollard had a certain intent to return, however, does not support the Comptroller's contention that such an intent should be assumed in all such similar cases.  Intent is a factual question for each case.

   The Comptroller additionally suggests that the determination of domicile should not depend solely on the taxpayer's testimony of his intent to remain indefinitely.  The Comptroller would[***19] have us require objective factors independent of employment such as seeking immigrant status, or marrying a foreign national.  These suggestions are an attempt to have us create a special rule for this situation.  We have explained that this would be inconsistent with the law as it now stands.  Although such factors would provide strong and obvious evidence of a new domicile, it is not required.

   Having determined that the Tax Court did not err as a matter of law, all that remains for our consideration is whether the decisions were supported by substantial evidence. Substantial evidence means "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" See Bulluck v. Pelham Woods Apartments, 283 Md. 505, 512, 390 A.2d 1119, 1123 (1978) (quoting Snowden v. Mayor and City Council of Baltimore, 224 Md. 443, 448, 168 A.2d 390, 392 (1961) (quoting [**77] Consolidated Edison v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126, 140 (1938)). In Bulluck v. Pelham Woods Apartments, we said:

   "In applying the substantial evidence test, we have emphasized that a 'court should [not] substitute its judgment for the expertise[***20] of those persons who constitute the administrative agency from which the appeal is taken." Bernstein v. Real Estate Comm., 221 Md. 221, 230, 156 A.2d 657 (1959), appeal dismissed, 363 U.S. 419, 80 S.Ct. [*694] 1257, 4 L.Ed.2d 1515 (1960). We also must review the agency's decision in the light most favorable to the agency, since 'decisions of administrative agencies are prima facie correct,' Hoyt v. Police Comm'r, 279 Md. 74, 88-89, 367 A.2d 924 (1977), and "carry with them the presumption of validity,' Dickinson-Tidewater, Inc. v. Supervisor, supra, 273 Md. [245] at 256 [329 A.2d 18]; Heaps v. Cobb, 185 Md. 372, 378, 45 A.2d 73 (1945). Furthermore, not only is it the province of the agency to resolve conflicting evidence but where inconsistent inferences from the same evidence can be drawn, it is for the agency to draw the inferences.  Labor Board v. Nevada Consolidated Copper Corp., 316 U.S. 105, 106-107, 62 S.Ct. 960 [961], 86 L.Ed. 1305 (1942); Board v. Levitt & Sons, 235 Md. 151, 159-160, 200 A.2d 670 (1964); Snowden v. Mayor & C.C. of Balto., supra, 224 Md. [443] at 448 [168 A.2d 390]."
 
283 Md. at 513, 390 A.2d at 1124, [***21] quoted with approval in Courtney v. Board of Trustees, 285 Md. 356, 402 A.2d 885 (1978); see also Supervisor of Assessments of Howard County v. Carroll, 298 Md. 311, 469 A.2d 858 (1983).

   Although the Comptroller pointed to continuing contacts in Maryland in arguing that the Tax Court had erred as a matter of law, the Comptroller does not argue alternatively that the decisions are unsupported by substantial evidence. The record is supported by substantial evidence as we have indicated in reviewing the facts.  There is substantial evidence in each case that the appellee did not intend to return to Maryland, intended to remain in their new domicile indefinitely, and returned only upon the occurrence of unanticipated events.  Furthermore, determination of domicile is at bottom a determination of an individual's intent which is appropriately left to the factfinder.  Having reviewed the records in each case, and in view of the limited nature of review for substantial evidence, we are convinced that the decision in each case is supported by substantial evidence and must be affirmed.

   IN COMPTROLLER V. HASKIN, JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED.

   [*695] IN[***22] COMPTROLLER V. VALETTE AND COMPTROLLER V. HEACOCK, JUDGMENTS OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED.

   COSTS TO BE PAID BY APPELLANT. 

Lynda S. WERNSING et al. v. GENERAL MOTORS CORPORATION etal. 
No. 38, September Term, 1983
 
Court of Appeals of Maryland
 
298 Md. 406; 470 A.2d 802; 1984 Md. LEXIS 215

 February  3, 1984

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County - Judge Eugene M. Lerner).

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED.  COSTS IN THIS COURT TO BE PAID BY THE PETITIONERS.

CORE TERMS:  juror, dictionary, new trial, deliberations, bailiff, proximate cause, extraneous, jury room, foreman, proximate, dictionary definition, conversation, intermediate, impeachment, abuse of discretion, new trial motion, legal cause, proximately, longhand, cruise, post-verdict, consulted, presumed, impeach, clerk, unreasonably dangerous, juror misconduct, direct evidence, prejudicial, undermining

COUNSEL: Michael L. Wilsman, Baltimore, Maryland (Donald C. Allen and Allen, Thieblot & Alexander on the brief), Baltimore, Maryland, for appellants.

   Francis B. Burch, Jr., Baltimore, Maryland (Joseph G. Finnerty, Jr., Joel A. Dewey and Piper & Marbury, on the brief), Baltimore, Maryland, for appellee, General Motors Corp.

   L. Vernon Miller, Annapolis, Maryland (Rouse, Underwood & Miller, on the brief), Annapolis, Maryland, for appellee, Howard L. Seidel.

   Benjamin R. Goertemiller, Norman E. Parker, Jr. and Semmes, Bowen & Semmes, Baltimore, on the brief, for appellee, Gladding Chevrolet, Inc.

JUDGES: Murphy, C.J., and Smith, Eldridge, Cole, Davidson, Rodowsky and Couch, JJ.

OPINIONBY: RODOWSKY

OPINION: [*408] [**803] In this personal injury action, reported as General Motors Corp. v. Wernsing, 54 Md.App. 19, 456 A.2d 939 (1983), the Court of Special Appeals held that the trial court had abused its discretion by denying a new trial sought by defendants because of juror[***2] misconduct. A dictionary had been used in connection with deciding proximate causation during jury deliberations. We granted the plaintiffs' petition for certiorari and shall affirm.  While, on the facts of this case, we agree that a new trial is required as mandated by the Court of Special Appeals, we do not entirely accept that court's rationale.  It departs from settled Maryland law prohibiting a juror from impeaching the jury verdict.

   Petitioners are Mrs. Lynda Wernsing and her two children, James and Alexa. General Motors Corporation (GMC), Gladding Chevrolet, Inc. (Gladding) and Howard L. Seidel (Seidel), each of whom was a defendant in the trial court, are respondents.  A succinct statement of the facts was given by the intermediate appellate court (id. at 20-21, 456 A.2d at 940-41):

   On April 13, 1979, Violet Seidel, accompanied by her husband, the [defendant], Howard Seidel, drove their 1978 Chevrolet Monte Carlo to the Montgomery Ward Store in the Glen Burnie shopping center on Ritchie Highway. According to the testimony, Mrs. Seidel stopped the car parallel to the sidewalk in front of the store.  She alit from the vehicle and walked toward the store. At the[***3] same time, Mrs. Lynda Wernsing, the principal [plaintiff], was standing in the same lane of traffic, approximately two car lengths ahead of the Seidel vehicle.  Mrs. Wernsing was in the process of loading packages in the rear compartment of her Chevrolet Suburban.  Howard Seidel slid across the seat when his wife left the car, and he assumed the driver's position behind the steering wheel.  Seidel moved the gear shift lever from "Park" to "Drive." Several witnesses testified to a loud noise coming from the Seidel automobile. The Monte Carlo moved forward and pinned Mrs. Wernsing against the rear of her vehicle.  [*409] Seidel reversed the Monte Carlo, and backed away from Mrs. Wernsing, who fell to the street.  Seidel's vehicle then again moved forward where it rolled over Mrs. Wernsing.  Seidel once more reversed and proceeded backward until he struck another car.  The Monte Carlo, with Mr. Seidel still at the wheel, then proceeded forward past Mrs. Wernsing and halted several yards away.  Although there was an odor of alcohol on Seidel's breath, and he admitted to having had several drinks at a club, he was not charged with operating under the influence or driving while impaired. [***4]

   It was alleged that the Monte Carlo had a defective cruise control.  Expert testimony differed as to whether the cruise control was in fact defective. [Footnote omitted.]

   GMC's and Gladding's positions were that there was no defect at the time of the accident and that Seidel's negligent operation of the Monte Carlo caused it to strike Mrs. Wernsing.  Seidel's position was that he did nothing wrong and that the accident was caused by a defective cruise control.  Plaintiffs stressed that the cruise control was defective when the car was sold to Seidel. Determining proximate cause was the core of the jury's function on these liability issues.

   The case was submitted on special interrogatories.  They included the following, each of which the jury answered "yes."
 
1. Was the accident proximately caused by any negligence on the part of Howard Seidel?
[**804] 2. Was the Seidel car in a defective condition and unreasonably dangerous at the time of the accident thereby proximately causing the accident?
3. (Answer only if your answer to No. 2 is "yes".) Was the unreasonably dangerous condition present in the Seidel car at the time the car was sold to Mr. Seidel?

   In[***5] its charge the trial court included this passage:
 
[*410] To recover[,] the negligence must be a cause of an injury.  There may be more than one cause of an injury, that is, several negligent acts may work together.  Each person whose negligent act is a cause of an injury is responsible.  You are instructed that there may be more than one proximate cause of an accident and while negligence of a defendant must be a proximate cause in order to warrant recovery, it need not necessarily be the sole proximate cause of an accident.  The mere happening of the accident raises no presumption of negligence on the part of anyone and the burden of proof is upon the plaintiffs to prove . . . that a defendant was guilty of negligence and that such negligence was a direct and proximate cause of the accident.
 
Concerning strict liability in tort, the jury was instructed that the plaintiffs must prove, inter alia, that the Monte Carlo was in an unreasonably dangerous condition when sold and "that the defective condition was a proximate cause of the accident."

   Verdicts were rendered of $1,600,000 to Mrs. Wernsing, $15,000 to James and $15,000 to Alexa against GMC, Gladding[***6] and Seidel, jointly. Respondents moved for a new trial and alternatively for remittiturs.  The circuit court denied an unconditional new trial but did order a new trial unless remittiturs were accepted.  Petitioners agreed to the reductions, and judgments were entered in favor of Mrs. Wernsing for $750,000, of James for $7,500 and of Alexa for $5,000.

   On this petition we are concerned with the intermediate appellate court's remand for a new trial due to juror misconduct. Because petitioners contend that the Court of Special Appeals improperly considered evidence by which jurors impeached their verdict, we first consider the proof of the claimed misconduct.

   (1)

   At the hearing on the motion for a new trial evidence that a dictionary had been utilized in jury deliberations consisted of (1) jurors' affidavits, (2) a bystander's affidavit, (3) testimony [*411] of the court bailiff, and (4) certain writings made contemporaneously with the jury's deliberations. Attached to GMC's new trial motion were affidavits from four jurors. Each made oath that the foreman had obtained a dictionary, read to the jury from it, and caused the particular affiant to change from a "no" to a "yes" [***7] vote on issue 2. While there were variations between these affidavits, three of them said the foreman had read the definitions of "proximate," "proximately" and/or "legal." These four jurors swore that, as a result, they believed their task was to decide if it were possible that the Monte Carlo caused the accident, or was defective.  The bystander's affidavit stated that she was part of a group, including the foreman and two other jurors, who were conversing after the verdict had been returned.  She said the foreman stated that he had been able to obtain unanimity on question 2 by reading dictionary definitions to his colleagues.
 
   The Court of Special Appeals relied upon this evidence in remanding for a new trial. n1 Petitioners correctly point out that [**805] consideration of these affidavits was impermissible.  As recently as Oxtoby v. McGowan, 294 Md. 83, 101, 447 A.2d 860, 870 (1982) we reiterated the well-settled Maryland rule that a juror cannot be heard to impeach his verdict.  In that medical malpractice case we excluded from consideration juror affidavits that a medical book had been brought into the jury room and examined by some of the panel.  The post-verdict[***8] affidavits in the instant case are a [*412] particularly gross example of soliciting a reconstruction of a juror's mental processes in reaching the verdict.  This is precisely the type of attempted undermining of verdict finality which Maryland law does not permit.  In addition to Oxtoby, supra, see Christ v. Wempe, 219 Md. 627, 641, 150 A.2d 918, 925 (1959); Williams v. State, 204 Md. 55, 67-72, 102 A.2d 714, 720-21 (1954); Kelly v. Huber Baking Co., 145 Md. 321, 328, 125 A. 782, 785 (1924); Brinsfield v. Howeth, 110 Md. 520, 530-31, 73 A. 289, 294 (1909); Browne v. Browne, 22 Md. 103, 113-14 (1864); Ford v. State, 12 Md. 514, 546 (1859); Bosley v. The Chesapeake Insurance Co., 3 G & J 450, 473 (1831) (note); Braun v. Ford Motor Co., 32 Md.App. 545, 551-54, 363 A.2d 562, 566-68, cert. denied, 278 Md. 716 (1976); Dixon v. State, 27 Md.App. 443, 448, 340 A.2d 396, 400, cert. denied, 276 Md. 741 (1975); 2 J. Poe, Pleading and Practice at Law 329 (H. Tiffany 5th ed. 1925).  The affidavit by the participant in the post-verdict conversation between certain jurors attempts to prove the truth of the content of the statements made by the[***9] foreman in that conversation. Even if we assume the affidavit is otherwise admissible, it falls within the prohibition described above.

n1 Specifically the intermediate appellate court stated:

   Four jurors submitted affidavits to the effect that the dictionary definition of "legal" resolved the matter in their minds.  The jury seemingly decided that "proximate cause" meant "could it be possible."

   We find it hard to believe that such an approach to an issue as "could it be possible" would, absent a law of physics or mathematical certainty to the contrary, result in any other answer than "yes."

   The bailiff's testimony, coupled with the affidavits of the four jurors clearly demonstrated substantial prejudice to the appellants.  [54 Md.App. at 30, 456 A.2d at 945.]

   The opinion of the Court of Special Appeals undertook to distinguish the prohibition against verdict impeachment on the ground that the jurors' affidavits in this case merely corroborated the bailiff's testimony. n2 Oxtoby, supra, rejected[***10] an argument based on substantially the same purported justification for undermining the Maryland rule.  That holding was, in turn, based upon Christ v. Wempe, supra, which held that proffered testimony of jurors was properly excluded.  This was so even though the proffer was directed to a matter in evidence through the affidavit of a court clerk [*413] who had described his conversation with the foreperson concerning the relationship between special issues submitted to the jury.

n2 On this point the intermediate appellate court said (54 Md.App. at 30, 456 A.2d at 945):
 
The four jurors did not launch the invasion of their own verdict.  The beachhead was established through the testimony of the errant bailiff; the four jurors served solely as support troops, verifying the breach of the jury's sequestration via the introduction of the dictionary as well as that book's effect on the ultimate outcome.

   On the other hand, the testimony of the bailiff presents "a different situation" and is competent. [***11] Christ v. Wempe, supra, 219 Md. at 642, 150 A.2d at 926. Similarly, the jury notes, hereinafter described, are competent proof.  As documents generated during the jury's deliberations, they do not suffer the taint of possible post-verdict importuning.  Whether respondents have even established that extraneous matter was before the jury must be answered within a framework limited to those two evidence categories.

   Jury deliberations commenced sometime on the morning of October 23, 1981. Juror No. 1, Willis W. Casto (Casto), was designated as foreman. During sequestration at least two pieces of paper passed from the jury room to the bailiff. After the verdict was rendered, these were given by the bailiff to the court clerk and retained by the clerk, in an envelope marked "jury notes," until the hearing on the new trial motion. In his testimony at that hearing the bailiff described two events during jury deliberations, but he was uncertain of their sequence.  At one point a note was passed from the jury room to the judge. It reads:
 
We are hung on # 2

   Can we have a clarification on question # 2?

   IE: proximately [Underscoring in original.]
 
[**806] [***12] The reply returned to the jury appears in longhand on the same side of the piece of paper.  It reads:

   rec'd 2:00 PM

   10/23/81

   Proximate cause is legal cause

   E. Lerner

    Judge
 
At another time during jury deliberations Casto asked the bailiff for a dictionary. This was obtained by the bailiff through his supervisor and handed to the foreman. Another [*414] jury note, retained in the clerk's envelope, contains longhand reading:
 
We need a Dictionary!

   # 1

   Will Casto
 
The particular dictionary furnished, a copy of Webster's Seventh New Collegiate Dictionary, was identified by the bailiff and admitted into evidence.

   On the reverse side of the note signed by the judge there is other longhand which reads:
page 482

   Webster's Seventh New Collegiate

   Dictionary
Legal cause

   having a formal status

   derived from law often

   without basis in actual fact

   # 1

   Will Casto
 
That definition is identical to definition 2 b for "legal" in the dictionary supplied by the bailiff. n3

n3 After the jury's verdict had been received, counsel for GMC requested that the jury's note asking for further clarification be retained.  Neither the court nor apparently counsel noted any writing on the reverse side of the paper at that time.

[***13]

   In denying a new trial the circuit judge emphasized that he would not permit jurors to overturn their verdicts by post-trial affidavits, because it would create havoc.  However, he did not differentiate between the juror affidavits and the other forms of evidence.  The issue is whether this record, when consideration is limited to the bailiff's testimony and the jury notes, demonstrates an abuse of discretion in denying the new trial motion.

   (2)

   The problem of the effect on proceedings where one or more jurors have consulted a dictionary during deliberations has been presented in a number of decisions in other states.  It appears to be the near universal consensus that a new trial is not awarded simply because a dictionary was before [*415] the jury.  The court must conclude that there was prejudice to the complaining party.  See Annot., 54 A.L.R.2d 738 (1957). Analysis by other courts, however, diverges in the approach taken to determine whether use of a dictionary was prejudicial. Further complexities arise in analogizing to Maryland from decisions in other states where the verdict impeachment prohibition is not as stringently applied as here.

   Some decisions require[***14] that the movant for a new trial essentially prove prejudice in fact.  In the absence of such a showing, the new trial is denied.  See Dulaney v. Burns, 218 Ala. 493, 119 So. 21 (1928); Lane v. Mathews, 74 Ariz. 201, 245 P.2d 1025, rev'd on other grounds on reh'g, 75 Ariz. 1, 251 P.2d 303 (1952); People v. Jedlicka, 84 Ill.App.3d 483, 405 N.E.2d 844 (1980); In re Estate of Cory, 169 N.W.2d 837 (Iowa 1969); State v. Duncan, 3 Kan.App.2d 271, 593 P.2d 427 (1979); Kaufman v. Miller, 405 S.W.2d 820 (Tex.Civ.App.1966), rev'd on other grounds, 414 S.W.2d 164 (Tex.1967); Wright v. Clark, 50 Vt. 130 (1877); Rocky Mountain Trucking Co. v. Taylor, 79 Wyo. 461, 335 P.2d 448 (1959). In their brief to this Court petitioners have emphasized Rocky Mountain Trucking Co. v. Taylor, supra. Wyoming, like Maryland, will not consider juror affidavits offered to impeach the verdict.  The result in Rocky Mountain Trucking was that the only competent proof showed that the bailiff had furnished a dictionary to the jury but there [**807] was no proof as to any use made of the dictionary during deliberations. Here, on the other hand, the respondents' competent [***15]proof goes beyond the mere request for and presence of a dictionary in the jury room.

   Other courts have presumed prejudice based solely on use of a dictionary during jury deliberations, with the burden on the adversary to rebut.  Under these cases the court may conclude that there is prejudice without proof of the purpose for which the book was consulted. See Grissinger v. Griffin, 186 So.2d 58 (Fla.Dist.Ct.App.1966) (judgment reversed and case remanded for new trial); Daniels v. Barker, 89 N.H. 416, 200 A. 410 (1938) (same); and State v. Holmes, 17 Or.App. 464, [*416] 522 P.2d 900 (1974) (same).  In State v. Holt, 79 S.D. 50, 107 N.W.2d 732 (1961) the court presumed prejudice from the jurors' use of a dictionary to look up the words, "corporal," "assault" and "battery," but agreed with the trial judge that the presumption had been overcome because affidavits from all twelve jurors stated that the definitions did not influence them in arriving at their verdict.

   We reject the rule which presumes prejudice solely from delivery of a dictionary into the jury room without the consent of the court and all parties. The result of such a rule in Maryland would be to[***16] overturn verdicts automatically in nearly all cases where this irregularity occurs.  The reason is that the party opposing a new trial would almost never be able to demonstrate the absence of harm from the presence in the jury room of the extraneous material, because jurors may not be interrogated concerning their deliberations in order to impeach the verdict.  It is true that some courts permit juror affidavits for the purpose of sustaining a verdict; but that is not Maryland practice.  If the lid on this can of worms is partially lifted to allow juror interrogation to sustain the verdict, the party opposing a new trial should not be limited to resting exclusively on a presumption.  The opponent should also be able to seek countervailing affidavits from other jurors or to insist upon live testimony and cross-examination.  Either approach is contrary to Maryland policy.

   Further, a presumption of prejudice from the unauthorized presence of a dictionary is inconsistent with the rule we apply when, in the course of trial and before the jury retires, it is learned that a juror has received information concerning the case from a source outside of the record.  In those circumstances prejudice[***17] is not presumed; rather the test is "whether the conversations were 'of such a nature that their effect must fairly be held to have been to deprive the injured party of a fair and impartial trial.'" Safeway Trails, Inc. v. Smith, 222 Md. 206, 217, 159 A.2d 823, 829 (1960), quoting Rent-A-Car Co. v. Globe & Rutgers Fire Insurance Co., 163 Md. 401, 409, 163 A. 702, 705 (1933). And [*417] see Joseph F. Hughes & Co. v. Stockhausen, 212 Md. 559, 129 A.2d 844 (1957).

   Frequently in these "dictionary cases" the record reflects what definitions a juror or jury considered.  When that is known, one factor which bears significantly on prejudice is how the definitions derived from the dictionary compare with the meanings of the same terms as used in the instructions to the jury by the trial court.  In Dongo v. Banks, 448 A.2d 885 (Me.1982) no error was found in the award of a new trial where the jury had referred to a legally incorrect definition of "proximate" in a dictionary. Indeed, the appellate court said that the trial judge "could hardly have done otherwise" than grant the new trial. Id. at 889. "Proximate" was also involved in Banaszek v. F. Mayer Boot & Shoe [***18]  Co., 155 Wis. 127, 143 N.W. 1062 (1913). Because of the difference between the dictionary and legal definitions the grant of a new trial was undisturbed, despite affidavits from eleven jurors, comprising all who could be found, that they had not been influenced by the dictionary. A jury's unauthorized use of a dictionary to learn the meaning of "undue" has resulted in a new trial when those definitions were "too broad and inappropriate to be applied to the evidence." See In re Collins' Will, 18 N.J.Misc. 492, 496, [**808]15 A.2d 98, 101 (1940), cert. denied sub nom., Application of Phelan, 126 N.J.L. 410, 19 A.2d 792 (1941). Other cases have sustained the denial of a new trial, in part because of the lack of any significant difference between the dictionary definition and the meaning intended in the judge's instructions.  See State v. Amorin, 58 Haw. 623, 574 P.2d 895 (1978); Pulkrabek v. Lampe, 179 Kan. 204, 293 P.2d 998 (1956); Dutton v. Southern Pacific Transportation, 561 S.W.2d 892 (Tex.Civ.App.), rev'd on other grounds, 576 S.W.2d 782 (Tex.1978); Wilson v. State, 495 S.W.2d 927 (Tex.Cr.App.1973); State v. Donald, 90 Utah 533, 63 P.2d 246[***19] (1936); Zanetti Bus Lines, Inc. v. Logan, 400 P.2d 482 (Wyo.1965).

   In the matter sub judice there is a very substantial difference between the trial judge's use of "legal cause" as [*418] synonymous with proximate cause and the dictionary definition copied by Casto.  Petitioners, however, argue that the Casto notation fails to prove prejudice, particularly because its effect, if any, on any juror is unknown, once the affidavits have been excluded from consideration.  In effect petitioners urge that prejudice can only be shown by demonstrating that one or more jurors were in fact influenced by legally incorrect matter found in a dictionary. As a practical matter, meeting such a standard would seem to be impossible because, in Maryland, direct evidence of the effect of the extraneous material on any juror's decision could not be presented to upset the verdict.  Cf. Alvarez v. People, 653 P.2d 1127 (Colo.1982) (reversal and remand for new trial where affidavits of two jurors disclosed that they concluded their doubts were not reasonable after consulting dictionary for definition of "reasonable").

   We therefore look to the decisions of those courts which prohibit impeachment. [***20] Gertz v. Bass, 59 Ill.App.2d 180, 208 N.E.2d 113 (1965) bears similarities to the case before us.  Because Illinois law precludes jurors' affidavits, the only competent evidence in that case showed that the jury had requested and received a dictionary which was later made an exhibit on the new trial motion. Comparison of key terms in the court's charge, involving a guest statute, with those terms as defined in the dictionary reflected substantial differences and consequently a potential for prejudice.  In remanding for a new trial the court addressed the unknown use made of the dictionary.
 
It is reasonable to infer from the fact that the jury specifically requested the dictionary, that they made use of the volume in determining the meaning of the crucial terms and were influenced thereby to the prejudice of the plaintiffs. [Id. at 185, 208 N.E.2d at 116.]

   The instant case presents a more specific record because the Casto memorandum shows the precise term from the instructions ("legal cause") for which the dictionary was used.  Here, without considering juror affidavits, we know (1) that a dictionary was requested and received by the jury; [*419] (2) the [***21]particular dictionary supplied; (3) that it was used by at least one juror; and (4) the particular definition considered by that juror. The happenstance of the Casto memorandum makes the record before us comparable to the record in a state which permits jurors to describe extraneous matter brought into the jury room but which prohibits describing its effect on deliberations. Such a case is Palestroni v. Jacobs, 10 N.J.Super. 266, 77 A.2d 183 (1950), a suit on a building contract.  If jurors' mental processes were excluded, the record showed that a dictionary had been consulted to ascertain the definition of a word in the specifications.  The court, through an opinion by then New Jersey Superior Court Judge William Brennan, held that
 
the test whether a new trial will be granted is whether the extraneous matter could have a tendency to influence the jury in arriving at its verdict in a manner inconsistent with the legal proofs and the court's charge.  If the extraneous matter has that tendency on the face of it, a new trial should be granted without further [**809] inquiry as to its actual effect.  [Id. at 271, 77 A.2d at 185.]
 
There was a remand for a[***22] new trial.

   Similar is State v. Ott, 111 Wis.2d 691, 331 N.W.2d 629 (Wis.App.1983). One juror had brought into the deliberations a definition of "depraved," but the record did not contain the exact dictionary definition used.  After matching the definition used in the court's charge against those contained in a number of standard dictionaries, the court concluded that the dictionary definitions were significantly broader than the technical meaning embodied in the instructions. Because "the probable effect upon a hypothetical average jury would be prejudicial," there was a remand for a new trial. Id. at 696, 331 N.W.2d at 632. 

   The Court of Special Appeals clearly identified the problem in the instant case.  It is to balance the right to a fair trial with the policy prohibiting impeachment by a juror of the verdict.  Where, as here, the precise extraneous matter is known but direct evidence as to its effect on the [*420] deliberations is not permitted, a sound balance is struck by a rule which looks to the probability of prejudice from the face of the extraneous matter in relation to the circumstances of the particular case.  It is the function of the trial judge when[***23] ruling on a motion for a new trial to evaluate the degree of probable prejudice and whether it justifies a new trial. That judgment will not be disturbed but for an abuse of discretion.

   Under the unusual facts of the case at bar, we hold that there was an abuse of discretion. This was a trial in which the jury's findings concerning proximate cause controlled the major liability issues.  By his note to the jury the trial judge had equated proximate cause with legal cause. In consulting the dictionary definition of "legal," Casto was sufficiently impressed with definition 2 b to write it out in longhand. Casto's memo reflects that he transposed that secondary definition of "legal" to "Legal cause," thereby including in legal (proximate) cause the element: "often without basis in actual fact." If this approach to proximate cause were in fact applied by the jury, or even by Casto alone, it would mean that all of the evidence, including expert opinions, in this protracted and complex products liability case would have been disregarded.  That degree of probable prejudice is so great that it was an abuse of discretion to deny a new trial.

   JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. [***24] COSTS IN THIS COURT TO BE PAID BY THE PETITIONERS. 

James L. STACKHOUSE, Jr. v. STATE of Maryland 
No. 4, September Term, 1983
 
Court of Appeals of Maryland
 
298 Md. 203; 468 A.2d 333; 1983 Md. LEXIS 341

 December  23, 1983

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County - Judge Morris Turk) 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 REMAND TO THAT COURT FOR A NEW TRIAL.  COSTS TO BE PAID BY ANNE ARUNDEL COUNTY.

CORE TERMS:  warrantless search, destruction, exigent circumstances, search warrant, contraband, exigency, arrest, arrestee, removal, attic, narcotic, destroyed, police officers, seizure, foster sister, sister, probable cause, emergency, imminent, drawer, gun barrel, searching, intrusion, weapon, incident to arrest, police action, destroy, trail, concealed, robber

COUNSEL: Gary W. Christopher, Assistant Public Defender, Baltimore, Maryland (Alan H. Murrell, Public Defender, Baltimore, Maryland, on the brief), for appellant.

   Jillyn K. Schulze, Assistant Attorney General, Baltimore, Maryland (Stephen H. Sachs, Attorney General, Baltimore, Maryland, on the brief), for appellee.

JUDGES: Murphy, C.J., and Smith, Eldridge, Cole, Davidson, Rodowsky and Couch, JJ.  Murphy, C.J., and Smith, J., dissent.

OPINIONBY: COUCH

OPINION: [*206] [**335] The issue in this case is whether evidence seized contemporaneously with arrest in a warrantless search of an area beyond appellant's immediate control is admissible on the ground that another person might have concealed or destroyed the evidence.  In a trial before the court, the evidence was admitted and appellant was found guilty of robbery with a deadly[***2] weapon and burglary.  The Court of Special Appeals found no error in admitting the evidence and affirmed in an unreported per curiam opinion.  We granted certiorari to consider this important issue.  We find that in introducing the evidence in question the State did not meet its burden. Accordingly, we reverse.
 
   [*207] I

   On July 14, 1981, Countryman Arthur Wong was on a business trip and was staying at the Holiday Inn, Number 2, in Glen Burnie, Maryland.  At 4:30 in the morning, the crash of the motel room window breaking awakened Mr. Wong.  The lamp was on, and Mr. Wong observed a man wearing a floppy hat, gloves, and sneakers, and holding what appeared to be a gun barrel, ten to twenty-four inches long, come through the window.  The man demanded money, which Mr. Wong gave him, and he also took Mr. Wong's wallet before leaving.

   The police arrived and showed Mr. Wong an array of ten photographs from which he selected the photograph of James Stackhouse, the appellant.  The investigating officers knew that James Stackhouse's address was 3 Warfield Road. Mr. Wong's identification was corroborated by a police tracking dog who had traced the scent of the robber from the motel[***3] to appellant's address. The officers went to that address, but when appellant answered the door, he identified himself as James Lewis and told the officers that James Stackhouse had left [**336] five minutes earlier.  Appellant would not show any identification, but a woman who was present, later identified as appellant's foster sister, confirmed for the police that he was James Lewis.

   The officers told appellant that he matched the description of the robber, took him into custody, placed him in the police car, and drove him back to the Holiday Inn.  Mr. Wong told the police that appellant looked like the robber, but Mr. Wong was reluctant to identify him definitely as the robber. The police released appellant, who told them that he was going home.

   Officer Thomas then checked with the Central Records Division whose records confirmed that James Lewis and James Stackhouse were the same person.  Officer Thomas called appellant's home and verified that appellant was still there. Officer Thomas then learned that two active arrest warrants, charging James Stackhouse with unrelated armed [*208] robberies at the Holiday Inn, existed.  Officer Thomas requested several police cars[***4] be sent to surround the house immediately, and he arranged for two detectives to meet him and several police units at the house.

   When the police arrived, appellant's foster sister came out of the house, told the police that she was alone, and then reentered the house.  Officer Thomas and four other officers entered the house, armed with the arrest warrants, and found the sister on the couch with her baby.  The officers directed her into the kitchen and then took her and the baby out of the house.

   The officers started searching for appellant, beginning in the basement and coming lastly to the attic. Access to the attic was gained through a panel in the ceiling of the second floor hallway.  Officer Thomas climbed into the hatchway of the dark attic and shined his flashlight toward the south side of the house where he saw a black male lying in the insulation between the rafters. Officer Thomas called out to appellant that he could see him, and told him to put his hands up and crawl toward the hatchway.  Appellant complied and he was taken out of the attic to the second floor hallway and handcuffed.  Officer Thomas then went into the attic to where appellant had been and, two feet [***5]away, recovered a shotgun barrel, approximately eighteen inches long. Appellant testified that the gun barrel had been buried in the insulation near where he had been hiding.

   The admissibility of the gun barrel into evidence is the issue presented in this appeal.

   II

   A.

   In Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), the Supreme Court established the permissible scope of a warrantless search or seizure incident to a lawful arrest. Incident to such an arrest, the arresting officer may search the person arrested for weapons, to protect the safety of the officer and others, and for evidence, [*209] to prevent its concealment or destruction. Id. at 763, 89 S.Ct. at 2040, 23 L.Ed.2d at 694. The officer may also search the area within the arrestee's reach from where he might grab a weapon or evidence.  Id.  See also Bouldin v. State, 276 Md. 511, 518, 350 A.2d 130, 134 (1976). The Court noted that a table or drawer in front of the arrestee was an example of the permissible scope of the rule because of the possibility that an arrestee could grab for a hidden gun.  Id. In Foster v. State, 297 Md. 191, 464 A.2d 986 (1983), this Court approved[***6] of a search of a partially opened drawer behind the arrestee as within Chimel and noted that handcuffing the arrestee did not eliminate the possibility that she could gain access to the partially open top drawer of the nightstand.  Id. at 220, 464 A.2d at 1001. The drawer was a natural place to conceal a weapon and the arrestee might be able to break free from the officer's restraint.  Id.

   Chimel established the rule that incident to arrest, a search may not go beyond the area of the arrestee's person and the area [**337] within his immediate control without the authority of a search warrant, except in the situation of well recognized exceptions.  395 U.S. at 763, 89 S.Ct. at 2040, 23 L.Ed.2d at 694. The Court, in dicta, thus approved of a second prong of justification for a warrantless search incident to arrest by giving continuing recognition to the exceptions for emergencies and exigencies that in previous cases justified an exemption from the constitutional mandate of a search warrant. Id.; see McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948). Before discussing this second justification, we turn briefly to New York v. Belton,[***7] 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), which the State contends expanded Chimel to include the area of a person's control just before his arrest.

   In New York v. Belton, the Supreme Court upheld the warrantless search of the zippered pockets of a jacket found inside the passenger compartment of an automobile after the occupants had been ordered out of the car and placed under arrest. Id. at 456, 462, 101 S.Ct. at 2862, 2865, 69 L.Ed.2d at 772, 776. The Court decided the case based on [*210] Chimel and did not consider the so-called "automobile exception," Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), in the disposition of the case.  453 U.S. at 462 n. 6, 101 S.Ct. at 2865 n. 6, 69 L.Ed.2d at 776 n. 6. The Court was persuaded by Professor LaFave's argument that law enforcement required workable rules and case-by-case adjudication produced highly sophisticated rules that were impossible for the officer in the field to apply.  453 U.S. at 458, 101 S.Ct. at 2863, 69 L.Ed.2d at 773-74 (quoting LaFave, "Case-By-Case Adjudication" Versus "Standardized [***8]  Procedures": The Robinson Dilemma, 1974 Sup.Ct.Rev. 127, 142). To accomplish a workable rule, the Court generalized from Chimel that "articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within 'the area into which an arrestee might reach in order to grab a weapon or evidentiary ite[m].'" Id. at 460, 101 S.Ct. at 2864, 69 L.Ed.2d at 774-75 (quoting Chimel, 395 U.S. at 763, 89 S.Ct. at 2040, 23 L.Ed.2d at 694); see Gee v. State, 291 Md. 663, 666-68, 435 A.2d 1387, 1389 (1981). By establishing a hard line definition of the arrestee's reach, the Court provided the bright line test needed for effective law enforcement.  See Gee v. State, 291 Md. at 668-69 n. 2, 435 A.2d at 1389 n. 2 (quoting Robbins v. California, 453 U.S. 420, 431, 101 S.Ct. 2841, 2848-49, 69 L.Ed.2d 744, 753-54 (1981) (Powell, J., concurring)).

   The Court noted, however, that this hard line rule was to determine the meaning of Chimel only in the particular, and problematic context of automobile searches.  453 U.S. at 460 n. 3, 101 S.Ct. at 2864 n. 3, 69 L.Ed.2d at 775 n. 3. The rule in Belton "in[***9] no way alters the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests." Id. Thus, although the Belton rule does not rely on the rationale of the automobile exception, it nevertheless is limited to the context of automobiles.  The establishment of workable, bright line rules should not be distorted by blurring the lines [*211] of those rules.  Stretching clear cut rules by analogizing will result in the same confusion that presented the need for such rules in the first place.

   Furthermore, we will not apply the generalization concerning the arrestee's reach, that was necessary in Belton because of the recurring problem of automobile searches, to the dwelling house, which always has been accorded the highest degree of fourth amendment protection.  Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Payton v. New York, 445 U.S. 573, 585-91, 100 S.Ct. 1371, 1380-82, 63 L.Ed.2d 639, 650-53 (1980); Duncan v. State, 281 Md. 247, 254, 378 A.2d 1108, 1111-12 (1977). The Supreme Court applied the Chimel rationale in Belton, and that original rationale is soundly[***10] continued in the context of the dwelling house.  Moreover, we believe Chimel provides a workable [**338] rule for this situation.  See New York v. Belton , 453 U.S. at 471, 101 S.Ct. at 2869, 69 L.Ed.2d at 782 (1981) (Brennan, J., dissenting).  In Chimel, the Supreme Court overturned the rule "that a warrantless search 'incident to a lawful arrest' may generally extend to the area that is considered to be in the 'possession' or under the 'control' of the person arrested." 395 U.S. at 760, 768, 89 S.Ct. at 2038, 2043, 23 L.Ed.2d at 692, 697 (overruling United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950)). We, therefore, reject the State's argument for an expansive reading of New York v. Belton.

   B.

   In holding that the police may search the area within the arrestee's reach incident to a lawful arrest, the Supreme Court in Chimel acknowledged in dicta that exigent circumstances provided a second recognized justification for a warrantless search or seizure incident to arrest. 395 U.S. at 763, 89 S.Ct. at 2040, 23 L.Ed.2d at 694. In fact, the rule developed in Chimel was based on an exigency rationale, that is, the safety of the officer[***11] and the preservation of evidence.  Recognition that exigent circumstances might [*212]justify a warrantless search or seizure dates well back.  See McDonald v. United States, 335 U.S. 451, 454-456, 69 S.Ct. 191, 192-93, 93 L.Ed. 153, 158 (1948); Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948), overruled in part, United States v. Rabinowitz, 339 U.S. 56, 66, 70 S.Ct. 430, 435, 94 L.Ed. 653 (1950), reaff'd, Chimel v. California, 395 U.S. 752, 768, 89 S.Ct. 2034, 2043, 23 L.Ed.2d 685, 697 (1969) (overruling Rabinowitz); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925). The justification, however, remains a narrow one.

   The meaning of exigency implies urgency, immediacy, and compelling need. Just as the exigencies relied upon in developing the rule in Chimel were of immediate concern to the officer, the other cases upholding warrantless searches or entries based on exigent circumstances rely on conditions equally urgent. For example, in Davis v. State, 236 Md. 389, 204 A.2d 76 (1964), cert. denied, 380 U.S. 966, 85[***12] S.Ct. 1113, 14 L.Ed.2d 156 (1965), a warrantless entry was justified by the demand to preserve human life where the police discovered carnage in the backyard and could see an apparently lifeless body through the window.  Id. at 395-96, 204 A.2d at 79. The Court quoted examples of exigent circumstances such as "'smoke coming out a window or under a door, the sound of gunfire in a house, threats from the inside to shoot through the door at police, [or] reasonable grounds to believe an injured or seriously ill person is being held within.'" Id. at 396, 204 A.2d at 81 (quoting Wayne v. United States, 318 F.2d 205, 212 (D.C.Cir.), cert. denied, 375 U.S. 860, 84 S.Ct. 125, 11 L.Ed.2d 86 (1963)). See also, e.g., Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 1949, 56 L.Ed.2d 486 (1978) (warrantless entry into a burning building to put out a blaze); United States v. Miller, 589 F.2d 1117, 1126 (1st Cir.1978), cert. denied, 440 U.S. 958, 99 S.Ct. 1499, 59 L.Ed.2d 771 (1979) (warrantless entry and reentry of a boat where drowning suspected and tidal flow created [*213] need for swift action); Lebedun v. State, 283 Md. 257, 266-70, 390 A.2d 64, 68-69[***13] (1978) (discussing above cases).

   Upholding warrantless searches based upon exigent circumstances involves two principal categories of cases: "hot pursuit," and destruction or removal of evidence.  In Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), the Supreme Court validated the so-called "hot pursuit" exception.  The police arrived at the house that the armed robber had entered only minutes after the robbery.  The Court upheld the warrantless search of the house for persons and weapons, stating that "[t]he Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others." 387 U.S. at 298-99, [**339] 87 S.Ct. at 1645-46, 18 L.Ed.2d at 787.

   The Supreme Court also has recognized that the destruction or removal of evidence is an exigency that renders a warrantless search reasonable under the fourth amendment.  In Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), the Court upheld a warrantless search incident to arrest where the police had ample evidence supporting a reasonable belief that the suspect was in possession of marijuana, [***14] which could be quickly and easily destroyed, and, further, the officers reasonably believed such destruction was imminent. 374 U.S. at 40-41, 83 S.Ct. at 1633-34, 10 L.Ed.2d at 742. Also, in Schmerber v. California, 384 U.S. 757, 769-71, 86 S.Ct. 1826, 1835-36, 16 L.Ed.2d 908, 918-20 (1966), the warrantless search of giving the arrestee a blood test was upheld because the diminishing of the blood's alcohol content during the time needed to obtain a warrant threatened destruction of the evidence and the officer had probable cause to believe petitioner was intoxicated.

   Where a warrantless search is based upon the destruction or removal of evidence the surrounding circumstances must present a specific threat to known evidence.  For example, in Thomas v. Parett, the police knew that narcotics were on the premises and that several people were [*214] present.  524 F.2d 779, 782 (8th Cir.1975). The police could not risk arresting people as they left separately.  See also United States v. Rubin, 474 F.2d 262, 268 (3d Cir.), cert. denied, 414 U.S. 833, 94 S.Ct. 173, 38 L.Ed.2d 68 (1973); State v. Patterson, 192 Neb. 308, 220 N.W.2d 235 (1974) (many people and heroin[***15] easily disposable).  To justify the warrantless search the officers must reasonably believe that a strong likelihood exists that the removal or destruction of the evidence is imminent. United States v. Johnson, 561 F.2d 832, 850 (D.C.Cir.), cert. denied, 432 U.S. 907, 97 S.Ct. 2953, 53 L.Ed.2d 1080 (1977); see also Henson v. State, 236 Md. 518, 523, 204 A.2d 516, 519 (1964) (easy destruction of narcotics is exigency justifying unannounced surprise entry to execute search warrant).  Several cases suggest that the requirement is that the destruction or removal be in progress.  See Ludlow v. State, 262 Ind. 266, 314 N.E.2d 750 (1974) (presence of fugitives in house and sound of running steps not sufficient); Commonwealth v. Hall, 366 Mass. 790, 323 N.E.2d 319 (1975) (tighter requirement suggested by Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970)); see, e.g., United States v. Guidry, 534 F.2d 1220, 1223 (6th Cir.1976) (evidence of counterfeiting in process of destruction); contra United States v. Wilcox, 357 F.Supp. 514 (E.D.Pa.1973) (destruction in progress is too narrow a reading of Supreme Court cases; belief of threatened destruction [***16] required; presence of other persons on premises not justify such belief); United States v. Rubin, 474 F.2d 262, 266 (3d Cir.), cert. denied, 414 U.S. 833, 94 S.Ct. 173, 38 L.Ed.2d 68 (1973); United States v. Blake, 484 F.2d 50, 55 (8th Cir.1973), cert. denied, 417 U.S. 949, 94 S.Ct. 3076, 41 L.Ed.2d 669 (1974).

   We need not resolve whether this exception requires that the destruction of the evidence be in progress, because the meaning of "exigency" will be sufficient to decide this case.  In Chimel, the Supreme Court required a showing that the exigencies of the situation made the policemen's course of conduct imperative.  395 U.S. at 761, 89 S.Ct. at 2039, 23 L.Ed.2d at 693 (emphasis added) (quoting McDonald [*215] v. United States, 335 U.S. at 456, 69 S.Ct. at 193, 93 L.Ed. at 158). Further, the Court noted that searching without a warrant is always considered a strictly limited right that grows only out of the inherent necessity of the situation at the time of the arrest. 395 U.S. at 759, 89 S.Ct. at 2038, 23 L.Ed.2d at 691 (quoting Trupiano v. United States, 334 U.S. at 705, 708, 68 S.Ct. at 1234, 92 L.Ed. at 1667, 1671). In Mincey v. [***17] Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), the Supreme Court noted that a warrant was required to search a home unless the exigencies were compelling.  437 U.S. at 394, [**340] 98 S.Ct. at 2414, 57 L.Ed.2d at 301 (emphasis added).  Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), has been cited as finding an exigency where the destruction of evidence is imminent. Mincey v. Arizona, 437 U.S. at 394, 98 S.Ct. at 2414, 57 L.Ed.2d at 301 (emphasis added).  See also United States v. Williams, 604 F.2d 1102, 1122-23 (8th Cir.1979), citing Ker v. California, 374 U.S. 23, 40-41, 83 S.Ct. 1623, 1633-1634, 10 L.Ed.2d 726, 742 (1963); United States v. Blake, 484 F.2d 50, 54 (8th Cir.1973), cert. denied, 417 U.S. 949, 94 S.Ct. 3076, 41 L.Ed.2d 669 (1974); United States v. Rubin, 474 F.2d 262 (3d Cir.), cert. denied, 414 U.S. 833, 94 S.Ct. 173, 38 L.Ed.2d 68 (1973). In Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970), the Supreme Court invalidated a warrantless search and noted it was not an exigency within the four recognized exceptions.  The officer was not responding to an emergency[***18] (citing United States v. Jeffers, 342 U.S. 48, 52, 72 S.Ct. 93, 95, 96 L.Ed. 59, 64 (1951)), he was not in hot pursuit (citing Warden v. Hayden, 387 U.S. 294, 298-99, 87 S.Ct. 1642, 1645-46, 18 L.Ed.2d 782, 787 (1967)), the goods were not in the process of destruction (citing Schmerber v. California, 384 U.S. 757, 770-71, 86 S.Ct. 1826, 1835-36, 16 L.Ed.2d 908, 919 (1966)), and the goods were not about to be removed from the jurisdiction (citing Johnson v. United States, 333 U.S. 10, 15, 68 S.Ct. 367, 369, 92 L.Ed. 436, 441 (1948); and United States v. Jeffers, supra) 399 U.S. at 35, 90 S.Ct. at 1972, 26 L.Ed.2d at 414. The Supreme Court thus has indicated that the exception for exigent circumstances [*216]is to be construed narrowly.  See United States v. Rubin, 474 F.2d at 268, citing Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). In the situation where the destruction or removal of evidence is urged as justifying a warrantless search, it must be a situation where there was an immediate, urgent, and compelling need for the police action. See United States v. Rubin, 474 F.2d at 266 (high standards of exigency necessary[***19] to justify warrantless search).

   The remaining question is whether the presence of third persons who could destroy or remove evidence is viewed as an exigency justifying a warrantless search or seizure. In United States v. Blake, a third person on the premises when the police entered tried to conceal evidence by throwing it down the laundry chute.  484 F.2d at 53. The officer went into the basement without a warrant to recover the evidence.  Id. The Court upheld the search recognizing that there were no grounds to arrest the defendant at that point and his repeated actions to throw the evidence (a purse) away indicated that destruction or removal of the evidence was highly likely.  Id. at 55-56. The Court's test was whether the destruction or removal of the evidence was imminent, determined from the totality of the factual circumstances, and not merely "possible." Id. at 56 (emphasis by the Court).  The Court considered the following factors: (1) the importance of time; (2) that the officer knew that the particular person had attempted to conceal the evidence; and (3) that that person was on the premises and not under arrest. Id. n1

n1 In United States v. Rubin, the Court listed five factors to consider: "(1) the degree of urgency involved and the amount of time necessary to obtain a warrant; (2) reasonable belief that the contraband is about to be removed; (3) the possibility of danger to police officers guarding the site of the contraband while a search warrant is sought; (4) information indicating the possessors of contraband are aware that the police are on their trail; and (5) the ready destructibility of the contraband and the knowledge 'that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic.'" (Citations omitted).  474 F.2d at 268-69.

[***20]

   [*217] In Chimel v. California, Justice White argued in dissent that the presence of the arrestee's wife justified the warrantless search because of the delay of returning with a warrant.  "[I]t seems very likely that petitioner's wife, who in view of petitioner's generally garrulous nature must have known of the robbery, would have removed the [stolen] coins." 395 U.S. at 775, [**341] 89 S.Ct. at 2046-47, 23 L.Ed.2d at 701. This argument did not persuade the majority.  The argument was again urged in Justice Black's dissent in Vale v. Louisiana, where petitioner's mother and brother had just arrived at the house.  399 U.S. at 37-38, 90 S.Ct. at 1973-74, 26 L.Ed.2d at 415-16. Again, the argument was not accepted by the majority.  Therefore, mere presence of third persons is not an exigency that will justify a warrantless search of the home.  The police action must be justified by an immediate and compelling need and not by an inference about a future possibility.

   Finally we emphasize that the burden of establishing exigent circumstances is on the State, Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564, 576 (1971); United [***21]  States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59, 64 (1951); McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153, 158 (1948), and that the facts and circumstances upon which the question of reasonableness depends must be viewed in the light of established fourth amendment principles.  Chimel, 395 U.S. at 765, 89 S.Ct. at 2041, 23 L.Ed.2d at 695.

   III

   We now turn to the question of whether the search and seizure of the shotgun barrel in this case, without a warrant, violated the fourth amendment.  As we have noted, two rationales exist to justify a warrantless search or seizure incident to arrest.

   First is the question of whether the search is justified under Chimel as within the area of appellant's reach or grasp.  We hold that it was not. Appellant was out [*218] of the attic and handcuffed; therefore, it cannot be argued that, from the floor below, the area of the attic was within his grasp. n2 This situation is unlike Foster v. State, 297 Md. 191, 464 A.2d 986 (1983), where the arrestee was next to a partially open drawer of a nighttable. The Foster situation was mentioned specifically by the Supreme Court[***22] in Chimel and clearly falls within the exigency rationale of Chimel.  395 U.S. at 763, 89 S.Ct. at 2040, 23 L.Ed.2d at 694. To approve of the search in the instant case we would have to approve a search of the entire attic as within appellant's grasp while he was on the floor below.  In Chimel, the Court noted that "[t]here is no . . . justification . . . for routinely searching any room other than that in which an arrest occurs -- or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself." 395 U.S. at 763, 89 S.Ct. at 2040, 23 L.Ed.2d at 694. Here, the police did not limit their search to the area surrounding the attic hatchway.  Although the evidence is unclear, the officer apparently searched far into the attic because he recovered the evidence very close to where appellant had been lying. The fact that the officer had to use his flashlight to see appellant and that appellant had to crawl back to the hatchway suggest he was well into the attic. Further, the State does not argue against this conclusion except on the basis of New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). But [***23]as we discussed above, Belton should not be read so expansively.

 n2 Under "'the "wingspan" limitation of Chimel, . . . a search incident is limited to that area within the lunge, within the reach, within the grasp of the arrestee -- the area "which may fairly be deemed to be an extension of his person" -- the area within which the arrestee might grab for weapons or destroy evidence.'" Bouldin v. State, 276 Md. 511, 518, 350 A.2d 130, 134 (1976) (quoting Dixon v. State, 23 Md.App. 19, 27, 327 A.2d 516, 521 (1974)).

   Next, we move to the question of whether the circumstances in the instant case constitute exigent circumstances that justified a warrantless search. The State contends that the presence of appellant's sister who was free to reenter [*219]the house presented an exigency because she could have destroyed or removed the evidence.  Such exigency is urged because she lied to the police on two occasions.  First, she corroborated appellant's misidentification of himself, and [**342] [***24] later she told police that she was alone in the house.

   The law is settled that the mere presence of third persons does not create exigent circumstances that justified a warrantless search. The argument was rejected in both Chimel v. California, supra, and Vale v. Louisiana, supra, where it was urged in dissent.  Such a rule would eliminate the fourth amendment protection for all occupants of a home whenever an arrestee lived in a home with family or others.  The State contends that the exception is limited because the police would be required to have probable cause, but the fourth amendment interposes a magistrate between citizens and police.  A warrantless search cannot be justified by probable cause, because that is the very determination for which the constitution requires a warrant hearing.  In the instant case the police apparently searched the attic because they believed there might be evidence of the crimes concealed where appellant was hiding.  However, "[b]elief, however well founded, that an article sought is concealed in a dwelling house furnishes no justification for a search of that place without a warrant.  And such searches are held unlawful notwithstanding[***25] facts unquestionably showing probable cause." Chimel, 395 U.S. at 762, 89 S.Ct. at 2039, 23 L.Ed.2d at 693, quoting Agnello v. United States, 269 U.S. at 33, 46 S.Ct. at 6, 70 L.Ed. at 149, quoted with approval in Everhart v. State, 274 Md. 459, 475, 337 A.2d 100, 109 (1975).

   Because the mere presence of the sister cannot justify a search, this case hinges on the fact that she lied to the police.  We do not believe that this fact presented an exigency that threatened destruction or removal of evidence. This fact does not rise to the level of the facts in United States v. Blake, where the police observed the third person twice attempt to dispose of evidence. 484 F.2d at 53. The meaning of exigent circumstances is that the police are [*220]confronted with an emergency -- circumstances so imminent that they present an urgent and compelling need for police action. The circumstances present in this case do not rise to that level.  Through her lies the sister sought to prevent the arrest of her brother.  No evidence suggests physical resistance, or failure to follow police orders, or even knowledge of the robbery or evidence thereof.  In fact, neither lie affected[***26] the policemen's actions in any way or even caused them to hesitate.  At most, the police suspected that there was a possibility that she may later attempt to destroy or conceal evidence.  The police, therefore, were not presented with imminent circumstances at the time of the arrest.

   Moreover, the State's failure to prove exigent circumstances were present in this case is determinative.  The burden is on those seeking the exemption to show the need for it.  Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564, 576 (1971); United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59, 64 (1951); McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153, 158 (1948). Further, in determining the lawfulness of the search we may concern ourselves only with what the police officers believed at the time.  Ker v. California, 374 U.S. at 40 n. 12, 83 S.Ct. at 1633 n. 12, 10 L.Ed.2d at 742 n. 12; Johnson v. United States, 333 U.S. 10, 17, 68 S.Ct. 367, 370, 92 L.Ed. 436, 442. n3

n3 "'A search is not to be made legal by what it turns up.  In law it is good or bad when it starts and does not change character from' what is dug up subsequently." Ker v. California, 374 U.S. at 40 n. 12, 83 S.Ct. at 1633-34 n. 12, 10 L.Ed.2d at 742 n. 12 (emphasis added by Court) (quoting United States v. Di Re, 332 U.S. 581, 595, 68 S.Ct. 222, 229, 92 L.Ed. 210, 220 (1948)).

[***27]

   The State did not show that at the time of the search in the instant case the officers believed that the sister presented a threat of the destruction of evidence.  In fact, the evidence suggests to the contrary.  Officer Thomas's testimony makes no mention of the sister at that point.  He simply stated [**343]that after they had the appellant out of the attic, he then went back up into the attic to search.  The [*221] sister was outside at the time with other police officers and there is no showing that Officer Thomas gave any consideration to her at all.  The officer appears to have acted on the belief that some evidence of the crime might be found where appellant had been hiding. Such a belief, no matter how strong or correct, cannot justify a warrantless search.

   Further, the police could not have believed that evidence was likely to be destroyed or removed because at that point in time they did not know that there was any evidence.  For instance, in narcotic cases where warrantless search and seizures have been upheld because of the presence of third persons, the police knew that narcotics were present on the premises and the other persons were likely to destroy the[***28] easily destroyed contraband. Thomas v. Parett, 524 F.2d 779 (8th Cir.1975); United States v. Rubin, 474 F.2d 262 (3d Cir.), cert. denied, 414 U.S. 833, 94 S.Ct. 173, 38 L.Ed.2d 68 (1973); Henson v. State, 236 Md. 518, 204 A.2d 516 (1964); State v. Patterson, 192 Neb. 308, 220 N.W.2d 235 (1974). Here, the police had no knowledge that any evidence was in the house.  The officer did not know he was looking for a gun.  He simply was looking for evidence of the offense whether it was a gun barrel, some money, or a wallet.  The police could not have believed at the time of the arrest that evidence was threatened because they did not know at that time that there was any evidence.  An argument that the police were presented with exigent circumstances at the time of the arrest, no matter how persuasive on appeal, is irrelevant if the State did not meet its burden in establishing that belief at trial.

   Therefore, considering the facts and circumstances surrounding this case in light of established fourth amendment principles, Chimel v. California, 395 U.S. at 765, 89 S.Ct. at 2041, 23 L.Ed.2d at 695, we hold that exigent circumstances did not justify a search of the[***29] attic and seizure of the gun barrel. The search and seizure violated the fourth amendment; hence, admission of the gun barrel into evidence was error.  Furthermore, we cannot say, beyond a reasonable [*222] doubt, that this error was not prejudicial.  Dorsey v. State, 276 Md. 638, 659, 350 A.2d 665, 678 (1976).

   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 REMAND TO THAT COURT FOR A NEW TRIAL.

   COSTS TO BE PAID BY ANNE ARUNDEL COUNTY.

DISSENTBY: SMITH

DISSENT: SMITH, Judge, dissenting.

   The majority recognizes that exigent circumstances may permit a warrantless search and seizure. I believe the police were faced with exigent circumstances in this case.  It will be remembered, as the majority opinion indicates, that Stackhouse had been identified from a photograph as the perpetrator of the crime.  A tracking dog had followed his trail from the scene of the crime to his place of residence.  Stackhouse answered the door to the police at that residence.  He falsely identified himself to the police as James Lewis.  His foster sister confirmed this identification. [***30] The police learned that James Lewis was Stackhouse's alias and that arrest warrants were outstanding for Stackhouse pertaining to unrelated armed robberies at the same Holiday Inn. They then returned to the residence to serve the warrants.  At that time the foster sister denied that Stackhouse was present.  In fact he was hiding in the attic. I submit that if the foster sister would lie about his identity and then lie about his presence, it was reasonable on the part of the police officers to believe that she would destroy or secrete elsewhere any evidence pertaining to the crime which might be on the premises.

   [**344] 2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 6.5(b), at 438 (1978), states, "Notwithstanding the claim in Vale [v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970),] that exceptions to the warrant [*223] requirement are 'specifically established and well-delineated,' it is closer to the truth to say that the 'emergency circumstances exception is "established," but it has not been "well delineated,"'" citing United States v. Rubin, 474 F.2d 262 (3d Cir.), cert. denied, 414 U.S. 833, 94 S.Ct. 173, [***31] 38 L.Ed.2d 68 (1973). Professor LaFave had earlier commented, "[I]t is suggested . . . that the Vale formulation does not encompass all truly exigent circumstances because it does not speak of threatened destruction of evidence . . . ." Id. at 437.  He goes on to comment:

   "Generally, it may be said that the lower courts have not accepted the Vale formulation as controlling.  They have been inclined to state the exception in broader terms, such as a 'great likelihood that the evidence will be destroyed or removed before a warrant can be obtained,' that the evidence is 'threatened with imminent removal or destruction,' or that the police 'reasonably conclude that the evidence will be destroyed or removed before they can secure a search warrant.' The most careful treatment of this point appears in United States v. Rubin, where the court, after noting the broader dictum in Johnson [v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948)], McDonald [v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948)], and [United States v.] Jeffers, [342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951),] concluded that the Vale language[***32] should not be taken too seriously in light of the Court's assumption that not even a threat of destruction was present." Id. at 438-39.

   In Rubin the court said, after referring to Vale:
 
"Although the Court had always spoken of 'threatened' destruction or removal of evidence in previous cases involving the emergency exception, in Vale, 399 U.S. at 35, 90 S.Ct. 1969 [at 1972, 26 L.Ed.2d 409], it spoke for the first time of goods 'in the process of destruction.' Although the language might suggest that the emergency exception must be construed to require knowledge that the evidence is actually being removed or destroyed, the omission of a single word should not be given such significance, [*224] especially in light of the facts in Vale . . . .  The facts did not support a belief by the arresting officers that there was even a 'threatened' destruction or removal of the narcotics. No exigent circumstances justifying the search existed." 474 F.2d at 267.

   After that which I have previously quoted from his work, LaFave goes on to state:
 
"The court in Rubin then formulates this test:

   When Government agents, however, have probable cause[***33] to believe contraband is present and, in addition, based on the surrounding circumstances of the information at hand, they reasonably conclude that the evidence will be destroyed or removed before they can secure a search warrant, a warrantless search is justified.  The emergency circumstances will vary from case to case, and the inherent necessities of the situation at the time must be scrutinized. Circumstances which have seemed relevant to courts include (1) the degree of urgency involved and the amount of time necessary to obtain a warrant * * *; (2) reasonable belief that the contraband is about to be removed * * *; (3) the possibility of danger to police officers guarding the site of the contraband while a search warrant is sought * * *; (4) information indicating the possessors of the contraband are aware that the police are on their trail * * *; and (5) the ready destructibility of the contraband and the knowledge 'that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic.' [474 F.2d at 268-69]

   "It is useful to take note of the facts which the court in Rubin found were [**345]sufficient to meet[***34] this test, for they serve as a meaningful vehicle for exploring several aspects of the emergency exception. Customs agents received reliable information that a bronze statue containing a large shipment of illicit drugs would be shipped to a hospital in a certain area.  Agents were posted at the airport and waterfront, and finally a crate answering the general description given by the informant arrived at the [*225]airport from abroad.  It was inspected and found to contain narcotics. Agents observed one Agnes pick up the crate and take it to a certain address, where it was unloaded at about 5 p.m. After one agent was dispatched to secure a search warrant, Agnes left the premises in his car but without the crate.  He was tailed for a short distance, but when his evasive actions led agents to believe he was aware of the tail, they arrested him.  When he was placed under arrest about six blocks from the house in question, he yelled to spectators to call his brother.  At this point the agents, fearing disposal of the narcotics if they waited for the search warrant, entered the house and searched for and seized the narcotics." Id. at 439-40.

   The Third Circuit pointed out[***35] in Rubin, "The Supreme Court has never spoken in a case such as this one where the searching officers know there is in fact a large quantity of contraband narcotics in a dwelling, and they are apprehensive that it may be removed or destroyed." 474 F.2d at 268. In this case the searching officers did not know that incriminating evidence was present but there certainly was probable cause for such a belief.  It thus is significant that in Rubin the court said, "We find no requirement that officers must know of the removal or destruction in order to make the search." Id.

   The suggestion may be made that the police officers here could have detained the foster sister and impounded, so to speak, the premises while they sought a search warrant. Before Vale, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 was decided, no less an authority than Erwin N. Griswold, then Solicitor General of the United States, said in Criminal Procedure, 1969 -- Is It A Means Or An End?, 29 Md.L.Rev. 307, 317 (1969):
 
"Does the police officer have any power to maintain the status quo while he, or a colleague of his, is taking the time necessary to draw up a sufficient affidavit to support[***36] an application for a search warrant, and then finding a magistrate, submitting the application to him, obtaining [*226] the search warrant if it is issued, and then bringing it to the place where the arrest was made.  It seems inevitable that a minimum of several hours will be required for this process, at the very best.  Unless there is some kind of a power to prevent removal of material from the premises, or destruction of material during this time, the search warrant will almost inevitably be fruitless . . . .  May they guard the premises, and prevent egress and entry, and action within the premises, while the search warrant is being obtained?  We do not know."
 
Some courts have found impoundment to be impermissible.  See, e.g., Haynes v. State, 269 Ark. 506, 511, 602 S.W.2d 599 (1980); State v. Dorson, 62 Haw. 377, 615 P.2d 740 (1980).

   The determination of whether exigent circumstances exist because the evidence is threatened with destruction or removal must be made in light of the particular facts of the case.  An important issue is whether the police acted reasonably in conducting an immediate, warrantless search rather than waiting to obtain a search warrant. [***37] See United States v. McEachin, 670 F.2d 1139, 1145 (D.C.Cir.1981); United States v. Hendrix, 595 F.2d 883, 885-86 (D.C.Cir.1979); State v. Huff, 220 Kan. 162, 166-67, 551 P.2d 880 (1976); State v. Bradley, 264 N.W.2d 387, 388 (Minn.1978).

   Decisions which have upheld warrantless searches on the basis of exigent circumstances in addition to Rubin, 474 F.2d 262, include McEachin; Hendrix; Durham v. United States, 237 A.2d 830 (D.C.1968); Huff; Bradley; and People v. Clements, 37 N.Y.2d 675, [**346] 339 N.E.2d 170, 376 N.Y.S.2d 480 (1975). I find significant what the New York Court of Appeals said in Clements.  There an informant purchased marijuana on the premises and then left.  He told officers the precise location of the marijuana supply (a certain dresser drawer).  The police entered, arrested the two occupants, and then searched the drawer without a warrant.  In upholding the search, the court said:

   "It is suggested that rather than proceeding immediately to take possession of the concealed contraband, the police should have maintained a surveillance of defendants' [*227] apartment for such period of time as would have been required[***38] to obtain a search warrant. The adoption of any such proposal, we suggest, as a practical matter, would necessarily have exposed these defendants to a much more objectionable intrusion than did the seizure here.

   "While such an alternative might be verbalized as only a 'surveillance', on reflection one must be convinced that for the police merely to have manned an outside observation post would have been wholly inadequate to protect this contraband. As a practical matter the police would have had to take possession of defendants' apartment, including surely all means of ingress and egress.  Any person entering or leaving the apartment would have had to have been at least stopped and probably then restrained.  Control of the areas adjoining the dresser would have had to have been assured.  In sum this proposal would have entailed a much greater intrusion in both space and time than that to which defendants were actually subjected.

   "Nor, more notably, would defendants in such event have had the protection of an interposed appraisal of probable cause for the more extensive intrusion by any neutral or detached Magistrate.  Time and circumstance would no more have permitted postponement[***39] of police action to allow for presentation to a Magistrate for this purpose than for issuance of a search warrant.

   "Confronted, as we think the officers here were, with the necessity to take some police action without delay, we cannot conclude that the action they chose to take must be struck down as unlawful.  Faced with alternatives, as to none of which could there have been any preliminary independent judicial scrutiny, we cannot think that a fair or sensible balancing of the competing private and public interests demands that the greater intrusion be preferred over the lesser.  (Cf. People v. Kreichman, 37 N.Y.2d 693 [376 N.Y.S.2d 497, 339 N.E.2d 182]; People v. Perel, 34 N.Y.2d 462, 467 [358 N.Y.S.2d 383, 315 N.E.2d 452]; United States v. Evans, [9 Cir.], 481 F.2d 990.)

   [*228] "We hold that there was no infringement of the constitutional rights of these defendants.  Other courts confronting similar factual situations have denied suppression.  (E.g., United States v. Pino [2 Cir.], 431 F.2d 1043, cert. den. 402 U.S. 989 [91 S.Ct. 1675, 29 L.Ed.2d 154]; United States v. Lozaw, [2 Cir.], 427 F.2d 911; State v. Wiley, 522 S.W.2d 281 [Mo].) [***40] They have not held themselves bound by the unreasonably simplistic concept of 'grabbable reach' attributed to Chimel [v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969)]. (See People v. Perel, supra, [34 N.Y.2d] p. 467 [358 N.Y.S.2d 383, 315 N.E.2d 452].)" 37 N.Y.2d at 680-82, 339 N.E.2d 170, 376 N.Y.S.2d 480.
 
   I see no way for the officers here to have preserved the status quo pending the procurement of a search warrant short of an illegal intrusion caused either by taking the foster sister into custody, or impounding the premises, or both. Given the fact that the foster sister had lied to the police as to the identity of the accused and that she again lied when the police returned by asserting that he was not on the premises when in fact he was, it seems to me probable that she would destroy or secrete elsewhere any evidence that might be on the premises once the accused had been taken [**347] into custody and thereby removed from the area.

   It will be recalled that Rubin, 474 F.2d 262, referred to five circumstances which have seemed relevant to courts in scrutinizing warrantless searches under exigent circumstances: (1) the degree of[***41] urgency involved and the amount of time necessary to obtain a warrant; (2) reasonable belief that the contraband is about to be removed; (3) the possibility of danger to police officers guarding the site of the contraband while a search warrant is sought; (4) information indicating that the possessors of the contraband are aware that the police are on their trail; and (5) the ready destructability of the contraband and the knowledge that "efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic." Obviously, the latter part of (5) has no bearing here.  The [*229] first part of (5) is relevant because although the gun in question could not have been destroyed, it certainly could have been secreted elsewhere.  Stackhouse and his sister were well aware that the police were on his trail because he had been taken into custody.  There would have been no possibility of danger to police officers guarding the site of the contraband while a search warrant was sought, but maintaining the status quo would have required an obvious intrusion. The presence of the sister who had lied certainly makes reasonable a belief that the evidence[***42] would have been removed.  Given the time required to obtain a search warrant, removal would have been facilitated were there no intrusion by seizing the foster sister and the premises.

   I think the realities and the practicalities of the situation here called for the action that was taken by the police officers. They had probable cause to believe evidence linking Stackhouse with the crime in question was on the premises.  They reasonably could conclude that the evidence would be destroyed or removed before they could secure a search warrant. Thus, under these circumstances there was no infringement upon the constitutional rights of Stackhouse.  There is no Supreme Court case holding on facts such as these that the search was improper.  There are opinions by respected courts holding that such action was proper.  Hence, I would affirm. 

GORDON HATT v. MARK ANDERSON et al. 
No. 19, September Term, 1983
 
Court of Appeals of Maryland
 
297 Md. 42; 464 A.2d 1076; 1983 Md. LEXIS 290

 September  12, 1983, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Lerner, J., pursuant to certiorari to the Court of Special Appeals.

DISPOSITION: Decree vacated; case remanded to the Circuit Court for Anne Arundel County with directions to dismiss the bill of complaint for lack of a justiciable issue; costs to be paid by appellant.

CORE TERMS:  regulation, firefighter, declaratory relief, justiciable issue, declaratory judgment action, justiciable controversy, declaratory judgment, fire department, free speech, justiciable, discipline, whispered, Fourteenth Amendments, actual controversy, bargaining agent, summary judgment, legal relation, family member, antagonistic, forbidden, demanded, accrued, declaration, speculative, criticize, personnel, overbroad, imminent, narrowly, privacy

COUNSEL: Andrew H. Kahn, with whom were Zukerberg & Kahn on the brief, for appellant.

   Douglas Clark Hollmann, Assistant County Solicitor, with whom was Steven P. Resnick, County Solicitor, on the brief, for appellees.

JUDGES: Murphy, C. J., and Smith, Eldridge, Cole, Davidson, Rodowsky and Couch, JJ.  Murphy, C. J., delivered[***3] the opinion of the Court.

OPINIONBY: MURPHY

OPINION: [*43] [**1077] Gordon Hatt, a firefighter in the Anne Arundel County Fire Department, and President of the County Firefighters Association, filed a bill of complaint against Harry Klasmeier, the County's "Fire Administrator," seeking declaratory relief under the Uniform Declaratory Judgments Act (the Act), Maryland Code (1980), § 3-403, et seq., of the Courts and Judicial Proceedings Article.  Hatt sought a declaration that the County Fire Department's Regulation 2.6 was void and of no force or effect. n1 The bill recited that Klasmeier was charged under the County Charter with administering the Fire Department and enforcing its rules and regulations; that as a firefighter Hatt is required to conform his conduct to the requirements of the regulation; that his failure to do so will result in disciplinary action; that the regulation is "overbroad" and violates the First and Fourteenth Amendments to the United States Constitution [*44] "in that it prohibits without limitation any and all public and private speech which is critical of superior officers"; and that Hatt's rights "are being presently impaired by the prior restraints[***4] upon [his] speech . . . imposed by the subject Regulation." Klasmeier's answer asserted that the regulation was not unconstitutional.

n1 The regulation states:

   "Criticism of superior officers, discourtesies to the public or to other personnel of the fire department, unjust treatment of officers or personnel and movements tending to create dissension or appearing to ignore responsible officials will be considered breaches of discipline."

   Each party moved for summary judgment on the pleadings.  The Circuit Court for Anne Arundel County (Lerner, J.), after hearing argument of counsel on the summary judgment motions, granted the County's motion and denied Hatt's.  In its decree, the court declared that Regulation 2.6 "was not overly broad, did not violate the United States Constitution and therefore was a valid, enforceable regulation." Hatt appealed.  We granted certiorari prior to consideration of the appeal by the intermediate appellate court.

   On appeal, the parties filed an agreed statement of facts[***5] which recites only that Hatt, as a county firefighter, is subject to the Department's regulations; that he sought a declaration that Regulation 2.6 was "unconstitutionally overbroad and impermissibly impinged upon his freedom of speech in violation of the First and Fourteenth Amendments to the United States Constitution"; that the circuit court ruled that the regulation was not overbroad; and that judgment was thereafter entered and the appeal taken.

   [**1078] Before us Hatt argues that to pass judicial scrutiny the regulation "must be narrowly directed toward achieving the legitimate state interest of preventing actual interference with the efficient operation of the governmental body." He contends that regulations similar to Regulation 2.6 have been declared unconstitutional by some courts; that Regulation 2.6 is a "wholesale gag order," without any limitation on the discretion of the Fire Administrator to enforce the regulation; that the regulation is not limited to cases where the discipline or operation of the Department is jeopardized; that the prohibition of "criticism of superior officers" is not limited by time, place or manner; and that as bargaining agent for the professional[***6] firefighters' association Hatt's [*45] duties demand that he criticize superior officers whenever they violate the labor agreement which governs the working conditions of firefighters. Hatt says that the regulation subjects him to discipline; he suggests that a complaint regarding a firefighter's superior officer whispered to a family member in the privacy of the firefighter's home, if repeated, would place the firefighter's career in jeopardy.

   Klasmeier points out that Hatt "cites no situation where this regulation has chilled his rights as a firefighter or as a union representative, even as to complaints regarding one's superiors whispered to members of a firefighter's family." Klasmeier contends that no such restriction of the free speech rights of firefighters has occurred, nor has any one been disciplined for positions taken at the bargaining table, or for complaints whispered to a family member in the privacy of the firefighter's home.

   With one exception not here pertinent, the Act provides, in § 3-409 (a) of the Courts Article, that a court may grant a declaratory judgment in a civil case
 
"if it will serve to terminate the uncertainty or controversy giving rise [***7]to the proceeding, and if:

   (1) An actual controversy exists between contending parties;

   (2) Antagonistic claims are present between the parties involved which indicate imminent and inevitable litigation; or

   (3) A party asserts a legal relation, status, right, or privilege and this is challenged or denied by an adversary party, who also has or asserts a concrete interest in it."

   It is thus clear that the existence of a justiciable controversy is an absolute prerequisite to the maintenance of a declaratory judgment action. Kronovet v. Lipchin, 288 Md. 30, 415 A.2d 1096 (1980); Reyes v. Prince George's County, 281 Md. 279, 380 A.2d 12 (1977); Hamilton v. McAuliffe, 277 Md. 336, 353 A.2d 634 (1976). As we noted in Reyes, a controversy is justiciable when there are interested [*46] parties asserting adverse claims upon a state of facts which must have accrued wherein a legal decision is sought or demanded. 281 Md. at 288. Accord: Harford County v. Schultz, 280 Md. 77, 371 A.2d 428 (1977); Pr. George's Co. v. Bd. of Trustees, 269 Md. 9, 304 A.2d 228 (1973); Patuxent Co. v. Commissioners, 212 Md. 543, 129 A.2d 847 (1957). To be justiciable the issue [***8]must present more than a mere difference of opinion, Kirkwood v. Provident Savings Bank, 205 Md. 48, 106 A.2d 103 (1954), and there must be more than a mere prayer for declaratory relief, Master v. Master, 223 Md. 618, 166 A.2d 251 (1960). Indeed, the addressing of non-justiciable issues would place courts in the position of rendering purely advisory opinions, a long forbidden practice in this State.  See, e.g., Planning Commission v. Randall, 209 Md. 18, 120 A.2d 195 (1956); Tanner v. McKeldin, 202 Md. 569, 97 A.2d 449 (1953); Hammond v. Lancaster, 194 Md. 462, 71 A.2d 474, cert. denied, 339 U.S. 908 (1950). That a justiciable issue is a prerequisite to a declaratory judgment action is an especially important principle in cases seeking to adjudicate constitutional [**1079] rights; in such instances we ordinarily require concrete and specific issues to be raised in actual cases, rather than as theoretical or abstract propositions.  See, e.g., Salisbury Beauty Schools v. St. Bd., 268 Md. 32, 300 A.2d 367 (1973); Thomas v. Solis, 263 Md. 536, 283 A.2d 777 (1971); Liberto v. State's Attorney, 223 Md. 356, 164 A.2d 719 (1960); Givner v. Cohen[***9] , 208 Md. 23, 116 A.2d 357 (1955).

    It may well be that, within the contemplation of the Act, there does exist between Hatt and Klasmeier an "actual controversy"; "antagonistic claims" indicating "imminent and inevitable litigation"; or the assertion and denial of "a legal relation, status, right, or privilege." The difficulty confronting us, however, is that if any of these grounds for granting declaratory relief do exist, they are neither disclosed nor apparent from the record before us.  See Pr. George's Co. v. Bd. of Trustees, supra, 269 Md. at 13. The short of it is that nothing appears in the pleadings even remotely suggesting that an actual dispute exists between [*47] the parties beyond that which might be implied by the mere facial existence of the regulation; and this alone is plainly insufficient to present a justiciable controversy. See Hitchcock v. Kloman, 196 Md. 351, 356, 76 A.2d 582 (1950). There is no allegation that the regulation has been, or is threatened to be interpreted or applied by Klasmeier in any particular way.  Nor does Hatt assert that any of his claimed free speech rights are actually being disputed, challenged or contested by the Fire Administrator. [***10] There is no indication that Hatt has been ordered to do, or not do, anything under the regulation, either in his individual capacity as a firefighter, or as president of the county firefighters' association. n2 At most, Hatt speculates as to what might happen under the regulation if he criticizes his superior officers.  Indeed, for all that appears on the record in this case, the Fire Administrator may interpret and apply the regulation narrowly in accordance with Hatt's own constitutional views.  It is thus evident that the allegations of Hatt's bill of complaint are simply too theoretical, too abstract and too speculative to form the basis for an action for declaratory relief under the Act.

n2 The bill of complaint does not allege that the regulation violates any of Hatt's rights vis-a-vis his status as the bargaining agent for the firefighters' association.

   Since no justiciable issue has been presented in this case, the trial court could not properly declare the constitutionality of the regulation. We shall, [***11]therefore, vacate the declaratory decree and remand the case to the trial court to dismiss the bill of complaint.

   Decree vacated; case remanded to the Circuit Court for Anne Arundel County with directions to dismiss the bill of complaint for lack of a justiciable issue; costs to be paid by appellant. 

AETNA CASUALTY & SURETY COMPANY v. BARRY A. KUHL et al. 
No. 61, September Term, 1982
 
Court of Appeals of Maryland
 
296 Md. 446; 463 A.2d 822; 1983 Md. LEXIS 262

 August  11, 1983, Decided

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals.  Circuit Court for  Anne Arundel  County, Thieme, J.

DISPOSITION: Judgment of the Court of Special Appeals affirmed.  Aetna Casualty and Surety Company to pay the costs.

CORE TERMS:  declaration, hearsay, admissible, declarant, hearsay rule, occurrence, business records exception, speaker, state of mind, written statement, proprietary, unavailable, pecuniary, self-serving, duty, declaratory judgment action, declaratory judgment, assault and battery, motive to lie, predecessor, co-defendant, eastbound, truthful, admissible to prove, police officer, civil action, party-opponent, convicted, shoulder, insurance policies

COUNSEL: Thomas E. Lynch, III, with whom were James R. Eyler and Miles & Stockbridge on the brief, for appellant.

   Daniel M. Clements, with whom were Samuel O. Jackson, Jr. and Israelson & Jackson, P.A. on the brief, for appellees.

JUDGES: Murphy, C. J., and Smith, Eldridge, Cole, Davidson, Rodowsky and Couch, JJ.  Cole, J., delivered the opinion of the Court.

OPINIONBY: COLE

OPINION: [***4]

   [*448] [**823] The questions presented in this case are whether a conviction for assault and battery is admissible in a subsequent civil action to assert the facts arising out of the same incident and whether a signed written statement given to police in the criminal action and testimony of a police officer as to the statement are admissible in the civil [**824] action when the person who made the statement does not testify.

   The parties submitted the case to the Court of Special Appeals on an agreed statement of the facts from which we distill the following events and facts to place these issues in proper focus.  Aetna Casualty and Surety Company had issued two policies of insurance to Sellers Sales and Service, Inc., an automobile dealership which employed Leonard Richard Prahl as a salesman, and which made available to Prahl an automobile for business use.  Prahl was operating the vehicle owned by Sellers at the time of the incident which is the subject of this litigation.  Each policy of insurance provided coverage for bodily injuries sustained during an "occurrence" and each policy defined "occurrence" to mean "an accident . . ., which results in bodily injury or [***5]property damage neither expected nor intended from the standpoint of the insured."

   The parties further agreed that the following evidence was adduced at trial. In the early morning hours of August 7, 1977, Prahl, operating an automobile owned by his employer, Sellers, offered a ride to Ocean City to Barry Kuhl and Stanley Beutelspacher.  Prahl later picked up two women hitchhikers.  A short while thereafter Prahl stopped on the shoulder of the highway so that everyone could relieve himself.  While the car was parked an altercation occurred between Prahl and Kuhl, resulting in Prahl being knocked to the ground.  Prahl got up, ran to the vehicle, and sped off eastbound on U.S. 50, leaving his four passengers stranded on the shoulder of the highway.

   The two young women and Kuhl and Beutelspacher began to walk eastbound on the shoulder of U.S. 50, hitchhiking as they went, with the two women walking backwards facing the traffic and the two men walking some distance ahead of [*449]them with their backs to the traffic.  Several minutes after he had sped from the scene in an eastbound direction, Prahl, apparently having gone "full circle" on U.S. Route 50, was headed eastbound toward[***6] the pedestrians.  The women were able to get out of the way but the men were struck. Prahl left the scene.

   Prahl was later located out of town by the police and was persuaded to return.  He signed a written statement in which he admitted striking the men but asserted that it was an accident.  Thereafter, he was arrested and convicted in Dorchester County in the District Court of Maryland for assault and battery.

   Kuhl and Beutelspacher instituted suit against Prahl and Sellers Sales and Services, Inc. in the Circuit Court for Anne Arundel County, but while that suit was pending Aetna Casualty and Surety Company instituted a declaratory judgment action in the same court seeking a determination of whether insurance coverage existed under the two policies of insurance for injuries sustained by the two men.  The circuit court stayed the pending tort suit and the declaratory action was tried before a jury in the Circuit Court for Anne Arundel County. n1 The jury returned a verdict for Aetna.

n1 While this Court has recognized that the declaratory judgment remedy may be appropriate for determining rights and obligations of parties under insurance policies, Glens Falls Ins. v. Amer. Oil Co., 254 Md. 120, 254 A.2d 658 (1969); World Insurance Co. v. Perry, 210 Md. 449, 124 A.2d 259 (1955), we have also held that a declaratory judgment action brought by an insurer is inappropriate where the same issue is pending in another proceeding.  See Brohawn v. Transamerica Ins. Co., 276 Md. 396, 347 A.2d 842 (1975), where we said:
 
If the issue upon which coverage is denied were not the ultimate issue to be determined in a pending suit by a third party, a declaratory judgment would be appropriate.  But where, as here, the question to be resolved in the declaratory judgment action will be decided in pending actions, it is inappropriate to grant a declaratory judgment. [Id. at 406.]
 
Here, declaratory judgment was improper because the issue sought to be resolved could have been determined in the pending tort action.  See St. Paul Fire & Mar. Ins. v. Pryseski, 292 Md. 187, 438 A.2d 282 (1981). However, neither the petition for certiorari nor the conditional cross-petition raised the question. Thus, the issue is not before us at this time, though it may be raised on remand in light of our mandate.

[***7]

   [*450] [**825] Kuhl and Beutelspacher appealed and the Court of Special Appeals reversed the judgment and remanded the case for a new trial, Kuhl v. Aetna Casualty and Surety, 51 Md. App. 476, 443 A.2d 996 (1982), holding that the circuit court improperly admitted into evidence copies of Prahl's convictions for assault and battery but properly excluded Prahl's written statement and testimony concerning it.  Aetna petitioned for certiorari and Kuhl and Beutelspacher answered and filed a conditional cross-petition.  We granted both petitions.

   The thrust of Aetna's declaratory judgment action was to establish that Prahl operated the automobile with the intention of striking Kuhl and Beutelspacher. This fact would exclude the "occurrence" from coverage under the policies. Thus, Aetna sought to introduce evidence of Prahl's criminal convictions for assault and battery of Kuhl and Beutelspacher.  The trial court admitted this evidence over objection.  The Court of Special Appeals held that this was error. We agree with the Court of Special Appeals.

   It is a well-settled rule in Maryland that a criminal conviction is inadmissible to establish the truth of the facts upon[***8] which it is rendered in a civil action for damages arising from the offense for which the person is convicted. Eisenhower v. Balto. Transit Co., 190 Md. 528, 59 A.2d 313 (1948); Galusca v. Dodd, 189 Md. 666, 57 A.2d 313 (1948); Insurance Corp. v. Sherby, 165 Md. 1, 165 A. 809 (1933); Pugaczewska v. Maszko, 163 Md. 355, 163 A. 205 (1932); Balto. & Ohio R. Co. v. Strube, 111 Md. 119, 73 A. 697 (1909).

   We explained the rationale behind this rule in Sherby:
 
The reasons for this exclusion of the judgment in a criminal case as evidence of the plaintiff's claim against the traverser are various.  There is a weighty difference in the parties, objects, issues, procedure, and results in the two proceedings with different rules with respect to the competency of the witnesses and the relevancy, materiality, and weight of the testimony.  In a civil proceeding, the [*451] act complained of is the essential element, but in a criminal prosecution it is the intent with which the act is done.  [Id. at 7 (citations omitted).]

    The majority of our sister states have adopted this rule either by statute or case law.  See, e.g., American Fire etc. Service [***9]  v. Williams, 171 C.A.2d 397, 340 P.2d 644 (1959); Brown v. Moyle, 133 Colo. 29, 290 P.2d 1105 (1955); Eggers v. Phillips Hardware Co., 88 So.2d 507 (Fla. 1956); Smith v. Goodwin, 103 Ga. App. 248, 119 S.E.2d 35 (1961); Montgomery County v. Crum, 199 Ind. 660, 161 N.E. 251 (1928); Lipman Bros. v. Hartford Accident & Indemnity Co. , 149 Me. 199, 100 A.2d 246 (1953); Bibbs v. Fidelity Health & Accident Co., 71 S.W.2d 764 (Mo. App. 1934); Moore v. Young, 260 N.C. 654, 133 S.E.2d 510 (1963); Gray v. Grayson, 76 N.M. 255, 414 P.2d 228 (1966); Stover v. Yoakum, 69 Ohio L. Abs. 51, 109 N.E. 2d 877 (1952); Dover v. Smith, 385 P.2d 287 (Okla. 1963); Nowak v. Orange, 349 Pa. 217, 36 A.2d 781 (1944); Frierson v. Jenkins, 72 S.C. 341, 51 S.E. 862 (1905); Smith v. Phillips, 43 Tenn. App. 364, 309 S.W.2d 382 (1956); State v. Benavidez, 365 S.W.2d 638 (Tex. 1963); Smith v. New Dixie Lines , 201 Va. 466, 111 S.E.2d 434 (1959); Forney v. Morrison, 144 W. Va. 722, 110 S.E.2d 840 (1959). Cf. Travelers Indemnity Co. v. Walburn, 378 F. Supp. 860 (D.D.C. 1974); Reid-Elliott Motors v. Lee, 94 So.2d 160 (La. App. 1957).

   Nevertheless, [***10] Aetna points to Wald v. Wald, 161 Md. 493, 159 A. 97 (1931), as support for its contention that the lower court erred in excluding copies of the convictions.  In Wald a woman sued her husband for a divorce alleging abandonment.  The court allowed into evidence, without objection, testimony that the husband had been convicted several times for desertion [**826]and non-support of the wife.  Wald is distinguishable from the case at hand because the testimony concerning the husband's prior conviction was admitted without objection.  Such is not the case here.  Kuhl and Beutelspacher vigorously objected to the admission of the convictions but the trial court allowed them into evidence anyway.

   [*452] We conclude, therefore, that in this jurisdiction a judgment of conviction in a criminal case is not admissible in a civil case as evidence of the facts upon which it is based.  The parties to the criminal prosecution are different.  The rules of evidence are different and the purposes and objects sought to be achieved are different.  It was reversible error for the trial court to have admitted, over objection, in Aetna's case-in-chief, the certified copies of the convictions. [***11]

   Kuhl and Beutelspacher, contrary to Aetna's view, sought to have Prahl's written statement, as well as his oral statement to the Maryland State Police, offered into evidence because, they contend, such statements show that Prahl's striking them with the automobile was an accident and thus the insurance policies cover the occurrence. They argue that Prahl's statements are not hearsay or in the alternative, fall within one of the exceptions to the hearsay rule, namely, state of mind, business records, admission of party opponent, or declaration against interest.  Again we agree with the conclusion of the Court of Special Appeals.

   McCormick defines hearsay as "testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter." C. McCormick, Law of Evidence § 246, at 584 (2d ed. 1972) [hereinafter cited as McCormick].  The rule has been adopted by virtually every state due to the important policy of judicial fairness which it represents:
 
 The hearsay rule . . . is based on experience and grounded[***12] in the notion that untrustworthy evidence should not be presented to the triers of fact.  Out-of-court statements are traditionally excluded because they lack the conventional indicia of reliability: they are usually not made under oath or other circumstances that impress the speaker with the solemnity of his statements; the declarant's word is not subject to cross-examination; and he is not available in order that his demeanor and credibility may be assessed by the jury.  [Chambers [*453] v. Mississippi, 410 U.S. 284, 298, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) (citation omitted).]
 
Clearly Prahl's statement was not made under oath and is dependent upon the veracity of Prahl, who had a motive to lie. The elements of hearsay are present in the statement and unless one of the exceptions applies it cannot be admissible.

   Kuhl and Beutelspacher first assert that the state of mind exception is applicable.  Generally, declarations offered for the state of mind exception only indirectly indicate the mental state they are tendered to prove.  However, "if the utterance would reasonably be understood as an assertion by the declarant of the existence of his state of mind or[***13] feelings which it is offered to prove, it would be hearsay." McCormick § 249, at 590.

   The statement made by Prahl was merely an attempt to explain his former conduct rather than one which was evidence of his intent at the time in which the statement was made.  Wigmore states that "the statements must be of a present existing state of mind, and must appear to have been made in a natural manner and not under circumstances of suspicion." VI J. Wigmore, Evidence § 1725 (Chadbourn Rev. 1976) [hereinafter cited as Wigmore], quoted in Md. Paper Products Co. v. Judson, 215 Md. 577, 590, 139 A.2d 219 (1957). See also Robinson v. State, 57 Md. 14 (1881). Prahl's statement does not meet these requirements and cannot be admitted under the state of mind exception to the hearsay rule.

   Kuhl and Beutelspacher next assert that Prahl's written statement, taken by a police officer, comes within the definition of the business records exception to the hearsay rule. We disagree.  Maryland has codified [**827] the business records exception in Maryland Code (1980 Repl. Vol.), § 10-101 (b) of the Courts and Judicial Proceedings Article, which provides that "a writing or record [***14]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." Kuhl and Beutelspacher confuse a statement given to police after one is arrested for [*454] a crime arising from an accident with a police record or report that the accident occurred.  They are not the same.

   A police report indicating that an accident occurred, the parties involved, etc., noting aspects of the accident observable by the investigating officer would come within the statute.  Statements made by witnesses or parties to the accident to the officer would not come within the statute.  Honick v. Walden, 10 Md. App. 714, 272 A.2d 406 (1971). See also Hutchinson v. Plante, 175 Conn. 1, 392 A.2d 488 (1978); State v. Lungsford, 167 N.J. Super. 296, 400 A.2d 843 (1979); Mercurio v. Fascitelli, 116 R.I. 237, 354 A.2d 736 (1976).

   The rationale behind the business records exception is that the writer is under a duty to make a truthful report.  The court in Lungsford, supra, gives a persuasive explanation as to why all items in a police report are not admissible under this exception: [***15] 
 
Obviously, the making of investigations and the receiving of information concerning crime is usual police business.  Hence a police record is admissible to prove, for example, that a report of crime was made by a member of the public and when the report was made and received.  It is not, however, admissible to prove the truth of the contents of that report since members of the public, whether targets of investigation, witnesses or victims, are not under a duty in the nature of a business duty, to make an honest and truthful report.  Thus, such "citizen" declarations are virtually universally held to constitute excluded hearsay in respect of otherwise admissible police reports.  [Id. at 850 (citations omitted).]

   Prahl's statement does not come within the statute because it is not a memorandum of the accident such as the statute contemplates.  It is merely Prahl's explanation of his part in the event.  Prahl's statement is not accorded the reliability necessary to come within the business records exception because Prahl had no duty to make a truthful [*455] statement.  In fact, as the accused in the case, he had every motive to lie. The police officer taking the [***16]statement had no first-hand knowledge as to whether the events happened as Prahl had indicated.  The officer merely had a written record of what Prahl told him.  This is hearsay not falling within the business records exception.

   Kuhl and Beutelspacher next maintain that Prahl's statement is an admission. Admissions are "the words or acts of a party-opponent, or of his predecessor or representative, offered as evidence against him." McCormick § 262, at 628. Admissions are considered to be substantive evidence of the facts admitted. Smith v. Branscome, 251 Md. 582, 248 A.2d 455 (1968); Terry v. O'Neal, 194 Md. 680, 72 A.2d 26 (1950); Lambros v. Coolahan, 185 Md. 463, 45 A.2d 96 (1945); Kirk & Sons v. Garrett, 84 Md. 383, 35 A. 1089 (1896); Maurice v. Worden, 54 Md. 233 (1880).

   A party may offer into evidence against his opponent anything said by him as long as it illustrates some inconsistency with the facts now asserted by the opponent in pleading or in testimony.  Wigmore, § 1048.  Admissions do not have to be against the speaker's interest when made and may even be made by someone not having personal knowledge of the fact admitted.  Unlike some hearsay exceptions, [***17] the speaker need not be, and rarely is, unavailable. McCormick § 277.

   Prahl's statement does not come within this exception to the hearsay rule because the statement is not being offered against him as a party-opponent in this case and he is not a representative of Aetna; thus the statement cannot be admitted [**828] against Aetna.  There must be some relationship between the party making the statement and the party whom it is being offered against if they are not the same party.  That relationship is lacking here.  Kuhl and Beutelspacher are co-defendants of Prahl's in this action.  One co-defendant cannot use a statement made by another co-defendant as an admission against the plaintiff.  Accordingly, [*456] Prahl's statement is not an admission in this case. n2

 n2 It appears that Kuhl and Beutelspacher have made the all too common error of failing to distinguish between an admission and a declaration against interest.  However, as the next section will indicate, the declaration against interest exception does not apply either.

[***18]

   Finally, Kuhl and Beutelspacher claim the declaration against interest exception applies.  This exception requires that the declarant state facts which are against his pecuniary, proprietary or penal interest at the time they are made and that the declarant be unavailable at the time of trial.  McCormick § 276 (2d ed.), § 278 (1978 Supp.). n3 It evolved in England during the 18th century premised upon the grounds
 
(1) that the hearsay rule might exclude the only available evidence, and result in great injustice unless exception were made, and (2) that no person would be likely to make such a statement unless true, and hence the statement would be free enough from the risk of untrustworthiness to make the requirement of cross-examination a work of supererogation.  [Thomas v. State, 186 Md. 446, 449, 47 A.2d 43 (1946).]

n3 Declarations against proprietary and pecuniary interests satisfying the exception always were admissible by American courts but it has been only recently that declarations against penal interests have been included within the exception.

[***19]

   Two prerequisites to this exception are necessity, i.e., the unavailability of the declarant due to death, insanity, etc., and a circumstantial probability of trustworthiness, i.e., there must not be a motive to lie. Wigmore § 1455. Many courts and legal writers fail to distinguish between admissions and declarations against interest.  However, they are not the same.
 
[T]he admissions of a party-opponent come in without satisfying any of the requirements for declarations against interest.  The admissions need not have been against interest when made, though it will usually happen that they were. The party [*457] making the admission need not be, and seldom is, unavailable. Nor does the party making the admission need to have had personal knowledge of the fact admitted.  Accordingly, when the admission of a party, or a party's predecessor in interest, is sought to be introduced, it should be offered as and tested by the requirements for parties' admissions, not those for declarations against interest.  On the other hand, when the statements were those of a non-party declarant, now dead or unavailable and the position of the declarant is found not to meet[***20] the requirements of "privity" necessary to class him as a party's predecessor, then the theory of declarations against interest may be a case-saving ticket of admission. [McCormick § 276 (citations omitted).]

   Prahl's statement does not come within the declaration against interest exception because it was not against his pecuniary, proprietary, or penal interest at the time it was made.  Pecuniary interests are those relating to a person's financial situation in some manner. n4 Proprietary interests typically have concerned property ownership, i.e., whether a person owns certain land or has conveyed it.  McCormick § 277.  Penal interest would involve exposure to risk of punishment for a crime.  McCormick § 278 (1978 Supp.).  None of these types of interests was involved in Prahl's statement.

n4 An example of a pecuniary interest is an acknowledgement by the declarant that he is indebted to another.  McCormick § 276.

   Prahl's statement was not against his interest in any manner because he stated that[***21] [**829] the striking of Kuhl and Beutelspacher was an accident, thus seeking to exonerate himself from any civil or criminal charges. Instead of being a declaration against interest, the statement was merely a self-serving declaration made in an attempt to free the speaker of any liability.  This Court has consistently held that self-serving declarations are not admissible. Evans v. Buchanan, 183 Md. 463, 38 A.2d 81 (1944); Takoma Park [*458]Bank v. Abbott, 179 Md. 249, 19 A.2d 169 (1941), cert. denied, 314 U.S. 672 (1941); Rosman v. Tr. Ins. Co. of Hartford, 127 Md. 689, 96 A. 875 (1916); Jones v. Dugan, 124 Md. 346, 92 A. 775 (1914). The purpose of this rule is obvious.

   One of the reasons given for the declaration against interest exception to the hearsay rule is that the person is unlikely to lie in such a situation. This is not so when a self-serving declaration is in issue because the person has a motive to lie. The statement made by Prahl in this case is a perfect example.  While we do not assert that Prahl lied in his statement, the motive to do so was present because Prahl faced a prison term if convicted of assault. His interests were best[***22] served by denying that his acts were intentional and this is what he did.  Thus, Prahl's statement does not come within the declaration against interest exception to the hearsay rule. Because none of the other exceptions is applicable, the statement is hearsay and is inadmissible.  Accordingly, the judgment of the Court of Special Appeals is affirmed.

   Judgment of the Court of Special Appeals affirmed.

   Aetna Casualty and Surety Company to pay the costs. 

STATE OF MARYLAND v. MAMIE V. BRAZLE a/k/a Mamie Eldridge 
No. 76, September Term, 1982
 
Court of Appeals of Maryland
 
296 Md. 375; 463 A.2d 798; 1983 Md. LEXIS 266

 August  8, 1983, Decided

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals.  Circuit Court for  Anne Arundel  County, Childs, J.

DISPOSITION: Judgment of Court of Special Appeals reversed and case remanded to that Court to affirm the judgment of the Circuit Court for Anne Arundel County. Brazle to pay the costs.

CORE TERMS:  guilty plea, recommendation, pleading guilty, intelligently, probation, totality, sentence, factual basis, plea of guilty, plead guilty, presentence, sentencing, maximum sentence, bound to follow, evidenced, fixed procedure, understandable, Criminal Law, beyond a reasonable doubt, assistance of counsel, welfare fraud, unconditionally, innocence, guilt, restitution, sentenced, asserting, promised, elected, lighter

COUNSEL: Stephanie J. Lane, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellant.

   Charles T. Vekert, with whom was John M. Morse on the brief, for appellee.

JUDGES: Murphy, [***3] C. J., and Smith, Eldridge, Cole, Davidson, Rodowsky and Couch, JJ.  Cole, J., delivered the opinion of the Court.

OPINIONBY: COLE

OPINION: [*376] [**799] The issue presented in this case is whether a guilty plea is voluntarily and intelligently entered when the trial judge in accepting same does not specifically advise the defendant that the court is not bound to follow a presentence recommendation of probation.

   Mamie Brazle was indicted for obtaining public assistance by fraud and other offenses in Anne Arundel County.  She pleaded guilty to welfare fraud in the Circuit Court for Anne Arundel County in exchange for the State's agreeing to make no recommendation as to sentencing. The State further agreed to dismiss the other counts in the indictment but reserved the right to seek restitution from Brazle.  The record from the trial court indicates the following colloquy between Brazle and her attorney as to whether the plea was voluntary and knowing and whether she understood the consequences of the plea:
 
Counsel: Ms. Eldridge, do you go by or are you known by any other name or nickname?
 
Defendant: No.
 
Counsel: At one time were you known as Ma . . Mamie Brazeel[***4] or Brazle? 
 
Defendant: Yes.
 
[*377] Counsel: How . . how far have you gone in school, Ms. Eldridge?
 
Defendant: I completed the twelfth grade.
 
Counsel: And you can read and write, is that correct?
 
Defendant: Yes.
 
Counsel: Are you married at this time?
 
Defendant: No I'm not.
 
Counsel: Are you supporting anyone other than yourself?
 
Defendant: My two kids.
 
Counsel: How old are they?
 
Defendant: One nineteen and one fifteen.
 
Counsel: Do they live with you?
 
Defendant: Yes.
 
Counsel: Do you understand that you're charged with welfare fraud . . that is, that you obtained money, property, food stamps or other assistance when you were not entitled to and that that assistance came as part of a program administered by the County through the State of Maryland?  Do you understand that?
 
Defendant: Yes.
 
Counsel: And do you understand that the State would have to prove that you obtained money or other assistance when you were not entitled to it?
 
Defendant: Yes.
 
[**800] Counsel: You understand that the maximum penalty for this crime is three years in jail and a thousand dollar fine as I explained that to you?
 
Defendant: [***5] Yeah.
  
Counsel: And that was your understanding when you entered the plea of guilty, is that correct?
 
Defendant: Yes.
 
[*378] Counsel: Are you now on parole or on probation?
 
Defendant: Neither one.
 
Counsel: Are you under the influence of an alcoholic beverage or any drug or narcotic or any other medicine which would prevent you from understanding what you're doing this morning?
 
Defendant: No.
 
Counsel: Are you aware of any mental condition or mental disability which would prevent you from understanding what you're doing this morning?
 
Defendant: No.
 
Counsel: Do you understand that by pleading guilty you admit that in truth and in fact you are guilty . . that is, that you did obtain these funds when you weren't entitled to them and you committed the crime as alleged?  Do you understand that?
 
Defendant: Yes.
 
Counsel: Other than what Mr. Patterson, who is the State's Attorney, has said regarding the State making no recommendation and asking for restitution . . have you been promised anything by the State's Attorney, by the police, or by any other agent or person in the government in order to get you to plead guilty?
 
Defendant: [***6] No.
 
Counsel: Has anyone made any promise of a lighter sentence, reward, immunity or any other type of promise to get you to plead guilty?
 
Defendant: No.
 
Counsel: Have any . . have any threats been made against you to force you to plead guilty?
 
Defendant: No.
 
Counsel: Have you had time to talk with me about this case and are you satisfied with the services and advice that I have provided to you?
 
[*379] Defendant: Yes.
 
Counsel: You understand that this plea is being offered without conditions and that you're making it freely and voluntarily, is that correct?
 
Defendant: Yes.
  
Counsel: You understand that as a defendant charged with a crime you have the absolute right to plead not guilty and to have a speedy public trial with the assistance of counsel? Do you understand that?
 
Defendant: Yes.
 
Counsel: And you understand that that trial could be either by the Court or by the Court sitting with a jury?  Do you understand that?
 
Defendant: Yes.
 
Counsel: And you understand that a right to a trial by jury would involve a jury of twelve persons selected from the citizens of Anne Arundel County who would hear your case and that[***7] all twelve jurors must find that you're guilty unanimously and that that finding must be beyond a reasonable doubt? Do you understand that?
 
Defendant: Yes.
 
Counsel: And by pleading guilty you give up that right?  You understand that?
 
Defendant: Yes.
 
Counsel: By entering a guilty plea . . . do you understand that by entering a guilty plea you give up your right to contest any statement that you gave to the police or any agent of the government . . that that statement was taken in violation of your constitutional rights?  Do you understand that?
 
Defendant: Yes.
 
Counsel: By entering a guilty plea, Ms. Eldridge, you are very limited in your ability to appeal this case to the Court of Special [**801] Appeals, which is the [*380] higher Court, and that if you wish to appeal after entering a guilty plea your appeal would be limited to questions of jurisdiction, which means whether this Court has the authority to try you and whether this crime took place in Anne Arundel County, whether your plea was voluntarily made . . and understandingly made . . and competency of counsel . . that means whether I gave you the proper advice, and an illegal sentence. [***8] If the Judge were to impose a sentence in excess of what the law allows . . that those would be your only appeal rights.  Do you understand that?
 
Defendant: Yes.
 
Counsel: As a criminal defendant, if you wish to be tried for this crime either by the Court or by a jury you would be presumed innocent, and the State would be required to prove that you were guilty beyond a reasonable doubt, and that by pleading guilty you give up that right.  Do you understand?
 
Defendant: Yes.
 
Counsel: Do you understand further that if you were tried for this crime either by a court or by a jury you would not have to take the stand and testify, and your failure to do so could not be commented upon or considered, and that by pleading guilty you give up that right?  Do you understand?
 
Defendant: Yes.
 
Counsel: If you elected not to testify in a jury trial the jury would be instructed by the Judge that they are to take no inference from your failure to testify.  Do you understand that?
 
Defendant: Yes.
 
Counsel: If you were tried for this crime you would also have the right to confront any witnesses against you and, with the assistance of counsel, you would have the right[***9] to cross-examine those witnesses.  [*381] By pleading guilty you give up that right.  Do you understand?
 
Defendant: Yes.
 
Counsel: Also, if you elected to be tried for this crime either by the Court or by a jury you would have the right to present any witnesses that you wish to testify on your behalf and by pleading guilty you give up that right.  Do you understand?
 
Defendant: Yes.
 
Counsel: Knowing all of this, do you still wish to plead guilty?
 
Defendant: Yes.

   After counsel's examination the State submitted the factual basis for the plea, asserting that Brazle had received welfare payments during a period in which she was employed.  The court accepted the plea and ordered a presentence investigation.  The presentence investigation recommended probation but the court sentenced Brazle to the statutory maximum of three years in addition to ordering her to pay restitution and court costs.

   Brazle appealed to the Court of Special Appeals, asserting that the plea was involuntary because she did not understand that she could receive a three year sentence of imprisonment.  She alleged that she interpreted the State's agreement to make no recommendation as[***10] to sentencing to mean that it would recommend that she not be sentenced at all.  The Court of Special Appeals reversed in an unreported per curiam opinion, Brazle a/k/a Eldridge v. State, No. 1273, September Term, 1981, filed May 17, 1982, holding that it could not "say beyond a reasonable doubt that Mrs. Brazle entered a knowing and voluntary guilty plea." The court indicated that a judge must inform every defendant who pleads guilty where the State makes no recommendation as to sentence, but the defendant is eligible for probation, that the court is not required to provide probation. We disagree.

   Maryland Rule 731 c governs the acceptance of guilty pleas.  It provides:

   [*382] If the defendant tenders a plea of guilty, the court may not accept the plea until it determines, after an examination of the defendant on the record in open court by the court, by the State's Attorney, [**802] by the attorney for the defendant, or by any combination thereof, that the plea is made voluntarily, with understanding of the nature of the charge and the consequences of the plea.  The court may accept the plea of guilty even though the defendant does not admit that he is in fact[***11] guilty if the court is satisfied that there is a factual basis for the plea.  If the court refuses to accept a plea of guilty, the court shall enter a plea of not guilty.
 
One of the first cases decided following the promulgation of Rule 731 c, Hudson v. State, 286 Md. 569, 409 A.2d 692 (1979), cert. denied, 449 U.S. 845 (1980), outlines when the standard for determining the validity of a guilty plea is met. 

   The standard is met when the plea is entered by an accused:
 
(1) voluntarily, that is, not through coercion, terror, inducements or threats, subtle or blatant; and
 
(2) with an intelligent understanding, that is, not through ignorance or incomprehension;

   (a) of the nature of the offense to which he is pleading guilty; and

   (b) of the possible consequences of such a plea; and
 
(3) unconditionally, that is, without any condition or qualification;
 
(4) even though the accused denies his guilt, provided the prosecution demonstrates a strong factual basis for the plea and the accused clearly expresses a desire to enter it despite his professed belief in his innocence. [Id. at 595-96.]

   [*383] More recently in State v. Priet, 289[***12] Md. 267, 424 A.2d 349 (1981), we addressed the issue of whether Rule 731 c required that a trial judge follow a fixed procedure in determining whether a guilty plea is made voluntarily and intelligently. In determining that it did not, we stated that:
 
Rule 731 c does not impose any ritualistic or fixed procedure to guide the trial judge in determining whether a guilty plea is voluntarily and intelligently entered.  The rule does not require that the precise legal elements comprising the offense be communicated to the defendant as a prerequisite to the valid acceptance of his guilty plea. Rather, by its express terms, the rule mandates that a guilty plea not be accepted unless it is determined by the court, after questioning of the defendant on the record, that the accused understands the "nature" of the charge.  This, of course, is an essential requirement of the rule and must be applied in a practical and realistic manner.  It simply contemplates that the court will explain to the accused, in understandable terms, the nature of the offense to afford him a basic understanding of its essential substance, rather than of the specific legal components of the offense to which[***13] the plea is tendered.  The nature of some crimes is readily understandable from the crime itself.  Necessarily, the required determination can only be made on a case-by-case basis, taking into account the relevant circumstances in their totality as disclosed by the record, including among other factors, the complexity of the charge, the personal characteristics of the accused, and the factual basis offered to support the court's acceptance of the plea.  [Id. at 288.]
 
   The "totality of the circumstances" test adopted by Priet was enunciated in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), which held that the voluntariness of a guilty plea "can be determined only by considering all of the relevant circumstances surrounding [*384] it." Id. at 749. Courts applying this test have looked more so at all of the circumstances of the acceptance of the guilty plea, as evidenced by the record, rather than the particular words that a judge uses.  See Griffith v. Wyrick, 527 F.2d 109 (8th Cir. 1975); Barrett v. State, 544 P.2d 830 (Alaska 1975); State v. Colyer, 98 Idaho 32, 557 P.2d 626 (1976); Anderson v. State, 263 Ind. 583, [***14] 335 N.E.2d 225 (1975); Commonwealth v. Morrow, 363 Mass. 601, 296 [**803] N.E.2d 468 (1973); State v. Atwater, 193 Neb. 669, 228 N.W.2d 876 (1975); State v. Storbakken, 246 N.W.2d 78 (N.D. 1976); Clark v. State, 294 N.W.2d 916 (S.D. 1980); State v. Williams, 404 A.2d 814 (R.I. 1979); Jones v. State, 59 Wis.2d 184, 207 N.W.2d 890 (1973). Cf. United States v. Journet, 544 F.2d 633 (2nd Cir. 1976).

   Brazle contends that the court should have explicitly told her that she could go to jail for three years.  The State, on the other hand, argues that this was done when Brazle was informed that the maximum sentence was three years.  We agree with the State.

   As previously indicated, Rule 731 c does not require the court to recite a specific litany before it accepts a guilty plea. All that is required is that the court is satisified that the plea is voluntarily made with an understanding of the nature of the charges and the consequences of the plea.  As stated in Priet, supra, the circumstances in their totality as evidenced by the record are examined to insure that this standard is met.

   Applying the totality of the circumstances test to the facts in this [***15]case it is clear that Brazle's guilty plea was intelligently and voluntarily given.  We reject Brazle's contention that she should have been specifically told that the court was not bound to follow presentence recommendation of probation.

   Brazle was told that the maximum sentence was three years and she stated that she understood.  Further, she stated that no promises had been made to her other than the State's agreement to make no recommendation as to sentencing and that no one had promised her a lighter sentence. [*385] Based on these responses we do not agree with Brazle that the plea was not voluntarily made because she did not understand the possible consequences of the plea.  Brazle had a twelfth grade education, was sober, and was not under the influence of drugs of any type.  In light of the responses given by Brazle during counsel's examination to determine whether the plea was voluntarily and intelligently given, her background, and her mental and physical condition at the time, it was proper for the court to accept the plea.

   Our review of the record indicates that the trial court conducted proceedings where the evidence clearly demonstrated that the defendant voluntarily [***16]and intelligently entered a guilty plea with full understanding of the consequences of her action.  The Court of Special Appeals was wrong in reversing the defendant's conviction.

   Judgment of Court of Special Appeals reversed and case remanded to that Court to affirm the judgment of the Circuit Court for Anne Arundel County.

   Brazle to pay the costs. 

THEODORE E. RUTHERFORD v. WILLA DEAN RUTHERFORD; BRUCE O.KATZENBERGER v. TERESA KATZENBERGER 
No. 104, September Term, 1982
 
Court of Appeals of Maryland
 
296 Md. 347; 464 A.2d 228; 1983 Md. LEXIS 271

 August  5, 1983, Decided

   PRIOR HISTORY: [***1]  
Two appeals from the Circuit Court for  Anne Arundel  County; Rutherford case -- Thieme, J., and Katzenberger case -- Williams, J., pursuant to certiorari to the Court of Special Appeals.

DISPOSITION: Judgments of the Circuit Court for Anne Arundel County reversed. Appellees to pay costs.

CORE TERMS:  contempt, civil contempt, indigent, incarceration, right to counsel, right to appointed counsel, appointed counsel, arrearage, appointment of counsel, child support, writ of certiorari, failure to comply, imprisonment, decree, support order, unemployed, assistance of counsel, process right, separation agreement, Fourteenth Amendment, purging, paying, Sixth Amendment, constitutional right to counsel, special circumstances, constitutional right, dissenting opinion, ability to pay, incarcerated, nonsupport

COUNSEL: Gary S. Offutt, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellants.

   No briefs filed by appellees.

JUDGES: Murphy, C. J., and Smith, Eldridge, Cole, Davidson, Rodowsky and Couch, JJ.  Eldridge, J., delivered the opinion of the Court.  Murphy, C. J., concurs in part and dissents in part and filed a concurring and dissenting opinion at page 365 infra.

OPINIONBY: ELDRIDGE

OPINION: [*348] [**229] We granted the petition for a writ of certiorari in these cases to decide whether, as a matter of due process, a defendant in a civil contempt proceeding, in which the court orders actual incarceration, has the right to counsel including government furnished counsel if the defendant is indigent. We hold that this right is guaranteed by the Due Process Clause of the Fourteenth Amendment and by Art. 24 of the Maryland Declaration of Rights.
 
   [*349] I.

   The relevant facts in each of the two cases before us are as follows.

   A. Katzenberger v. Katzenberger

   On February 2, 1978, the Circuit Court for Anne Arundel County ordered that the defendant Bruce O. Katzenberger[***4] make weekly child support payments of $10.00 per child for each of his two children, or a total of $20.00 weekly, through the Domestic Relations Division of the court.  The two children were in the custody of the defendant's former wife, the plaintiff Teresa Katzenberger. After an arrearage had accumulated because of the defendant's failure to make regular payments, the court on April 10, 1979, ordered that the defendant pay an additional $5.00 per week towards the arrearage.

   Subsequently, on seven different occasions, the Domestic Relations Division of the Circuit Court for Anne Arundel County filed petitions to cite the defendant for contempt for failure to comply with the 1978 and 1979 support orders, and each time the circuit court issued an order to show cause. Nevertheless the sheriff was unable to locate the defendant, and the petitions and orders were never served.  Finally the plaintiff retained private counsel who, by using a private process server, was able to serve the defendant with a petition for contempt and an order to show cause.

   A hearing on the contempt petition was held on July 21, 1982, at which the plaintiff was represented by counsel.  The defendant was[***5] not represented by counsel; he was not advised by anyone concerning a right to counsel, and nothing was said by the court or by the plaintiff's attorney concerning his lack of representation. n1 A support officer [**230] of [*350]the circuit court's Domestic Relations Division testified that the arrearage then due was $3,714.74, of which $2,219.44 was owed to the State of Maryland for "social service payments" made to the plaintiff and $1,495.30 was owed to the plaintiff.  After the plaintiff herself testified, her counsel concluded the plaintiff's case by asking that the defendant be held in contempt and that attorney fees be awarded.

n1 The earlier unserved contempt petitions and orders to show cause, which were on a Domestic Relations Division form, contained the following language at the bottom:
 
"NOTICE TO DEFENDANT:

   You can be sentenced to confinement in the Anne Arundel County Detention Center for contempt of Court.  Therefore, you are advised that you have the right to be represented, at the hearing, by an Attorney.  If you can not afford to employ an Attorney, you are instructed to immediately contact the Office of the Public Defender.  Failure to do so may constitute a waiver of your right to be represented by counsel.  You are also directed to bring with you your latest pay vouchers, any and all receipts, money order stubs and/or cancelled checks evidencing your support payments, complete itemization of your assets and living expenses."
 
The contempt petition and order to show cause which were apparently prepared by the plaintiff's attorney, which were served upon the defendant, and which commenced the instant contempt case, did not contain any language with regard to the defendant's right to counsel.

[***6]

   The defendant was then given an opportunity to testify, and he began by referring to the plaintiff's request for attorney fees:

   "Your honor, as far as paying legal fees for [the plaintiff], I feel that if I could pay a lawyer it would be for myself, rather than [the plaintiff].  I am currently unemployed, which Mr. Bustard [the Domestic Relations Division support officer] is aware of."
 
Mr. Katzenberger went on to testify that he had been discharged from his last place of employment, that the pay due him from that employer had been attached, that he was "receiving unemployment benefits which don't amount to much," and that his current wife "works to support myself and our four year old child.  And we are just barely making it." He further testified that he had been seeking employment by looking in newspapers, going to the "unemployment office," and "walk[ing] into a lot of places," but that he had no employment prospects at the time.

   On cross-examination, Mr. Katzenberger acknowledged that, when he had been employed, he had not made some [*351] support payments because he was saving his money to retain a lawyer in connection with "my visitation rights which [***7]were denied for six years." After cross-examination, Mr. Katzenberger stated to the court that some payments were taken out of his salary when he was employed, that "the majority of the payments made this year were voluntarily made from out of my unemployment benefits or money that I had borrowed from my wife or mother," that he was not "evading or trying to avoid making these payments," and that the payments would be made "if I had it in my means."

   At the conclusion of the hearing, the trial judge stated:
 
"Well, I think certainly I will find you in contempt. You didn't pay when you could have paid, recognizing the fact that you are now unemployed the situation is somewhat different.  But I think you have to make every effort to get yourself employed so you are back in the position not only to make the current payments but to start paying on the arrearage."
 
On July 30, 1982, the court signed an order sentencing Katzenberger to serve six months in the Anne Arundel County Detention Center, with the sentence to begin on September 1, 1982.  Under the court's order, the defendant could purge himself of the contempt by paying "$300.00 toward his arrearage," plus $10.00 [***8]per week per child toward the arrearage, plus $10.00 per week per child for current child support.

   Thereafter, an attorney in the Public Defender's Office entered his appearance as Mr. Katzenberger's attorney, and, on August 30, 1982, an appeal was taken to the Court of Special Appeals.  Prior to a hearing in the Court of Special Appeals, this [**231] Court granted Katzenberger's petition for a writ of certiorari. n2

n2 Initially, as a result of an agreement between the plaintiff's attorney and the Assistant Public Defender, the order sentencing Mr. Katzenberger to six months in jail was stayed pending appeal.  After this Court granted the petition for a writ of certiorari, counsel for the plaintiff filed a motion to dismiss the appeal as moot, attaching an order of the circuit court dated November 24, 1982, stating that Mr. Katzenberger's "payment of $205.00 towards support arrearage is sufficient to purge the Defendant of contempt of this Court" and ordering that "the six month jail sentence set forth in this Court's order of July 30, 1982 is hereby vacated." The November 24th order concluded by requiring the defendant to pay the costs of the contempt proceedings.  The defendant opposed the motion to dismiss on the grounds (1) that the case was not moot because of the defendant's liability for costs and (2) that even if it were moot, the case involved frequently recurring issues of public importance which ought to be decided.  On December 20, 1982, this Court issued an order denying the motion to dismiss.

   Although the order denying the motion did not specify the reasons, the order was based on the second ground urged by the defendant and not the first.  It is settled that an otherwise moot case is not regarded as a live controversy merely because of liability for costs.  See, e.g., Wingert v. First National Bank, 223 U.S. 670, 672, 32 S.Ct. 391, 56 L.Ed. 605 (1912); Pearson v. Quinn, 113 Ark. 24, 166 S.W. 746 (1914); Meyer v. Marshall, 62 Ill.2d 435, 441, 343 N.E.2d 479 (1976); Dunn v. State, 163 Ind. 317, 320-321, 71 N.E. 890 (1904); Foucher v. Grass, 60 Iowa 505, 506-507, 15 N.W. 302 (1883); Commissioners v. Gill, 126 N.C. 86, 35 S.E. 228 (1900); In re Kaeppler, 7 N.D. 307, 75 N.W. 253 (1898); State v. Lambert, 52 W. Va. 248, 43 S.E. 176 (1903). As to those circumstances under which this Court will decide a moot case, see, e.g., Hagerstown Repro. Health Serv. v. Fritz, 295 Md. 268, 272 (majority opinion), 273-274 (dissenting opinion), 454 A.2d 846, 848, 849 (1983); News American v. State, 294 Md. 30, 39, 447 A.2d 1264 (1982); Comm'n On Med. Discipline v. Stillman, 291 Md. 390, 398 n. 3, 435 A.2d 747 (1981); Kindley v. Governor of Maryland, 289 Md. 620, 631, 426 A.2d 908 (1981); Rockville Grosvenor, Inc. v. Mont. Co., 289 Md. 74, 84-85, 422 A.2d 353 (1980); Chase v. Chase, 287 Md. 472, 483-484 (dissenting opinion), 413 A.2d 208, 214 (1980); Attorney Gen. v. A. A. Co. School Bus, 286 Md. 324, 328 (majority opinion), 333-334 (dissenting opinion), 407 A.2d 749, 752, 755 (1979). 

[***9]

   [*352] B. Rutherford v. Rutherford

   Theodore E. Rutherford and Willa Dean Rutherford, then husband and wife, entered into a separation and property settlement agreement in January 1982, under which, among other things, Theodore Rutherford agreed to pay Willa Dean Rutherford $400.00 per week for the support and education of their two minor children.  In the Circuit Court for Anne Arundel County, on March 23, 1982, Willa Dean Rutherford was granted a divorce a vinculo matrimonii, with the decree embodying the requirement that Theodore Rutherford make weekly child support payments of $400.00.

   In April 1982, Mrs. Rutherford filed a petition to hold her former husband in contempt for failing to make child support payments under the decree, and an order to show cause was entered.  The matter was heard by the Circuit Court for Anne Arundel County on May 11, 1982.  At the beginning of [*353] the hearing, after the plaintiff's attorney identified himself, the following colloquy occurred:

   "COURT: And your name, sir?

   DEFENDANT: Theodore Rutherford.

   COURT: Mr. Rutherford, are you representing yourself?

   DEFENDANT: I can't afford an attorney.

   COURT: All right.  Then[***10] I assume you're representing yourself.  Do you understand why you're here?

   DEFENDANT: Yes, sir.

   COURT: Why are you here?

   DEFENDANT: I'm here because I can't pay her the $400 a week child support.

   COURT: Well, you're here because they're asking that you be held in contempt. 

   DEFENDANT: The Court ordered me to pay it . . . .

   COURT: I understand that.

   DEFENDANT: . . . and I can't."
 
As in the Katzenberger case, nothing was said to Mr. Rutherford during the hearing suggesting that he had a right to counsel.

   [**232] The plaintiff testified at the May 11th hearing that the defendant made weekly payments in January 1982, that since February 1, 1982, he has paid her only $300.00, and that the arrearage amounted to $5,300.00.  She further testified that the reason given to her by the defendant for not making the payments was that the defendant did not have the money and that he had lost his business.

   The defendant, under questioning from the court, then testified that he had lost his business in early March 1982, that he had been unemployed since that time, that he had been seeking employment without success, and that he had been evicted from where he had lived "because[***11] the $300 -- [*354] the last $300 I gave her was my rent money." Mr. Rutherford further stated that he was presently living rent-free with a friend, that he had "sold just about everything I owned to just survive to now," and that "I lost my attorney 'cause I couldn't pay him for the work he had already done." On cross-examination, the plaintiff's attorney asked Mr. Rutherford whether he sold drugs, and the defendant replied that he did not.

   At the conclusion of the testimony, the court asked the plaintiff's attorney "now how can I hold him in contempt?" The attorney responded by suggesting that Mr. Rutherford was in contempt for failing to make all of the payments for the period prior to early March when he became unemployed. In addition the plaintiff's attorney, while stating that he was in no position "at this time to introduce any evidence," stated his belief that Mr. Rutherford "has income from less conventional sources.  And I believe if the Court would impose him in contempt that we would find that money would begin flowing." With regard to the suggestions that he had any income and that he had been dealing in drugs, the defendant in rebuttal stated that the allegations[***12] were "totally untrue."

   The hearing ended with the court stating that it "accept[ed]" Mr. Rutherford's testimony concerning his "present situation," but that the defendant was in contempt because of his failure to make payments prior to the time in early March when he became unemployed. On May 12, 1982, an order was entered sentencing the defendant to the Anne Arundel County detention center for a period of ninety days, commencing May 26, 1982, with the defendant being able to purge himself by paying the arrearage.

   Sometime after the May 12th order, an attorney in the Public Defender's Office began to represent the defendant, and, on May 21, 1982, the defendant's attorney filed a motion to revise the May 12th order.  As a result of the motion, the court extended the date for Mr. Rutherford to begin serving his sentence until August 30, 1982, if he had not purged the contempt by that time. Otherwise, the May 12th order was left intact.

   [*355] The defendant Rutherford, represented by the Public Defender's Office, took an appeal to the Court of Special Appeals.  As in the Katzenberger case, this Court granted Rutherford's petition for a writ of certiorari prior to argument[***13] in the Court of Special Appeals. n3

n3 Rutherford's brief indicates that the circuit court has stayed the enforcement of its order pending this appeal.

   II.

   In this Court, both defendants present the same two issues.  First, the defendants maintain that the contempt orders were erroneous because, at the time they were entered, the defendants were financially unable to comply with the purging provisions.  Second, the defendants contend that they were denied the right to counsel guaranteed by the due process clauses of the federal and state constitutions.  The defendant Rutherford makes a third argument, namely that the trial court erred in finding him in contempt "for failing to obey a court order at a time when the order did not exist." As we agree with the defendants' [**233] position on all three issues, we shall reverse. n4

n4 The defendants discuss a fourth question in their briefs, which is whether the correct standard of proof in cases such as this is "preponderance of the evidence," "clear and convincing evidence," or "beyond a reasonable doubt." At oral argument, however, the defendants' attorney conceded that the question is not actually presented by the facts of either case.  Consequently, we express no opinion on this question at the present time.  See, however, State v. Roll and Scholl, 267 Md. 714, 728, 298 A.2d 867, 69 A.L.R.3d 483 (1973).

[***14]

   A. Financial Inability to Comply

   As the purpose of the contempt proceedings and orders in the instant cases was not punitive but was to coerce the defendants to comply with court orders for the benefit of their children, the contempt proceedings were civil and not criminal.  See, e.g., Elzey v. Elzey, 291 Md. 369, 373, 435 A.2d 445 (1981); Williams and Fulwood v. Director, 276 Md. 272, 313, 347 A.2d 179 (1975), cert. denied, 425 U.S. 976, 96 [*356] S.Ct. 2178, 48 L.Ed.2d 801 (1976); McDaniel v. McDaniel, 256 Md. 684, 687, 262 A.2d 52 (1970); Donner v. Calvert Distillers Corp., 196 Md. 475, 77 A.2d 305 (1950). The Maryland law concerning a defendant's ability to comply with a civil contempt order was recently summarized by us in Elzey v. Elzey, supra, 291 Md. at 374-375, as follows:
 
"In all civil contempt proceedings, any order imposing a penalty upon the defendant must contain a purging provision with which the defendant has the ability to comply.  State v. Roll and Scholl, supra, 267 Md. at 728; McDaniel v. McDaniel, supra, 256 Md. at 689-690, 692; Johnson v. Johnson, 241 Md. 416, 419-420, 216 A.2d 914 (1966). The 'choice' must[***15] be the defendant's 'as to whether [he can] comply.' Williams and Fulwood v. Director, supra, 276 Md. at 313.

   "Consequently, with regard to civil contempt proceedings based upon the defendant's failure to comply with a decree ordering support payments, 'imprisonment may be avoided by showing that one has neither the money nor the ability to pay.' Soldano v. Soldano, 258 Md. 145, 146, 265 A.2d 263 (1970). Moreover, the issue is not the ability to pay at the time the payments were originally ordered; instead, the issue is his present ability to pay. As stated in Johnson v. Johnson, supra, 241 Md. at 419-420:

   'If the father was unable to meet his obligation because he had neither a sufficient estate nor the then ability to pay, as the record seems to indicate, the court was not justified in incarcerating him.'

   * * *
 
See McDaniel v. McDaniel, supra, 256 Md. at 692-693; Speckler v. Speckler, 256 Md. 635, 637, 261 A.2d 466 (1970); Schwartzman v. Schwartzman, 204 Md. 125, 135, 102 A.2d 810 [*357] (1954); Oles Envelope Corp. v. Oles, 193 Md. 79, 92, 65 A.2d 899 (1949); Dickey v. Dickey, 154 Md. 675, 681, 141 A. 387, 58 A.L.R. 634[***16] (1928). See also Chase v. Chase, 287 Md. 472, 474, 484-486, 413 A.2d 208, 209, 214-215 (1980) (dissenting opinion)."
 
We further emphasized in Elzey that a defendant's failure to comply with a support order at some time in the past when he had the ability to comply, even if such previous noncompliance was in bad faith, does not justify incarceration for civil contempt if there is a present financial inability to comply.  291 Md. at 375-376.

   The Elzey opinion, and the prior Maryland cases there cited, are dispositive here.  In both the Katzenberger case and the Rutherford case the trial judges found that the defendants lacked a present ability to comply with the support orders.  These findings were compelled by the uncontradicted evidence.  Moreover in Katzenberger, where the purging provision did not require that the defendant pay the entire arrearage at once (although it did require that he make the full current payments plus weekly payments toward the arrearage), [**234] no finding was made that the defendant had the present ability to comply with the purging provision.  In addition, the evidence would not have supported such a finding if it had[***17] been made.  Consequently, both contempt orders were inconsistent with the principles set forth in Elzey and other cases.

   B. The Right To Counsel

   The Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights guarantee a right to counsel, including appointed counsel for an indigent, in a criminal case involving incarceration. Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Utt v. State, 293 Md. 271, 274-275, 443 A.2d 582 (1982); Williams v. State, 292 Md. 201, 217-218, [*358]438 A.2d 1301 (1981); Thompson v. State, 284 Md. 113, 122-123, 394 A.2d 1190 (1978); Baldwin v. State, 51 Md.App. 538, 548, 556, 444 A.2d 1058 (1982). The right extends to every "critical stage" of the criminal proceedings. Utt v. State, supra, 293 Md. at 275-279. Because the present contempt proceedings were civil and not criminal, however, the right to counsel under the Sixth Amendment and Article 21 is not directly involved in these cases.

   Nevertheless, [***18] the constitutional right to counsel is broader than the specific guarantee of the Sixth Amendment and Article 21 of the Declaration of Rights.  Under certain circumstances, the requirements of due process include a right to counsel, with appointed counsel for indigents, in civil cases or other proceedings not constituting critical stages of criminal trials.  Lassiter v. Department of Social Services, 452 U.S. 18, 25-31, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981); Vitek v. Jones, 445 U.S. 480, 496-499, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980); Gagnon v. Scarpelli, 411 U.S. 778, 789-791, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); In re Gault, 387 U.S. 1, 34-41, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); State v. Bryan, 284 Md. 152, 159 n. 6, 395 A.2d 475 (1978); Dorsey v. Solomon, 604 F.2d 271, 275 (4th Cir. 1979); Johnson v. Solomon, 484 F.Supp. 278, 291-295 (D.Md. 1979). Thus in In re Gault, supra, the Supreme Court held that as a matter of due process, the right to the assistance of counsel attached to civil juvenile delinquency proceedings because of "the awesome prospect of incarceration in a state institution," 387 U.S. at 36-37.
 
   In light of Gault and similar[***19] cases, the overwhelming majority of courts throughout the country have held that due process requires the appointment of counsel for indigents in civil contempt proceedings if they are sentenced to imprisonment. As pointed out by the United States Court of Appeals for the Eighth Circuit in United States v. Anderson, 553 F.2d 1154, 1156 (8th Cir. 1977),
 
"[d]eprivation of liberty has the same effect on the confined person regardless of whether the proceeding is civil or criminal in nature.  We agree with [*359]the decisions . . . and hold that the Constitution requires that counsel be appointed for indigent persons who may be confined pursuant to a finding of civil contempt."
 
The same reasoning has been employed in the other cases holding that the right to appointed counsel for an indigent attaches in a civil contempt proceeding involving incarceration: In re Di Bella, 518 F.2d 955, 959 (2d Cir. 1975) ("the burden of imprisonment is just as great, regardless of what we call the order that imposed it"); Otton v. Zaborac, 525 P.2d 537, 539 (Alaska 1974) ("deprivation of liberty in nonsupport contempt proceedings is as serious a matter as the restraint[***20] of liberty . . . in criminal, juvenile, and criminal contempt proceedings"); People v. Lucero, 584 P.2d 1208, 1214 (Colo. 1978) ("Labeling the contempt civil and conditioning the incarceration on a continued refusal to [comply] . . . does not alter the burden of imprisonment [**235]"); Tetro v. Tetro, 86 Wash.2d 252, 544 P.2d 17, 19 (1975) ("The grim reality of a . . . jail sentence overshadows the technical distinctions between 'criminal,' 'quasi-criminal,' and 'civil' violations and demands that the protection of legal advice and advocacy be given all persons faced with it").

   Other cases taking the position that the right to counsel, including appointed counsel for indigents, attaches in civil contempt proceedings involving actual incarceration, are In re Rosahn, 671 F.2d 690, 697 (2d Cir. 1982); In re Kilgo, 484 F.2d 1215, 1221 (4th Cir. 1973); Henkel v. Bradshaw, 483 F.2d 1386, 1389-1390 (9th Cir. 1973); United States v. Sun Kung Kang, 468 F.2d 1368, 1369 (9th Cir. 1972); Mastin v. Fellerhoff, 526 F.Supp. 969, 972-973 (S.D. Ohio 1981); Young v. Whitworth, 522 F.Supp. 759, 762-764 (S.D. Ohio 1981); P.R. v. District Court, Etc., 637 P.2d[***21] 346, 350 (Colo. 1981); Padilla v. Padilla, 645 P.2d 1327 (Colo.App. 1982); McNabb v. Osmundson, 315 N.W.2d 9 (Iowa 1982); Meyer v. Meyer, 414 A.2d 236, 239 (Me. 1980) (holding of intermediate appellate court which was not challenged in Supreme Court); In Interest of Holmes, 355 So.2d 677, 679 (Miss. 1978); Kissel v. Kissel, 59 A.D.2d 1036, 399 N.Y.S.2d [*360] 781 (1977); Hickland v. Hickland, 56 A.D.2d 978, 393 N.Y.S.2d 192 (1977); Rudd v. Rudd, 45 A.D.2d 22, 356 N.Y.S.2d 136 (1974); Jennings v. Jennings, 42 A.D.2d 568, 344 N.Y.S.2d 93 (1973); State ex rel. Spencer v. Howe, 281 Or. 599, 576 P.2d 4 (1978); Commonwealth ex rel. Brown v. Hendrick, 220 Pa.Super 225, 283 A.2d 722 (1971); Ex parte Hiester, 572 S.W.2d 300, 302-303 (Tex.S.Ct. 1978); Smoot v. Dingess, 236 S.E.2d 468, 471 (W.Va. 1977); Ferris v. State ex rel. Maass, 75 Wis.2d 542, 249 N.W.2d 789 (1977); Brotzman v. Brotzman, 91 Wis.2d 335, 283 N.W.2d 600 (Wis.App. 1979).

   A minority rule was set forth by the Supreme Court of Michigan in Sword v. Sword, 399 Mich. 367, 249 N.W.2d 88 (1976). The court in that case held that in a civil contempt proceeding based on[***22] the failure to comply with a support order there was a right to appointed counsel for an indigent only when "special circumstances" were present but that "as a general rule" there was no constitutional right to appointed counsel. But later, in People v. David Johnson , 407 Mich. 134, 283 N.W.2d 632 (1979), the same court held that there was a due process right to appointed counsel for an indigent in a civil contempt case based upon failure to comply with an order to testify.  The court briefly distinguished Sword because of different "factors" in the two cases, 407 Mich. at 152. n5

n5 The Supreme Court of North Carolina followed the Sword holding in Jolly v. Wright, 300 N.C. 83, 92, 265 S.E.2d 135 (1980). But cf. Wake County, ex. rel. Carrington v. Townes, 306 N.C. 333, 293 S.E.2d 95, 97 (1982), cert. denied,    U.S.   , 103 S.Ct. 745, 74 L.Ed.2d 965 (1983). The Sword case was also followed in State ex rel. Dept. of Human Services v. Rael, 97 N.M. 640, 642 P.2d 1099, 1103 (1982), although the court there "recognize[d] that there may be cases in which the defendant would be deprived of a fundamentally fair contempt hearing if assistance of counsel were not provided." 642 P.2d at 1103-1104. See also Duval v. Duval, 114 N.H. 442, 427, 322 A.2d 1, 4 (1974) (discussion of the issue, although not involving a proceeding directly culminating in an order of actual incarceration, and the court "was unable to determine whether counsel should have been appointed in these proceedings"); Andrews v. Walton, 428 So.2d 663 (Fla.S.Ct. 1983).

[***23]

   We believe that the majority view is sound.  A defendant's actual incarceration in a jail, as a result of a proceeding at [*361] which he was unrepresented by counsel and did not knowingly and intelligently waive the right to counsel, is fundamentally unfair.  As repeatedly pointed out in criminal and civil cases, it is the fact of incarceration, and not the label placed upon the proceeding, which requires the appointment of counsel for indigents. With regard to the minority "special circumstances" rule set forth in the Sword case, very often the "special circumstances" requiring the assistance of counsel are not apparent until the defendant is represented by counsel.  Moreover, the deprivation of liberty is itself a "special circumstance" requiring the assistance of counsel. Cf. Gideon v. Wainwright, [**236] supra, 372 U.S. at 351 (concurring opinion of Justice Harlan).  See also Scott v. Illinois, supra, 440 U.S. at 373 ("that actual imprisonment is a penalty different in kind . . . is eminently sound and warrants adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel").

   The recent opinion of the United[***24] States Supreme Court in Lassiter v. Department of Social Services, supra, 452 U.S. 18, confirms the correctness of the majority view that an indigent has a due process right to appointed counsel in a civil contempt case involving actual incarceration. Although Lassiter involved a civil paternity action and not a civil contempt action, the Court set forth principles governing the federal constitutional right to counsel in civil cases.  The Court initially stated in Lassiter that "[t]he pre-eminent generalization that emerges from this Court's precedents on an indigent's right to appointed counsel is that" the existence of the right depends upon whether "the litigant may lose his physical liberty if he loses the litigation." 452 U.S. at 25. After citing the leading criminal cases concerning the right to counsel, the Court went on (id. at 25-26):

   "That it is the defendant's interest in personal freedom, and not simply the special Sixth and Fourteenth Amendments right to counsel in criminal cases, which triggers the right to appointed counsel is demonstrated by the Court's announcement [*362] in In re Gault, 387 U.S. 1, that 'the Due Process Clause of the[***25] Fourteenth Amendment requires that in respect of proceedings to determine the delinquency which may result in commitment to an institution in which the juvenile's freedom is curtailed,' the juvenile has a right to appointed counsel even though those proceedings may be styled 'civil' and not 'criminal.' Id., at 41 (emphasis added).  Similarly, four of the five Justices who reached the merits in Vitek v. Jones, 445 U.S. 480, concluded that an indigent prisoner is entitled to appointed counsel before being involuntarily transferred for treatment to a state mental hospital.  The fifth Justice differed from the other four only in declining to exclude the 'possibility that the required assistance may be rendered by competent laymen in some cases.' Id., at 500 (separate opinion of Powell, J.)."
 
Later the Court summarized (id. at 26-27):

   "In sum, the Court's precedents speak with one voice about what 'fundamental fairness' has meant when the Court has considered the right to appointed counsel, and we thus draw from them the presumption that an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty.  It[***26] is against this presumption that all the other elements in the due process decision must be measured."
 
Finally, after stating that there is a presumption against a due process right to appointed counsel "in the absence of at least a potential deprivation of physical liberty," the Supreme Court suggested that this presumption could be rebutted and that, even in the absence of incarceration, due process may require the appointment of counsel in civil cases under some circumstances.  Id. at 27-32.  The Lassiter case thus indicates that the federal due process standard governing the appointment of counsel for indigents in civil [*363] cases is, generally, the presence or absence of actual incarceration.

   The two cases before us illustrate the need for counsel in cases of this nature.  As pointed out in Part II A of this opinion, neither defendant should have been incarcerated in light of this Court's opinions in Elzey v. Elzey, supra; McDaniel v. McDaniel, supra; Johnson v. Johnson, supra; and similar opinions.  These authorities were not called to the attention of the trial judges at the hearings leading to the orders of incarceration in the cases at bar.  The[***27] [**237] non-lawyer defendants in the instant cases could not have been expected to be familiar with this Court's prior opinions concerning civil contempt for failure to comply with support orders, but competent counsel representing defendants in this area of law should be familiar with such opinions.  If the defendants Katzenberger and Rutherford had been represented by the Public Defender's Office at the circuit court hearings, it is doubtful that they would have been sentenced to imprisonment.

   Therefore, under the Due Process Clause of the Fourteenth Amendment and Article 24 of the Maryland Declaration of Rights, an indigent defendant in a civil contempt proceeding cannot be sentenced to incarceration unless he has been afforded the right to appointed counsel. This does not mean that a constitutional right to appointed counsel attaches in every civil contempt proceeding involving an indigent defendant.  Rather, we hold only that, under the due process requirements of the federal and state constitutions, an indigent defendant in a civil contempt proceeding cannot be sentenced to actual incarceration unless counsel has been appointed to represent him or he has waived the right[***28] to counsel. n6 Cf. Scott v. Illinois, supra, 440 U.S. at 373-374.

n6 Appointments of counsel will be made in accordance with the Public Defender Act, Maryland Code (1957, 1976 Repl. Vol.), Art. 27A, §§ 1-14. Although the issue is noted in the defendants' briefs, no argument has been made that, independently of due process requirements, the Public Defender Act itself, in § 4, affords the right to appointed counsel in cases such as this.  We do not consider in these cases whether there exists such statutory right and, if so, the extent of the right.

   Chief Judge Murphy's concurring opinion in this case, which agrees that the judgments must be reversed for the reasons set forth in Part II A of this opinion, takes the position that the constitutional right to counsel issue should not be reached in light of the general rule that courts do not decide constitutional questions unnecessarily.  We continue to adhere to the principle that "[o]rdinarily courts do not pass upon a constitutional question . . . if there is also present some other ground upon which to dispose of the case," Employ. Sec. v. Balto. Lutheran H.S., 291 Md. 750, 754 n. 2, 436 A.2d 481 (1981) (emphasis added).  As indicated by the above-quoted language, this rule is not absolute.  It reflects a policy of "judicial restraint" (Caplan Bros. v. Village of Cross Keys, 277 Md. 41, 45, 353 A.2d 237 (1976)) or a "general practice of this Court" (State v. Insley, 64 Md. 28, 30, 20 A. 1031 (1885)). Like other such general rules, it is not without exceptions.  See United States v. Raines, 362 U.S. 17, 24, 80 S.Ct. 519, 524, 4 L.Ed.2d 524 (1960), and cases there cited in n. 5.  For several years the question of whether due process requires the appointment of counsel in cases like the instant ones has been a recurring matter in Maryland trial courts.  See, e.g., Chase v. Chase, supra. The question has been of major concern to the trial judges of this State.  Under our statutory mandate to issue a writ of certiorari if review by this Court "is desirable and in the public interest," Code (1974, 1980 Repl. Vol.), § 12-203 of the Courts and Judicial Proceedings Article, we issued a writ of certiorari solely for the purpose of deciding the recurring constitutional right to counsel issue.  In light of this Court's recent decision in Elzey v. Elzey, 291 Md. 369, 435 A.2d 445 (1981), the non-constitutional issue discussed in Part II A would not, by itself, have justified the issuance of a writ of certiorari prior to a decision by the Court of Special Appeals.

[***29]

   [*364] C. The Order In The Rutherford Case

   As previously mentioned, the defendant Rutherford makes a third argument that the trial court erred in finding him in contempt for failing to comply with a court order at a time when the order did not exist.

   Incarceration for contempt to enforce a child support provision of a separation agreement is permissible once the contractual provision is incorporated into a court decree. Cf., Brown v. Brown, 287 Md. 273, 275, 282, 412 A.2d 396 (1980). "Contempt proceedings, therefore, are now an appropriate means for enforcing the support payments, after the agreement has been approved by a decree," Eigenbrode v. Eigenbrode, 36 Md. App. 557, 560, 373 A.2d 1306 (1977) (emphasis supplied).  The contempt is the refusal to comply with the court order, and not merely the breach of the prior support agreement.  Brown v. Brown, supra, 287 Md. at 286-287.

   [**238] The circuit court in the Rutherford case clearly based its contempt finding upon the defendant's failure to make support [*365] payments in February and "early" March 1982.  Although the separation agreement was in effect at this time, the first court order[***30] requiring support payments was the divorce decree of March 23, 1982.  Mr. Rutherford's breach of the separation agreement in February and early March could not properly constitute contempt of the court's March 23rd order.

   Judgments of the Circuit Court for Anne Arundel County reversed.

   Appellees to pay costs.

CONCURBY: MURPHY (In Part)

DISSENTBY: MURPHY (In Part)

DISSENT:  
Murphy, C.J., concurring in part and dissenting in part:

   I fully agree with Part II A of the Court's opinion that in these civil contempt cases incarceration of the contemnors was patently illegal under Elzey v. Elzey, 291 Md. 369, 435 A.2d 445 (1981), since the evidence plainly disclosed that the defendants lacked the present financial ability to comply with the support orders.  As the majority opinion states, Elzey is wholly dispositive of both cases and mandates that the orders of the trial courts directing the confinement of the defendants must be reversed.

   Because it is completely unnecessary to go beyond Elzey in disposing of these cases, I dissent from Part II B of the Court's opinion which advances an alternative constitutional ground for reversal of the trial courts' orders, namely, that[***31] "under the Due Process Clause of the Fourteenth Amendment and Article 24 of the Maryland Declaration of Rights, an indigent defendant in a civil contempt proceeding cannot be incarcerated unless he has been afforded the right to appointed counsel." While I have no quarrel with a policy that would require the appointment of counsel for an indigent as a prerequisite to actual incarceration for violation of a support order, it is by no means clear-cut that the State and Federal Constitutions compel that result in all such cases, regardless of the circumstances.  The due process right of indigents to appointed counsel in civil cases involving an actual loss of liberty is not [*366] absolute but depends upon a balancing of interests, i.e., the private interests at stake, the government's interest, and the risk that the procedures used will lead to an erroneous decision.  See Lassiter v. Department of Social Services, 452 U.S. 18, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981); Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). In other words, since due process is a flexible concept, a case-by-case evaluation is necessary to determine whether fundamental[***32] fairness requires the appointment of counsel in a case where an indigent contemnor is incarcerated for failure to satisfy a support order. Some courts have so held. See, e.g., Duval v. Duval, 114 N.H. 422, 322 A.2d 1 (1974); State ex rel. Dept. of Human Services v. Rael, 642 P.2d 1099 (N.M. 1982). In a similar vein, the Supreme Court has held that there is no inflexible constitutional rule granting an absolute right to counsel in cases involving indigents in parole and probation revocation hearings where incarceration actually resulted.  See Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973).

   A number of the cases relied upon by the majority in support of its unnecessary constitutional analysis involve contempt of court orders, other than civil nonsupport orders, where legal issues of some complexity were involved in defending against the contempt citation.  Unlike those cases, the only issue in cases of civil contempt of a nonsupport order is whether the respondent has the present financial ability to make the required payment; if not, Elzey flatly prohibits incarceration, a legal principle now well grounded in the law of this State.  In[***33] any event, that counsel would be required in all such cases to satisfy the demands of due process under the Lassiter and Eldridge balancing of interests tests is, to me at least, far from clear.

   It is, therefore, inexplicable to me that the majority would in this case violate the Court's "established policy of not deciding [**239] constitutional questions unless necessary." Town of Forest Heights v. Frank, 291 Md. 331, 336, 435 A.2d 425, 428 (1981). Cases in support of this time-honored and fundamental proposition are, of course, legion.  See, e.g., [*367] Avara v. Baltimore News American, 292 Md. 543, 554 n. 7, 440 A.2d 368, 373 n. 7 (1982); Employ. Sec. v. Balto. Lutheran H. S., 291 Md. 750, 754 n. 2, 436 A.2d 481, 484 n. 2 (1981); Temoney v. State, 290 Md. 251, 259 n. 6, 429 A.2d 1018, 1022 n. 6 (1981); Scott v. State, 289 Md. 647, 651, 426 A.2d 923, 926 (1981); Simms v. State, 288 Md. 712, 725, 421 A.2d 957, 964 (1980); Kent v. State, 287 Md. 389, 393, 412 A.2d 1236, 1238 (1980); Hillard v. State, 286 Md. 145, 150 n. 1, 406 A.2d 415, 418 n. 1 (1979); State v. Raithel, 285 Md. 478, 484, 404 A.2d 264, 267 (1979); State v. Friedman[***34] , 283 Md. 701, 708 n. 5, 393 A.2d 1356, 1360 n. 5 (1978); Comm'r of Labor & Ind. v. Fitzwater, 280 Md. 14, 19, 371 A.2d 137, 140 (1977); Caplan Bros. v. Village of Cross Keys, 277 Md. 41, 45-46, 353 A.2d 237, 240 (1976); Prince George's Co. v. Laurel, 262 Md. 171, 187, 277 A.2d 262, 270 (1971); Tyler v. State, 93 Md. 309, 314, 48 A. 840, 842 (1901); State v. Insley, 64 Md. 28, 30, 20 A. 1031 (1885).

   As I would rest the reversal in these cases exclusively on the Elzey nonconstitutional ground, I do not join in Part II B of the majority opinion. 

CAROL L. WILLIAMS et al. v. WILLIAM T. BURNETT & CO., INC.et al. 
No. 2, September Term, 1982
 
Court of Appeals of Maryland
 
296 Md. 214; 462 A.2d 66; 1983 Md. LEXIS 247

 June  28, 1983, Decided

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals.  Circuit Court for  Anne Arundel  County, Turk, J.

DISPOSITION: Judgment of the Court of Special Appeals reversed and 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 the Circuit Court for further proceedings consistent with this opinion.  Respondent to pay costs.

CORE TERMS:  reclassification, rezoning, zoning, ordinance, conform, acre, map, residential, classification, industrial, enacted prior, effective, invalid, effective date, manufacturing plant, industrial zone, reconsideration, retroactively, neighborhood, heavy, foam, ineffective, meaningless, nugatory, county charter, Maryland Rule, assessment district, writ of certiorari, industrial use, entire parcel

COUNSEL: Steven P. Resnick, County Solicitor, with whom were Robert M. Pollock and Karen A. Murphy, Assistant County Solicitors[***3] , and Emile J. Henault, Jr., on the brief, for appellants.

   Warren K. Rich, with whom were Robert C. Prem, Richard E. Rice, Niles, Barton & Wilmer, Theodore G. Bloom and Goodman, Bloom & Cohen, P.A. on the brief, for appellees.

JUDGES: Smith, Eldridge, Cole, Davidson and Rodowsky, JJ., and * J.  Dudley Digges, Associate Judge of the Court of Appeals retired and W. Albert Menchine, Associate Judge of the Court of Special Appeals retired, specially assigned. Eldridge, J., delivered the opinion of the Court.

* Digges, J., participated in the hearing of the case and in the conference in regard to its decision but died prior to the adoption of the opinion by the Court.

 
OPINIONBY: ELDRIDGE

OPINION: [*215] [**66] This controversy arises out of comprehensive rezoning in Anne Arundel County, initiated in 1971 and concluded in 1976. Located within the County's fourth assessment district is a 29.8 acre parcel of land leased by William T. Burnett & Co., Inc. (Burnett).  In 1956, this parcel was purchased by Burnett's lessor contingent upon rezoning from agricultural to industrial use. The rezoning occurred in 1956, and the purchase was then consummated.  The property remained[***4] undeveloped until 1972, at which time Burnett completed construction of a foam manufacturing plant on a 9.1 acre portion of the property.

   During the comprehensive rezoning process, and after the construction of the foam manufacturing plant, the County Office of Planning and Zoning and the County Planning Advisory Board submitted recommendations to the County [*216]Council for the zoning [**67] classification of the Burnett property.  The Planning and Zoning Office suggested placing the entire parcel in a heavy industrial zone, and the Planning Advisory Board suggested that the entire parcel be placed in a light industrial zone. Following public hearings, at which residents in the neighborhood of the Burnett property testified, the County Council in 1973 adopted a comprehensive rezoning ordinance for part of the fourth assessment district. This ordinance placed approximately 9.1 acres of the Burnett property, containing the foam manufacturing plant, in a heavy industrial zone and placed the remaining portion, containing approximately 20.7 acres, in an R-1 residential zone. n1

n1 The R-1 classification permits residential development at one dwelling per acre, along with enumerated special exceptions.  Anne Arundel County Code §§ 13.304 and 13.304.1.

[***5]

   In 1978 Burnett, desiring to expand its industrial plant onto the land zoned residential, applied to the County Office of Planning and Zoning to have the 20.7 acre portion rezoned from residential to heavy industrial on the basis of an alleged mistake in the 1973 comprehensive rezoning. On January 4, 1979, the zoning hearing officer denied the reclassification request, and Burnett took an appeal to the Anne Arundel County Board of Appeals.  During the pendency of the appeal to the Board of Appeals, the Anne Arundel County Council passed and the County Executive signed, on May 15, 1979, an amendment to § 2-100 of the Anne Arundel County Code.  The amendment became effective on June 29, 1979.  Section 2-100 (a), as amended by the 1979 ordinance, delineates the criteria to be followed by the County Board of Appeals when making a zoning reclassification decision.  It provides, in pertinent part, as follows (emphasis added):

   "Zoning classifications shall be granted or denied in accordance with appropriate zoning regulations, but no reclassifications shall be granted except on the basis of an affirmative finding that:

    [*217] (1) There was a mistake in the comprehensive rezoning[***6] map, or that the character of the neighborhood has changed to such an extent that the zoning map should be changed; and

   (2) The reclassification conforms to the approved Anne Arundel County General Development Plan in relation to land use, number of dwelling units or type and intensity of nonresidential buildings, and location; and

   (3) Transportation facilities, water and sewerage systems, storm drainage systems, schools and fire suppression facilities adequate, as defined in section 13-133, to serve the uses allowed by reclassification are either existing or programmed for construction; and

   (4) There is compatibility between the uses of the property as reclassified and the surrounding land uses, so as to promote the health, safety and welfare of the present and future inhabitants of the county."
 
Subsections (a)(2), (a)(3) and (a)(4) constitute the material added by the 1979 amendment.  Subsection (a)(2), which is the provision involved in the present case, prohibits a reclassification unless the Board of Appeals finds that the requested reclassification conforms to the County General Development Plan.

   The General Development Plan in existence at the time of the enactment [***7]of § 2-100 (a)(2), and still existing today, was approved and enacted into law on July 18, 1978.  This plan was prepared in consideration of the County's anticipated growth and was not a complete incorporation of the comprehensive zoning classifications. Under the plan, the 20.7 acre portion of Burnett's property was placed in a classification permitting uses greater than those allowed in an R-1 residential classification but not permitting industrial uses.

   Following enactment of § 2-100 (a)(2), the Board of Appeals conducted four separate hearings on Burnett's reclassification petition.  Numerous exhibits were introduced [*218] and a great deal of testimony was taken, including testimony to the effect [**68] that the requested reclassification would not comply with the General Development Plan.  On September 19, 1979, the Board issued an order reversing the hearing officer's decision and granting Burnett's reclassification request.

   In its order, the Board of Appeals found that the County Council had made a mistake in the 1973 comprehensive rezoning when it changed the zoning of a portion of Burnett's property from industrial to residential. The Board of Appeals, however, [***8] found that the requested reclassification would not conform to the General Development Plan.  Nevertheless, it granted the reclassification, stating:
 
"Although industrial zoning of this [Burnett's] property is not consistent with the current General Development Plan . . ., the fact the Board finds the County Council erred in that zoning negates the necessity of conformance with the new plan."
 
It is noteworthy that in finding that the reclassification need not conform to the 1978 General Development Plan, the Board of Appeals made no reference to § 2-100 (a).
 
   Several neighborhood residents who had testified and presented evidence before the Board of Appeals in support of residential zoning for Burnett's 20.7 acre portion, took an appeal from the Board's decision to the Circuit Court for Anne Arundel County.  Initially the circuit court remanded the case to the Board of Appeals, holding that, in light of § 2-100 (a)(2), the Board erred in concluding that a reclassification need not conform to the General Development Plan.

   Burnett, however, filed a timely motion for reconsideration pursuant to Maryland Rule 625, raising three contentions.  First, it argued that §[***9] 2-100 (a)(2) was invalid because it conflicted with the Anne Arundel County Charter. Second, Burnett claimed that even if § 2-100 (a)(2) were valid under the charter, the County Council did not intend that it be applied "retroactively" to a reclassification [*219] based on a "mistake" in comprehensive rezoning made in 1973, prior to the effective date of the statute. Finally, Burnett argued that if § 2-100 (a)(2) were applied to a reclassification decision based on a 1973 mistake in the comprehensive rezoning, such "retroactive" application would violate the federal and state constitutions.  Subsequent to Burnett's motion for reconsideration, Anne Arundel County intervened as a party appellant.

   Thereafter the circuit court held that § 2-100 (a)(2) was not intended to apply "retroactively" to a reclassification decision grounded upon a mistake in comprehensive rezoning which occurred prior to the effective date of that statute.  The court further ruled that the Board of Appeals was warranted in finding a mistake in 1973 by the County Council in rezoning Burnett's 20.7 acre parcel from industrial use to residential use.  Consequently, upon reconsideration, the circuit court[***10] upheld the Board of Appeals' decision.

   Anne Arundel County and the individual opponents of the reclassification appealed to the Court of Special Appeals, and that court affirmed the judgment of the circuit court in an unreported opinion.  The Court of Special Appeals agreed with the trial court, holding that § 2-100 (a)(2) was not intended to be applied "retroactively" to a reclassification based on a mistake in the 1973 comprehensive rezoning. The Court of Special Appeals also held that the trial court properly upheld the Board of Appeals' finding of a mistake in the Council's 1973 comprehensive rezoning.

   Anne Arundel County and the individual opponents petitioned this Court for a writ of certiorari, presenting two issues.  The first issue is whether the County Council intended that § 2-100 (a)(2) apply to a reclassification based on a mistake in a comprehensive rezoning plan enacted prior to § 2-100 (a)(2).  The second issue is whether the trial court and the Court of Special Appeals erred in upholding the decision of the Board of Appeals finding a mistake in the 1973 comprehensive rezoning. No cross-petition for a writ of certiorari was filed by Burnett.

   [*220] [**69] [***11] We granted the petition but in our order limited review to the statutory interpretation question of whether § 2-100 (a)(2) applies to a reclassification based on a mistake in the 1973 comprehensive rezoning. Consequently, the issue of whether the 1973 residential zoning of a portion of Burnett's property constituted a mistake is not before us. n2 Moreover, even though Burnett has argued that § 2-100 (a)(2) is invalid under the county charter and the state and federal constitutions, no question concerning the validity of that statute is now before us.  See Maryland Rule 813 a.

n2 For a discussion of the principles to be applied in determining whether there is a mistake in comprehensive rezoning, see our recent opinion, written by Judge Davidson, in Howard County v. Dorsey, 292 Md. 351, 438 A.2d 1339 (1982).

   In holding that § 2-100 (a)(2) does not apply to a reclassification based on a mistake in a comprehensive rezoning plan enacted prior to § 2-100 (a)(2), both the circuit court and the Court of Special Appeals[***12] relied on the principle of statutory construction that "the presumed intent [of the legislative body] is that statutes operate prospectively," St. Comm'n On Human Rel. v. Amecom Div., 278 Md. 120, 123-124, 360 A.2d 1 (1976). In our view, this reliance by both courts below was misplaced.  Section 2-100 (a)(2) does not change or affect in any way the 1973 comprehensive rezoning ordinance or the status of property under that ordinance. Instead, § 2-100 (a)(2) regulates the action of the Board of Appeals in the administrative reclassification process. It operates solely upon the Board's reclassification decisions, prohibiting reclassifications which do not conform to the Anne Arundel County General Development Plan.  Section 2-100 (a)(2) became effective on June 29, 1979.  A construction of § 2-100 (a)(2) that would make it applicable to reclassifications by the Board prior to June 29, 1979, would violate the principle that statutes should not be construed to operate retroactively. But applying a June 1979 statute to a reclassification on September 19, 1979, is not a retroactive application of the statute.

   [*221] The language of § 2-100 (a) itself discloses that the statute [***13]was intended to be applicable to reclassifications based on mistakes in comprehensive rezoning ordinances enacted prior to June 1979.  Section 2-100 (a)(1) refers to "a mistake in the comprehensive rezoning map" (emphasis added). When § 2-100 (a) was enacted, as well as today, the only comprehensive rezoning map effective in Anne Arundel County was the map adopted during the period ending in 1976.  The reference to "the" comprehensive rezoning map necessarily was to a map enacted prior to June 1979.

   Moreover, to construe § 2-100 (a) as inapplicable to comprehensive rezoning adopted by the County Council prior to June 1979 would render the statute largely nugatory. It is a settled principle that, if reasonably possible, a statute should be construed "so that no word, clause, sentence or phrase shall be rendered surplusage, superfluous, meaningless, or nugatory." Supervisor v. Southgate Harbor, 279 Md. 586, 590, 369 A.2d 1053 (1977). See Holmes v. Crim. Injuries Comp. Bd., 278 Md. 60, 65-66, 359 A.2d 84 (1976); Gillespie v. R & J Constr. Co., 275 Md. 454, 457, 341 A.2d 417 (1975); Prince George's Co. v. White , 275 Md. 314, 319, 340 A.2d 236 (1975), and cases[***14] there cited.  As pointed out above, when § 2-100 (a) was enacted in 1979, and at the present time, the only comprehensive rezoning plan was the plan enacted during the period ending in 1976.  If § 2-100 (a)(2) were construed as inapplicable to a reclassification based on mistake in the 1971-1976 comprehensive rezoning, the provision would have been wholly ineffective when enacted in 1979, and it would be ineffective today.  Under such construction, § 2-100 (a)(2) would remain a meaningless provision until the County Council, sometime in the future, adopted a new comprehensive rezoning plan.  Under settled principles, such a construction should be avoided if possible. n3

n3 Furthermore, the preamble to § 2-100 (a) indicates that the County Council was addressing and correcting an existing problem, and was not just legislating for future comprehensive rezoning plans.  The preamble states in relevant part as follows:
 
"WHEREAS, Interpretations of the 'change or mistake rule' have allowed rezoning, even though the rezoning may not be consistent with public policy; and
 
WHEREAS, There is a need for legislative guidelines upon which to base the granting of rezoning petitions; . . . ."

   * * *

[***15]

   [*222] [**70] We hold, therefore, that § 2-100 (a)(2) was applicable to the Board's reclassification decision concerning the 20.7 acre portion of Burnett's property.  Thus, under § 2-100 (a)(2), a condition for granting the reclassification was that it conform to the General Development Plan.  The Board specifically found that the requested reclassification would not conform to the General Development Plan.  In fact, both before the Board and in the circuit court, Burnett expressly conceded that industrial zoning of the 20.7 acre portion would be inconsistent with the General Development Plan.  Consequently, unless § 2-100 (a)(2) is invalid as argued by Burnett, the decision of the Board of Appeals must be reversed.  Upon remand, the only matter remaining to be decided by the circuit court is whether § 2-100 (a)(2) is invalid under the county charter and the state and federal constitutions.

   Judgment of the Court of Special Appeals reversed and 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 the Circuit Court for further proceedings consistent with this opinion.

   Respondent [***16]  to pay costs. 

ELZA L. KEESLING v. STATE OF MARYLAND 
No. 62, September Term, 1982
 
Court of Appeals of Maryland
 
295 Md. 722; 458 A.2d 435; 1983 Md. LEXIS 224

 April  8, 1983, Decided

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals.  Circuit Court for  Anne Arundel  County, Wolff, J.

DISPOSITION: Judgment of the Court of Special Appeals reversed.  Case remanded to that Court for the entry of a judgment reversing the judgment in favor of the State of Maryland entered by the Circuit Court for Anne Arundel County and remanding the case to the Circuit Court for Anne Arundel County for further proceedings.  Costs to be paid by the State of Maryland.

CORE TERMS:  amended declaration, declaration, false arrest, demurrer, false imprisonment, voluntary dismissal, summary judgment, notice, commandeering, lawsuit, voluntary discontinuance, de novo, Maryland Rule, original declaration, sovereign immunity, substituted, commencement, ending, commandeered, reviewable, venue, interlocutory judgment, voluntarily dismissed, order to avoid, withdraws, applicability, imprisonment, omission, immunity, demurred

COUNSEL: Weldon Leroy Maddox for appellant.

   William J. Kobokovich, Jr., and George L. Huber, Jr., with whom were Stephen H. Sachs, Attorney General, Jeanne D. Hitchcock, [***3]  Assistant Attorney General, and Huber, Lutche & Wilson on the brief, for appellee.

JUDGES: Murphy, C. J., and Smith, Eldridge, Cole, Davidson, Rodowsky and Couch, JJ.  Rodowsky, J., delivered the opinion of the Court.

OPINIONBY: RODOWSKY

OPINION: [*723] [**435] This case involves the two dismissals provision of Md. Rule 541. n1 The plaintiff in this action, Elza L. Keesling (Keesling), appealed [**436] from a summary judgment entered against him by the Circuit Court for Anne Arundel County in favor of the State of Maryland (the State). That judgment was premised on a determination that in each of two, separate, prior lawsuits Keesling had voluntarily dismissed the State within the meaning of Rule 541 c, so that there had been an adjudication on the merits in favor of the State.  Because the second "dismissal" was not a voluntary one, we shall reverse.

n1 Rule 541, "Dismissal -- Voluntary," in relevant part, provides:

   a. By Party.

   Without an order of court a party may dismiss his action, claim, counterclaim, cross-claim or third-party claim as to any other party only:

   1. Before Evidence Taken.

   By filing a notice of dismissal at any time before the introduction of any evidence at the trial or hearing; or

   2. Stipulation.

   By filing a stipulation of dismissal signed by all parties who have appeared in the action.

   b. By Court Order.

   Except as provided in section a hereof voluntary dismissal shall be allowed only upon order of court and upon such terms and conditions as 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 when filed by a party who has previously dismissed in any court of any state or of the United States an action based on or including the same claim.

   . . . .

   e. Application.

   "Dismiss" or "dismissal" includes submission to a voluntary judgment of non pros or nonsuit or other voluntary discontinuance.

[***4]

   [*724] Keesling is suing the State for damages for personal injuries alleged to have been suffered as a result of a highspeed chase on August 1, 1972 which we discussed previously in Keesling v. State, 288 Md. 579, 420 A.2d 261 (1980) (Keesling I).  That appeal resulted in a remand.  There we held that a factual dispute prevented summary judgment for the State on the issue of
 
whether the police negligently commandeered the Keesling vehicle and thereby forced him to participate in the apprehension of persons who had committed a crime and whether the Keesling vehicle was forced to participate in a roadblock. [Id. at 590, 420 A.2d at 267.]
 
We noted that the State had also sought summary judgment on the basis of Rule 541 c.  Because neither the trial court nor the Court of Special Appeals had decided the applicability of Rule 541 c, and because the State had not presented the issue to us in a cross-petition for certiorari under Rule 813, the Rule 541 c issue was not before us on the earlier appeal.  It is now squarely presented.

   The facts involve three lawsuits, each of which was brought in a different court.

   [*725] (Federal Court action)

   Keesling[***5] filed a Complaint in the United States District Court for the District of Maryland on November 6, 1973 based on the August 1, 1972 occurrence.  The defendants included the State.  On May 20, 1974 the federal court, at Keesling's request, dismissed the complaint as to all parties defendant without prejudice.  We shall assume that the federal court action was based on, or included the same claim as that which the State asserts was later again dismissed in the second lawsuit.

   (Baltimore action)

   On July 5, 1974, Keesling filed in the then Superior Court of Baltimore City n2 a two count declaration claiming jointly against the State and others.  Count No. 1 was founded on Md. Code (1957, 1970 Repl. Vol.), Art. 66 1/2, § 9-102. n3 We shall call this the "commandeering" theory of liability.  Count No. 2 was grounded on false arrest-false imprisonment. After preliminary sparring, the State demurred to the entire declaration as particularized.  On May 12, 1975 that demurrer was sustained with leave to amend.

n2 Now the Circuit Court for Baltimore City.

n3 The statute is reproduced in full in Keesling I, 288 Md. at 583-85, 420 A.2d at 263-64. It provides, under certain circumstances, for damages to a citizen who is injured as a consequence of the police having commandeered his motor vehicle to apprehend suspected criminals.

[***6]

   Keesling filed a first amended declaration in the Baltimore action on June 11, 1975.  This amended declaration, while adding some additional parties and dropping one former party, retained all of the other previously sued defendants including the State.  However, the first amended declaration contained only one count based on false arrest and false imprisonment. No allegations of commandeering were made.  The State reasserted its previously raised defense of sovereign immunity and prevailed.  Judgment in favor of the State was entered on the [*726] docket on September 17, 1975.  That same day demurrers filed by the remaining defendants were sustained with leave to amend.

   A second amended declaration in the Baltimore action was filed on October 2, 1975.  Allegations of false arrest and of false imprisonment were presented in separate counts.  The State was not named as a defendant in the second amended declaration. [**437] The new pleading made no reference to either of the prior declarations. It contained the commencement and ending usually found in original declarations, and it included a demand for jury trial.  This second amended declaration furnished the second prong[***7] used by the Circuit Court for Anne Arundel County in its application of the two dismissals rule.

   The Baltimore action moved on against the remaining defendants through a third amended declaration. The action was ultimately stayed by order of court, until the disposition of the third lawsuit described below.

   (Anne Arundel action)

   Keesling instituted an action in the Circuit Court for Anne Arundel County on May 12, 1975, the same day on which the State's demurrer to the original declaration in the Baltimore action was sustained with leave to amend.  The defendants originally named in the Anne Arundel action included the State.  That declaration consisted of one count which asserted the commandeering theory. Thus, when Keesling filed his first amended declaration in the Baltimore action, he was pleading false arrest and false imprisonment against the State in Baltimore, while he was suing the State in the Anne Arundel action on the commandeering theory which had been raised in the original Baltimore declaration but which was not included in the first amended declaration there.

   In the Anne Arundel action, by virtue of a first amended declaration which omitted some of the original[***8] defendants, and as a result of certain determinations by the circuit court, [*727] the sole remaining defendant is the State.  In September 1977 the State moved for summary judgment and argued that (a) the undisputed facts in this case did not give rise to a cause of action under Art. 66 1/2, § 9-102; (b) the State was immune from suit; and (c) the action was barred because of the effect of Rule 541 c.  The trial court's grant of this motion on the first point gave rise to Keesling I.

   After remand under the mandate in Keesling I, the State requested a further hearing on this same motion for summary judgment. The motion was granted on the basis of Rule 541 c, because the court found that Keesling's
 
Second Amended Complaint filed in the Superior Court of Baltimore City . . . dismissed the State . . . as a party defendant [and thereby] constituted a second voluntary dismissal as to the State.  Pursuant to Maryland Rule 541(c) this second dismissal operated as an adjudication upon the merits which now bars Plaintiff's current suit against the State.

   Keesling again appealed to the Court of Special Appeals.  It affirmed with an unreported opinion which adopted[***9] the opinion of the trial court.  We then granted Keesling's application for a writ of certiorari.

   The trial court viewed the effect of Keesling's second amended declaration as governed by the rule that an amended declaration, which makes no reference to the prior declaration, is a pleading de novo.  Ordinarily the new pleading withdraws from the case the prior pleading for which the new pleading is substituted. n4 The trial court [*728] [**438] reasoned that omitting as a defendant in an amended declaration a party who had been sued in the immediately preceding declaration constituted a voluntary discontinuance. n5 That analysis, however, does not properly apply to Keesling's second amended declaration in the Baltimore action.

n4 See Shapiro v. Sherwood, 254 Md. 235, 238, 254 A.2d 357, 359 (1969) ("[W]hen leave is granted to amend a declaration . . . by filing an amended declaration, the original declaration must be regarded as having been withdrawn."); Landay v. Cohn, 220 Md. 24, 27, 150 A.2d 739, 740 (1959) (amended declaration which contains "the usual formal commencement and ending and [which] is complete in itself . . . [is] intended as a substitute for that, or those, which preceded it."); Produce Exchange v. Express Co., 147 Md. 424, 435, 128 A. 403, 407-408 (1925) (amended declaration which contains the usual formal commencement and ending and which is complete within itself is a de novo pleading having the effect of withdrawing previous declaration); Ellinger v. Baltimore City, 90 Md. 696, 699, 45 A. 884, 885 (1900) ("[A]mendment by way of the 'amended declaration' was pleading de novo which withdraws from the case the pleadings for which the new pleading is substituted."); 2 Poe, Pleading and Practice § 189 (Tiffany Ed. 1925).  Any rulings which may have been made with respect to the earlier declarations are not reviewable on appeal.  Compare Landay v. Cohn, supra (rulings on demurrers to first three declarations are not before court on appeal from a demurrer to fourth declaration); Produce Exchange v. Express Co., supra (ruling of lower court sustaining demurrer to original declaration is not open to review when case proceeded on amended declaration); and Ellinger v. Baltimore City, supra; with Baltimore v. Maryland Pavement Co., 130 Md. 454, 459-60, 100 A. 770, 772 (1917) (when plaintiff amends declaration by filing an additional count after a demurrer has been sustained, the amendment is not a pleading de novo, but rather a necessary part of the previous pleading; therefore ruling of court on demurrer is reviewable on appeal).

[***10] 

n5 In this regard the trial court cited Friedman v. Washburn Co., 145 F.2d 715 (7th Cir. 1944). In a prior action the plaintiff there had sued defendants A, B and C and then voluntarily dismissed as to all.  In the later action, involved in the appeal, plaintiff had again sued A, B and C but, by an amended declaration, had dropped B and C as defendants and pursued the claim only against A.  It was argued by A that this constituted an adjudication on the merits in favor of A under Fed. R. Civ. P. 41(a)(1) which, like Md. Rule 541 c, provides in part 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." The Seventh Circuit said that it did "not agree with [A's] contention that the action here taken constitutes a dismissal as to it, even though [B and C] would be protected by the rule from further suit on the same claim." Id. at 719. We express no opinion on the validity of this analysis or on its applicability under Md. Rule 541.

[***11]

   In his first amended declaration Keesling had continued to sue the State by relying on false arrest and false imprisonment. The Baltimore court, on motion by the State, ruled for the State as a matter of law under the doctrine of sovereign immunity. Judgment was entered in favor of the State based on that ruling. n6 Faced with a judgment against him, Keesling could not reiterate his allegations that the State was responsible in damages to him for false imprisonment or false arrest. His recourse was either to [*729] obtain certification of that judgment as final under Md. Rule 605 a or to await the entry of final judgment before seeking a reversal as to the State on appeal or cross-appeal.  Alternatively, Keesling might have applied to the Baltimore court to reconsider its ruling and to strike the interlocutory judgment in the State's favor.  But in any event, it would have been improper for Keesling, in his second amended declaration, to plead directly contrary to the Baltimore court's judgment.  Under these circumstances, the omission of the State as a defendant in the second amended declaration in the Baltimore action was not a voluntary discontinuance. Because it was[***12] not voluntary, it does not trigger the operation of Rule 541 c.

n6 Because there were other parties defendant in the Baltimore action, the judgment there in favor of the State was not a final judgment.  An application by the State in the Baltimore action to certify that judgment as final for immediate appeal was refused.

   In the few decisions which have addressed somewhat analogous problems, it has been held that dismissals by court order, under circumstances presenting a stronger argument for voluntariness than those presented here, did not fall within a two dismissals rule.  Hughes Supply, Inc. v. Friendly City Electric Fixture Co., 338 F.2d 329 (5th Cir. 1964) involved a defendant which in an earlier state court action had moved to dismiss for lack of venue. The plaintiff filed an admission of improper venue, and the state court dismissed the action for that reason.  A second state court action ended by a voluntary notice of dismissal filed by the plaintiff.  In the third action, the federal court refused[***13] to construe the termination of the first lawsuit as a voluntary dismissal under Fed. R. Civ. P. 41 (a) (1).  See also Davis v. Holder, 568 S.W.2d 565 (Mo. App. 1978) (prior dismissal by order of court for want of prosecution is not a voluntary dismissal by plaintiff within Missouri's two dismissals rule).

   [**439] The Circuit Court for Anne Arundel County sought in its opinion to meet the foregoing analysis by stating:
 
While the Plaintiff's deletion of the State might be termed "involuntary" from the point of view that he was foreclosed from pursuing the State on theories of false arrest and false imprisonment, the Plaintiff was not barred from naming the State as a party [*730] defendant based on other alternative legal theories for which the State might not enjoy immunity.
 
In its brief the State suggests that Keesling should have included allegations of commandeering against the State in his second amended declaration in the Baltimore action in order to avoid a second voluntary dismissal under Rule 541 c.  There is no such rule of pleading or practice.  The decision on the immunity issue was preserved for possible appellate review by the interlocutory [***14]judgment adverse to Keesling.  He was not required to plead additional or alternative matters against the State in his next amended declaration in order to avoid abandonment of his position on the false arrest and imprisonment count.  Accordingly, we reverse.

   Judgment of the Court of Special Appeals reversed.

   Case remanded to that Court for the entry of a judgment reversing the judgment in favor of the State of Maryland entered by the Circuit Court for Anne Arundel County and remanding the case to the Circuit Court for Anne Arundel County for further proceedings.

   Costs to be paid by the State of Maryland. 

CARL SNOWDEN v. ANNE ARUNDEL COUNTY, MARYLAND 
No. 92, September Term, 1982
 
Court of Appeals of Maryland
 
295 Md. 429; 456 A.2d 380; 1983 Md. LEXIS 211

 February  23, 1983, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Goudy, J., pursuant to certiorari to the Court of Special Appeals.

DISPOSITION: Judgment affirmed; costs to be paid by appellant.

CORE TERMS:  public purpose, ordinance, duty, reimbursement, expenses incurred, public funds, municipal, departmental, expenditure, charter, empowered, civil action, municipality, challenged ordinance, public safety, indemnifying, defended, successful defense, fire departments, public welfare, authorize, enact, non-public, judgments rendered, police officers, public officers, legal expense, raise money, acceptation, high-risk

COUNSEL: Stephen H. Schwartz, with whom was Alan Hilliard Legum, P.A. on the brief, for appellant.

   Robert C. Wilcox, Assistant County Solicitor, with whom was Steven P. Resnick, County Solicitor, on the brief, for appellee.

   Amicus curiae brief of Anne Arundel County, Lodge No. 70, Fraternal Order of Police, Inc. filed.  Ronald H. Jarashow and Goldsborough, Franch & Collett, P.A. on the brief.

JUDGES: Murphy, C. J., and Smith, Cole, Davidson, Rodowsky and Couch, JJ. Murphy, C. J., delivered the opinion of the Court.

OPINIONBY: MURPHY

OPINION: [*431] [**381] The issue presented in this declaratory [***4]judgment action is whether a charter county is empowered to enact an ordinance authorizing payment to certain of its public safety employees for legal expenses incurred in a successful defense against criminal or departmental misconduct charges.

   I
 
   The challenged ordinance was passed as Bill 201-81 by the Anne Arundel County Council and is codified as Anne Arundel County Code §§ 1-1400 -- 1-1405 (1982). It authorizes the creation of a Criminal Reimbursement Expense Fund to prepay or reimburse legal expenses incurred by sworn paid members of the County police and fire departments, detention center officers, members of volunteer fire departments and of rescue squads, who are charged with a criminal offense or departmental violations arising out of the performance of their duties. To be eligible for payment under the ordinance, an employee must receive a final determination which exonerates him of all criminal or administrative charges. The ordinance permits advance payments for legal expenses, provided the employee posts adequate collateral and signs a note for the amount of the advance, promising to repay the money if not ultimately cleared of the charges.  The County retains the[***5] right to determine the reasonableness of the expenses submitted, subject to an appeal process.

   The appellant Snowden petitioned the Circuit Court for Anne Arundel County to declare the ordinance violative of the County Charter and the law of Maryland. Snowden claimed that the ordinance did not serve a public purpose but rather unconstitutionally authorized the use of public funds for a private purpose. The court (Goudy, J.), after finding that there was no material factual dispute, granted the County's motion for summary judgment; it concluded that the ordinance served a valid public purpose and was therefore a lawful enactment. We granted certiorari prior to consideration by the Court of Special Appeals of Snowden's [*432] appeal to consider the significant issue of public importance which the case presents.

   II

   Snowden contends that Anne Arundel County was not empowered to enact the challenged ordinance because the authorized [**382] expenditures were for a private and not a public purpose. No public purpose is served, he argues, because the ordinance directly benefits a limited class of private individuals -- principally police and fire department personnel -- "despite[***6] the fact that others may also need this service." Snowden further argues that since an employee who has been acquitted of criminal or departmental charges may still be guilty, no public purpose could be served by reimbursing his expenses.  To do so, Snowden maintains, "could make an officer less inclined to exercise proper due care and restraint." He urges that we hold that "[t]here is a greater public benefit in avoiding this ordinance than there is in maintaining it."

   As we noted in Mont. Citizens League v. Greenhalgh, 253 Md. 151, 158, 252 A.2d 242, 245 (1969), "[t]he power of a political subdivision . . . to enact laws depends on the extent to which the General Assembly has delegated to it its legislative powers which 'are plenary, except as limited by constitutional provisions.'" As a charter county formed under the provisions of Article XI-A of the Constitution of Maryland, Anne Arundel County is empowered by the Express Powers Act, Maryland Code (1981 Repl. Vol.), Art. 25A, § 5 (S) "to pass . . . such ordinances as may be deemed expedient in maintaining the peace, good government, health and welfare of the county." This "general welfare" or "general grant of power" [***7] clause has been broadly construed to permit charter counties to legislate beyond the powers expressly enumerated in the Express Powers Act.  As we noted in Greenhalgh, supra, 253 Md. at 160-61:

    "Gratification would not be afforded the purposes of home rule or the reasons which prompted it if the [*433] language of § 5 (S) of Art. 25A were not to be construed as a broad grant of power to legislate on matters not specifically enumerated in Art. 25A and the language of that section clearly indicates that such a construction is sound.  . . .

   ". . . [N]ot only does it empower legislative action designed to carry out, exercise and implement enumerated powers, it goes further to add that power is given 'as well' to ordain for the maintenance of peace, good government, health and welfare of the County."

   We have held that § 5 (S) authorizes a charter county to enact fair housing laws, Greenhalgh, supra, regulate landlord-tenant relations, County Council v. Investors Funding, 270 Md. 403, 312 A.2d 225 (1973), direct the activities of volunteer fire departments which accept county funds, Prince Geo's Co. v. Chillum-Adelphi, 275 Md. 374, 340 A.2d 265 (1975), and[***8] waive sovereign immunity, Bradshaw v. Prince George's County, 284 Md. 294, 396 A.2d 255 (1979).

   Anne Arundel County is authorized to exercise the full extent of its delegated powers.  Section 304 of the County Charter provides:
 
"[T]he County Council shall have and may exercise all legislative powers which, under the Constitution and laws of this State, it would be competent for this Charter specifically to enumerate."
 
Section 305 makes the exercise of the County Council's powers "subject to the express limitations imposed by this Charter and by all applicable provisions of the Constitution and laws of this State." One such limitation upon the County's broad grant of legislative power is the constitutional requirement of Article 15 of the Maryland Declaration of Rights which in effect prohibits the expenditure of county tax revenues for other than a public purpose. n1

n1 Article 15, in pertinent part, provides that
 
"all taxes . . . levied by the State for the support of the general State Government, and by the Counties and by the City of Baltimore for their respective purposes, shall be uniform within each class or subclass of land, improvements on land and personal property which the respective taxing powers may have directed to be subjected to the tax levy; yet fines, duties or taxes may properly and justly be imposed, or laid with a political view for the good government and benefit of the community."

[***9]

   [*434] [**383] In Balto. & E. S. R. R. Co. v. Spring, 80 Md. 510, 31 A. 208 (1895), suit was filed to enjoin a legislatively authorized issuance of bonds by Talbot County.  The proceeds of the bonds were to be applied to payment of debts owed by a bankrupt railroad.  We concluded:
 
"This is a private purpose, and not one of the objects of taxation.  By the Declaration of Rights, Art. 15, as well as by the fundamental maxims of a free government, taxes can only be imposed to raise money for public purposes. 'Taxes are burdens or charges imposed by the Legislature upon persons or property to raise money for public purposes.' Cooley Cont. Lim. 479." Id. at 517, 31 A. at 210.

   Giving content to the "public purpose" requirement has not been a simple task. n2 As we said in Finan v. M. & C. C. of Cumberland, 154 Md. 563, 565, 141 A. 269, (1928), and more recently in Horace Mann League v. Board, 242 Md. 645, 685, 220 A.2d 51, cert. denied, 385 U.S. 97, 87 S. Ct. 317, 17 L. Ed. 2d 195 (1966): "What is a public purpose for which public funds may be expended is not a matter of exact definition; it is almost entirely a matter of general acceptation." In[***10] Frostburg v. Jenkins, 215 Md. 9, 16, 136 A.2d 852 (1957), we discussed Spring and Finan, commenting "that the line of demarcation is not immutable or incapable of adjustment to changing social and economic conditions that are properly of public and governmental concern." We said, 215 Md. at 19:
 
[*435] "The Constitution does not guarantee a static condition of society, or write into our basic law the economic doctrine of laissez-faire.  So long as the legislation has a substantial relation to the public welfare and can fairly be said to serve a public purpose, it is not the courts' function to strike it down, merely because we fear it may lead to unwise or unfortunate results."
 
Frostburg involved a legislative enactment which authorized the use of public funds to finance the construction of buildings to be sold to manufacturing companies.  We there noted the duty of the courts to "determine whether the particular use is within the scope of the constitutional powers," id. at 16; we concluded that the purpose of the expenditure, to encourage industrial development in the city, had "a substantial relation to the public welfare and can fairly be[***11] said to serve a public purpose." Id. at 19.

n2 Defining the "public use" requirement for the proper exercise of the power of eminent domain has caused similar difficulties.  See, e.g., City of Baltimore v. Chertkof, 293 Md. 32, 441 A.2d 1044 (1982); Pr. George's Co. v. Collington, 275 Md. 171, 339 A.2d 278 (1975). Analytically, the two concepts are related, since in each private property is being appropriated for public benefit, and there are parallel dangers that governmental power might be perverted to private benefit.

   Our cases have consistently upheld the propriety of payment of public funds to private institutions or individuals, as long as a public purpose is served thereby.  See, e.g., Reyes v. Prince George's County, 281 Md. 279, 380 A.2d 12 (1977); Wilson v. Board of Co. Comm'rs, 273 Md. 30, 327 A.2d 488 (1974). See also Horace Mann League v. Board, 242 Md. 645, 220 A.2d 51, cert. denied, 385 U.S. 97, 87 S. Ct. 317, 17 L. Ed. 2d 195 (1966); Johns Hopkins Univ. v. Williams [***12] , 199 Md. 382, 86 A.2d 892 (1952). The legislative body is primarily entrusted with ensuring that the public purpose requirement is fulfilled, and the courts have no duty unless and until a perversion of public funds to private purposes is obvious.  Board of Education v. Wheat, 174 Md. 314, 199 A. 628 (1938). A court does not "sit as a 'superlegislature to weigh the wisdom of legislation,'" Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 124, 98 S. Ct. 2207, 57 L. Ed. 2d 91 (1978). As we noted in McBriety v. Baltimore City, 219 Md. 223, 233, 148 A.2d 408 (1959):
 
"A court does not pass upon the wisdom of an ordinance nor approve or disapprove it.  The function of the courts, if and when the question is [*436] raised, is to ascertain whether the ordinance exceeds constitutional limits.  . . . Moreover, the [**384] courts assume that municipal authorities have full knowledge of local conditions and that their determination, in the light of such knowledge, with respect to the necessity and reasonableness of a regulation to promote the public interests, is valid unless the contrary is affirmatively shown."
 
Accord, City of Bowie v. County Comm'rs[***13] , 260 Md. 116, 271 A.2d 657 (1970).

   Valerius v. Newark, 84 N.J. 591, 423 A.2d 988 (1980), involved a municipal ordinance similar to the ordinance challenged in the present case; it authorized reimbursement of legal expenses incurred by police officers who successfully defended against criminal or departmental charges arising out of the performance of their duties. There, as here, it was contended that the ordinance unconstitutionally directed the use of public funds for a private purpose.  The Supreme Court of New Jersey found no merit in the contention.  It held that the enactment served a public purpose, stating that it "relates to an essential function of government . . . [and that the] object sought to be accomplished affects the public welfare and is in the public interest." 423 A.2d at 992. Accord, Roper v. Town of Laurinberg, 90 N.C. 427 (1884); Cullen v. Town of Carthage, 2 N.E. 571 (Ind. 1885). Prepayment or reimbursement of such legal expenses has been justified on the ground that it encourages the recruitment and retention of high-risk public officers by alleviating the potential liability of having to expend personal funds to defend unfounded charges.  [***14] See, e.g., Askew v. Green, Simmons, Green & Hightower, 348 So.2d 1245, 1248 (Fla. Dist. Ct. App. 1977). Since a municipality may be civilly liable for the criminal actions of its officials, reimbursement of the legal expenses incurred by such officials following a successful defense serves to protect the municipal corporation.  City of Montgomery v. Collins, 355 So.2d 1111, 1114-15 (Ala. 1978). It has been held that the policy of reimbursement encourages a "faithful and courageous discharge of duty on the part [*437] of public officers." Curry v. City of Portage, 195 Wis. 35, 217 N.W. 705 (1928). Sonnenberg v. Farmington Township, 39 Mich. App. 446, 197 N.W.2d 853 (1972), also involved the question whether a municipality was empowered to authorize the reimbursement of legal fees incurred by police officers charged with crimes arising out of and in the course of their employment.  The Michigan court, in concluding that the municipality was so empowered, quoted with approval from a Texas case, City of Corsicana v. Babb, 290 S.W. 736, 737 (Tex. Comm. App. 1927), as follows:

   "'Indemnification of a city officer against liability incurred by reason of an act done[***15] by him in the bona fide performance of his official duties is a municipal function.  That expenditures made in indemnifying the officer against such a liability do not constitute a gratuity, but constitute a public expense of the municipality for which city funds may be used, is sustained by the weight of authority in this country.  A city, therefore, is invested with the discretionary power to employ attorneys to defend one of its policemen against a criminal charge founded upon an act done by such officer in the bona fide performance of his official duties.'"
 
The court in Sonneberg also relied on Messmore v. Kracht, 172 Mich. 120, 137 N.W. 549 (1912), which upheld the reimbursement of legal expense incurred by a deputy sheriff in the successful defense of a civil action. The court found no reason to distinguish between civil and criminal legal expense reimbursement; it said:
 
"Indeed, such a distinction would appear both arbitrary and unreasonable.  Where a police officer has successfully defended both civil and criminal charges arising from measures he had taken in the scope of his employment, it would be absurd to limit his possible reimbursement[***16] to the civil action only, where both actions might have had their origins in the same incident." Id. at 448-49, 197 N.W.2d at 854.

   [*438] [**385] There appears to be no valid reason to distinguish between criminal and civil legal defense expenses.  The general rule is that a municipal corporation may indemnify public officials, acting in good faith, for legal expenses incurred in civil suits brought against them for acts committed in the discharge of their duties. In Estes v. City of North Miami Beach, 227 So.2d 33 (Fla. 1969), the city council employed special counsel to defend four councilmen sued individually in a civil action by a losing candidate.  Against a challenge that public funds were being used for a private purpose, the Supreme Court of Florida upheld the expenditure on the ground that the city had an interest which would be affected by the outcome of the proceedings.  See cases cited and discussed in Annot., 130 A.L.R. 736 (1941 and Supplemental Decisions) and 2 C.  Antieau, Municipal Corporation Law § 15A.19 (1982).  Indeed, it is the general rule that a municipal corporation may indemnify public officials for judgments rendered against[***17] them for acts committed in the performance of their duties, either by procuring insurance, see Annot., 71 A.L.R.3d 6 (1976), or by directly indemnifying the public officials for such civil judgments, see Annot., 71 A.L.R.3d 90 (1976). In City of Chattanooga v. Harris, 223 Tenn. 51, 442 S.W.2d 602 (1969), a statute indemnifying fire and police employees against judgments rendered in suits arising out of the performance of their official duties was upheld by the Supreme Court of Tennessee on the ground that such reimbursement could be considered part of the employees' compensation, thus serving a public purpose. Certainly, the public interest served by reimbursing a high-risk public safety employee for legal expenses incurred in successfully defending against criminal or departmental charges arising out of the performance of his duties is as great as indemnifying a public official who has been adjudged liable for damages in a civil action.

   In this case, the County maintains, and we agree, that the public benefits from the challenged ordinance because its provisions better enable the County to recruit and retain qualified public safety employees, and to maintain morale. [***18]The ordinance affords necessary protection to those [*439] employees who, by the nature of their calling, are uniquely at risk of suffering financial liability as a result of their duties. The ordinance provides reimbursement only to one who has successfully defended against criminal or administrative charges.  The advance payment provision is no more than a loan, secured by collateral and formalized in a confessed judgment note, requiring reimbursement in the event the employee is not successful in his defense.  In Bradshaw v. Prince George's County, 284 Md. 294, 304, 396 A.2d 255, 261-62 (1979), we noted:
 
"[A] public purpose is served by protecting officials when they act in an exercise of their discretion.  See Duncan v. Koustenis, 260 Md. 98, 271 A.2d 547 (1970); Arrington v. Moore, 31 Md. App. 448, 358 A.2d 909 (1976). Particularly in the case of law enforcement officers, the exercise of discretion may call for 'decisiveness and precipitous action' in response to crises.  Arrington, id. at 464."

   Consistent with the principles expressed in our decisions and in the cases in other jurisdictions, we find, as a matter of general acceptation, that [***19]the challenged ordinance can fairly be said to serve a public purpose. n3

n3 Several early New York cases, upon which Snowden relies, appear to hold that a statute similar to the ordinance in this case does not serve a public purpose in that reimbursement of legal expenses constitutes a "gift" to the individual.  See, e.g., Chapman v. City of New York, 168 N.Y. 80, 61 N.E. 108 (1901). These cases are plainly out of the mainstream of authority and we decline to follow them.  A later New York case, Gavin v. Board of Sup'rs, 221 N.Y. 222, 116 N.E. 996 (1917), holds that such statutes do serve a public purpose if their application is a purely prospective one.

   Judgment affirmed; costs to be paid by appellant. 

DONNIE DORSEY and ROSCOE DORSEY v. STATE OF MARYLAND 
No. 47, September Term, 1982
 
Court of Appeals of Maryland
 
295 Md. 217; 454 A.2d 353; 1983 Md. LEXIS 194

 January  10, 1983, Decided

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals.  Circuit Court for  Anne Arundel  County, Lerner, J.

DISPOSITION: Judgment affirmed; appellants to pay the costs.

CORE TERMS:  contempt, direct contempt, constructive contempt, Rule P3, courtroom, noise, Rule P4, cell, interrupted, interrupt, prisoners, constructive, summarily, notice, summary proceedings, insufficient evidence, deputy sheriff, contemptuous, conversation, disrupted, adjacent, punished, nullity, loud, reasonable opportunity, power to punish, classification, fundamental jurisdiction, sufficient evidence, order of contempt

COUNSEL: Gary W. Christopher, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellants.

   Stephen Rosenbaum, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellee.

JUDGES: Murphy, C. J., and Smith, [***3] Eldridge, Cole, Davidson, Rodowsky and Couch, JJ.  Smith, J., delivered the opinion of the Court.

OPINIONBY: SMITH

OPINION: [*218] [**354] In this case petitioners Donnie Dorsey and Roscoe Dorsey contend that a trial court afforded them more due process of law than they believe they were entitled to receive in a contempt matter and hence that the court was deprived of jurisdiction, making their convictions nullities. We shall reject their contentions, including claims that there was insufficient evidence to conclude that court proceedings were disrupted and that they were responsible for any part of the disturbance.

   I The case

   Maryland Rule P4 concerns constructive contempt. It provides that such proceedings "may be instituted by the court of its own motion, by the State's attorney or by any person having actual knowledge of the alleged contempt." Provision is then made for notice to the defendant.  That notice is to include the show cause order and any written statement filed in support of the alleged contempt. Provision is made for the appointment of a prosecutor ("the State's attorney or any other member of the bar") and that the judge who issues the citation shall be disqualified[***4] from presiding at the hearing "except where such contempt consists of failure to obey an order or judgment in a civil case" unless the "defendant otherwise consents . . . ." See Harford Co. Educ. Ass'n v. [*219] Board, 281 Md. 574, 380 A.2d 1041 (1977), for an application of the rule.

   The two Dorseys and others were being tried on escape charges in the Circuit Court for Anne Arundel County.  While awaiting the call of their individual cases for trial they were placed in a confining cell immediately adjacent to the courtroom. About two weeks later Judge E. Mackall Childs, [**355] who presided in the escape cases, filed an order which recited that on February 20, 1980, while he was attempting to try escape cases in the Circuit Court for Anne Arundel County, these individuals were being held in a cell adjacent to the courtroom in which the cases were being tried; that "the noise emanating from the cell in which said individuals were being held was of such volume as to directly interfere with the orderly business of the court"; that "warnings were issued to the inmates of the cell on repeated occasions, but were disregarded by said inmates who became so unruly as to necessitate[***5] their removal to the Sheriff's department in the basement of the courthouse"; and that "the business of th[e] court was unnecessarily interrupted and delayed by the conduct of [these] persons." These persons were directed pursuant to the provisions of Rule P4 b (1) to show cause why they should not be held in contempt. The order of Judge Childs referred to the affidavit of an assistant State's attorney which was attached.  That affidavit is consistent with the facts as we shall recite them gleaned from the testimony.  The order designated the State's Attorney for Anne Arundel County to prosecute the contempt action.

   When the matter was called for hearing before Judge Childs the State asked to amend the order, stating:
 
"[T]hey were charged under Rule P4. However, all the evidence seems to indicate that what was involved was a direct interference and the State would ask the Court to change its Order to Rule P3, which is direct contempt."
 
The request for amendment was granted.

   [*220] Rule P3 deals with direct contempt. It provides that such a contempt "may be punished summarily by the court against which the contempt was committed." Rule P3 b states: [***6] 

   "Where a direct contempt is committed, the court shall sign a written order to that effect.  The order shall recite the facts, be signed by the judge and entered of record.  The order shall state which of the facts were known to the court of its own knowledge and as to any facts not so known, the basis for the court's finding with respect thereto."
 
Rule P3 c goes on to provide:

    "The record in such cases shall consist of

   (1) such order of contempt,

   (2) any affidavit filed by the defendant,

   (3) any affidavit filed by the State's attorney in support of the order of contempt, if the court directed him to investigate or prosecute the contempt, and

   (4) any testimony offered."

   Defense counsel stated:
 
"With regard to the change in the contempt papers, Your Honor, I have only one objection, as we pointed out in our pleadings, with the Court in the motion to recuse and the motion for jury trial, is that once the situation has gone beyond a summary proceeding situation, that is, where the Court has to assert its authority at that moment to maintain the decorum of the Court, that less than summary proceedings, excuse me, more than summary proceedings are required. [***7]And those proceedings are spelled out in Rule P4, which require the Judge to recuse himself and which require the show cause order and such that was complied with here.  And that we could not accept a change in the order which would forego those procedural rights which we are entitled to under that order. So that, I do not know [*221] how you want to do it.  We have no objection with proceeding with this matter.  Call it constructive contempt. Call it direct contempt. But, as the evidence may be adduced to trial.  But we wish to maintain those procedural rights which are obtained through Rule P4."

   In due season the matter came on for trial before a jury with another judge presiding.  The testimony disclosed that during the morning session an assistant State's attorney twice sent word to the guards that noise from the cell was being heard in the courtroom by the presiding judge.  During the afternoon session noise was again [**356] heard.  A request for the prisoners to quiet down was again sent.  The noise level subsided momentarily.  It resumed shortly thereafter.  Judge Childs testified as to what took place:
 
"I couldn't hear the exact words that were being[***8] said.  It was just extremely loud conversation. Ordinary conversation in the bullpen, doesn't disturb the procedures of the courtroom at all.  But the acoustics are, are poor at best and with all the loud conversation that was taking place in the bullpen, it made it extremely difficult for me to hear what counsel and witnesses were saying."
 
The judge then asked a deputy sheriff to tell the guards to quiet the prisoners. The message was relayed to another deputy sheriff who then conveyed to the prisoners the request of the judge for them to be quiet.  The request was not kindly received.  The response was characterized by one individual as "a cheer" and by Judge Childs as a "loud outburst." Donnie Dorsey made an uncomplimentary remark relative to the judge, one not used in polite society.  Roscoe Dorsey said the judge would not be telling him what to do.  Judge Childs described the noise as having disrupted the court proceedings completely, stating that he was obliged to adjourn court.  After the last outburst Judge Childs directed that the prisoners be taken to the lockup in another portion of the building.
 
   [*222] The jury returned a guilty verdict.  The trial judge[***9] sentenced each of the petitioners to a term of three months to run consecutively to any other sentence then being served.  An appeal to the Court of Special Appeals followed.  It affirmed in an unreported opinion.  We granted the petition of the Dorseys for a writ of certiorari.

   To us it is contended that the trial court lacked fundamental jurisdiction and that there was insufficient evidence of direct contempt. We shall first address the issue of sufficiency of the evidence because we would have no need to consider the other contention were there insufficient evidence.

   II Sufficiency of the Evidence

   On this issue the Court of Special Appeals said:

   "Appellants argue that the evidence was insufficient to sustain their convictions of direct contempt because the State failed to establish that they intended to disrupt the proceedings; that they, rather than the other prisoners in the 'bull pen', caused the proceedings to be disrupted, and that they were not warned that if the noise continued, they would be held in contempt. We find no merit to appellants' arguments."
 
It said also:
 
"We also think that the jury could have reasonably inferred from the evidence that[***10] appellants were responsible for, or contributed to, the noise that interrupted the order of the court and its proceedings.  Moreover, even if appellants were not specifically admonished that they would be held in contempt if they did not discontinue the noise, such a warning is not a necessary prerequisite to a finding of direct contempt. See Robinson v. State, 19 Md. App. 20, 28 (1973)."
 
[*223] We adopt that opinion.

   III Jurisdiction

   a.

   Petitioners assert that one must first determine whether a contempt is direct or constructive and then one proceeds under the P rules.  Direct and constructive contempts are defined in Rule P1.  A direct contempt is said in Rule P1 a to be one "committed in the presence of the court, or so near to the court as to interrupt its proceedings." Constructive contempt is defined in Rule P1 b as "a contempt which was not committed in the presence of the court, or so near to the court as to interrupt its proceedings." Since the acts allegedly committed by petitioners interrupted the proceedings of the court, an application of these two definitions without interpretation would lead to a finding that the contemptuous acts constituted direct[***11] contempt of court.  Petitioners' arguments are contingent upon an application by the Court of an ironclad rule that only summary action under [**357] Rule P3 is permissible in cases of direct contempt and that the more elaborate procedures which provide more protection for rights of defendants used in constructive contempt may not be utilized.
 
   The petitioners rely upon our holding in State v. Roll and Scholl, 267 Md. 714, 298 A.2d 867 (1973). It is the definitive Maryland case for the classification of contempt as to whether it is civil or criminal and whether it is direct or constructive. In that case Judge Digges said for the Court:

   "We think the content and meaning of the phrase 'in the presence of the court' as used in Rule P1 a and the procedure sanctioned by Rule P3 for conducting a direct contempt proceeding must be framed against a constitutional background.  When this is done, the picture is clear.  A direct contempt occurs when the actions of the contemnor interrupt the order of the courtroom and interfere with the [*224] conduct of business.  When such disruption occurs within the sensory perception of a presiding judge he will have a sufficient knowledge[***12] of the contemptuous act which tends to interrupt the proceedings and will not have to rely on other evidence to establish all the details, though some of them can be supplied by additional testimony.

   "When, as in the case here, the judge does not have personal knowledge of the facts and must learn of them totally from others, direct contempt proceedings are not authorized.  The reason such proceedings are not permitted is that there is no need for summarily disposing of an alleged contempt when the behavior of the accused is not personally known to the judge or does not occur so near to the court as to interrupt proceedings then being conducted by the judge." 267 Md. at 734.

   An analogous case was before the Supreme Court of Mississippi in Ex Parte L.T. Wisdom, 223 Miss. 865, 79 So.2d 523 (1955). In that instance after a trial judge had announced his decision and retired to his chambers a litigant, in the words of the court, "used highly disrespectful and contemptuous language concerning the court in the courtroom and in the presence of the officers of the court." He was immediately brought before the court where the testimony was taken of a deputy sheriff. The accused said[***13] the sheriff had misunderstood him.  No other witnesses were called to testify.  The judge found that the accused "had used vulgar, profane and indecent language toward the court in the presence of officers of the court while in the courtroom, and that [he] had deliberately lied when he denied from the witness stand that he had made the statement alleged to have been made by him." In reversing the contempt conviction the Supreme Court of Mississippi said:
 
"[W]here witnesses are necessary to prove the acts of contempt, although the contempt may have been committed technically 'in the presence of the court,' [*225]but not within the sight or hearing of the presiding judge, we think that notice should be given to the accused, and a reasonable opportunity afforded to him to prepare his defense.  This does not mean that in every case formal charges must be preferred or that the court cannot take prompt action for the punishment of the offender.  But it does mean that the respondent should be given reasonable notice of the charges, by attachment, citation, or otherwise, so that he may know the nature and the cause of the accusation against him, and that he may have a reasonable[***14] opportunity to be heard.  Grace v. State, 108 Miss. 767, 67 So. 212; Ex Parte Redmond, 159 Miss. 449, 132 So. 328. He should have the right and the opportunity to obtain the advice and assistance of counsel, if he desires to do so, the right to call witnesses, and the right to make a record on which an order may be reviewed on appeal." 223 Miss. at 870. 
  
Accord Ex Parte Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405 (1888). In Terry the Court found "instructive" an illustration of direct contempt in an opinion of the Supreme Court of Connecticut, Middlebrook v. State, 43 Conn. 257, 269 (1876), where it was said:
 
"[**358] The judicial eye witnessed the act, the judicial mind comprehended all the circumstances of aggravation, provocation, or mitigation; and the fact being thus judicially established, it only remained for the judicial arm to inflict proper punishment."
 
Cf. Johnson v. Mississippi, 403 U.S. 212, 91 S.Ct. 1778, 29 L.Ed.2d 423 (1971). R. Goldfarb, The Contempt Power 74-75 (1963), states:
 
"It is further suggested that if summary procedures are continually applied to direct contempt cases, these situations should be limited[***15] strictly to acts which are direct in a physical, geographical sense, [*226] so that courts can act upon information which comes to them through their own sensual perception.  Summary treatment should be withheld, at least in cases where commission of the contempt is only inferrible, no matter how directly related it is to the court.  This is a significant distinction, sometimes overlooked by courts in their decisions.  Since the applicability of summary procedures and the dispensation of certain constitutional rights follow the classification of contempt as direct, there is a serious importance in paying strict service to this distinction."

   Judge Childs was right the first time when the citations were initially prepared.  Although the contempt here was in the presence of the court from the standpoint of its being within the hearing of the court and its having actually interrupted the court's proceedings, it was indirect in the sense that the trial judge was not able to immediately identify the culprits.  Testimony on the subject was necessary.  The petitioners here cannot be heard to complain, however, since they have been provided their full panoply of rights, the rights [***16]to which they would have been entitled for an indirect contempt, including a trial by a jury.

   b.

   The petitioners argue that under Roll and Scholl, 267 Md. 714, a court is without power to punish for constructive contempt if it proceeds under Rule P3 for direct contempt and that the reverse is true, that a court is without power in a direct contempt situation to proceed under Rule P4. They misunderstand jurisdiction.

   In Stewart v. State, 287 Md. 524, 526, 413 A.2d 1337 (1980), Judge Digges pointed out for the Court, quoting 1 J. Pomeroy, Equity Jurisprudence §§ 129-31 (5th ed. 1941), and citing First Federated Com. Tr. v. Comm'r, 272 Md. 329, 334, 322 A.2d 539 (1974), that, juridically, jurisdiction refers to two quite distinct concepts: (i) The power of a court to [*227] render a valid final judgment, and (ii) the propriety of granting the relief sought.  He then went on to say, citing First Federated and other cases, that it is only when a court lacks fundamental jurisdiction to render the judgment it did that there is an absence of authority in the court so as to render its judgment a nullity. See also our recent discussion of jurisdiction in[***17] Brodak v. Brodak, 294 Md. 10, 14-17, 447 A.2d 847 (1982), and Cant v. Bartlett, 292 Md. 611, 619, 440 A.2d 388 (1982).

   1 J. Poe, Pleading and Practice § 14 (5th ed. Tiffany 1925), states of our circuit courts:
 
"[T]hese are the highest common law courts of record and original jurisdiction within the State, and each of them has full common-law powers and jurisdiction in all civil and criminal cases within its county, (except where, by law, the jurisdiction has been or may be taken away or conferred upon another tribunal,) and shall also have and exercise in the respective counties all the additional powers and jurisdiction which may hereafter be prescribed by law." Id. at 8 (emphasis in original).
 
Then in § 16 Poe states that these courts "can rightfully exercise all the powers exercised by the Court of King's Bench in England, so far as these powers are derived from the rules and principles of the common law, and are suited to the change of our political institutions, and not modified by our constitutional or statutory enactments."

   [**359] Justice Field opened the opinion for the Court in Ex Parte Robinson, 86 U.S. (19 Wall.) 505, 22[***18] L.Ed. 205 (1873), by stating:

   "The power to punish for contempts is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice.  The moment the courts of the United States were called into existence and invested with [*228] jurisdiction over any subject, they became possessed of this power." 86 U.S. at 510.
 
We said in Cant, 292 Md. at 619, "The fact that in this instance the trial judge erred in his conception of what was authorized does not make the order beyond the jurisdiction of the court." We took occasion there to quote from Brown v. Baer, 291 Md. 377, 435 A.2d 96 (1981), where Judge Eldridge said for the Court relative to an administrative law matter:
 
"[W]e have held that merely because a trial court's order violates a statute or a rule does not render the order beyond the court's jurisdiction and a nullity; instead, it is only subject to reversal on a direct appeal." 291 Md. at 387 (citing cases.)
 
The court here had jurisdiction.  Not only did the trial court have[***19] jurisdiction, but no violation of the rules occurred when, though cited for direct contempt under Rule P3, the trial court proceeded against the Dorseys under Rule P4. Direct contempt, so the rule says, "may be punished summarily . . . ." The rule does not say that direct contempt must be punished summarily.

   IV

   In summary, the contempt here was such that the proper way to proceed was for constructive contempt, proof not within the knowledge of the trial judge having been required; the fact that the Dorseys were charged as for direct contempt but tried under constructive contempt procedures did not deprive the trial court of jurisdiction, it being a court of general trial jurisdiction; and there was sufficient evidence adduced.

   Judgment affirmed; appellants to pay the costs. 

LAURIE ANN HAUCH v. ALAN G. CONNOR et al. 
No. 161, September Term, 1981
 
Court of Appeals of Maryland
 
295 Md. 120; 453 A.2d 1207; 1983 Md. LEXIS 188

 January  4, 1983, Decided

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals.  Circuit Court for  Anne Arundel  County, Thieme, J.

DISPOSITION: Judgment of the Court of Special Appeals affirmed.  Petitioner to pay costs.

CORE TERMS:  workmen's, co-employee, lex loci, compensation law, delicti, choice of law, resident, tort law, collision, compensation statute, public policy, passenger, Maryland Workmen's Compensation Act, fellow employee, forum state, Workmen's Compensation Law, Conflict of Laws, course of employment, giving rise, contracting, workers' compensation, injured employee, foreign state, immunity, tortious, hired, Connecticut Workers' Compensation Act, compensation act, injuries arising, fellow employees

COUNSEL: F. Wainwright Barnes, with whom was Edward J. Gorman, Jr., on the brief, for appellant.

   Eugene I. Glazer for appellees.

JUDGES: Murphy, C. J., and Smith, Eldridge, Cole, Davidson and Rodowsky, JJ. Eldridge, J., delivered the opinion of the Court.

OPINIONBY: ELDRIDGE

OPINION: [*121] [**1208] The Maryland Workmen's Compensation Act permits an employee, suffering a compensable injury because of the negligence of a fellow employee, to bring a personal injury action against[***3] that co-employee. Leonard v. Sav-A-Stop Services, 289 Md. 204, 208, 424 A.2d 336 (1981); Hutzell v. Boyer, 252 Md. 227, 232, 249 A.2d 449 (1969). The Delaware Workmen's Compensation Act, however, prohibits such co-employee actions.  Groves v. Marvel, 59 Del. 73, 213 A.2d 853, 855 (1965). The choice of law question presented in this case is whether Maryland residents, who sustained injuries in an automobile accident in Delaware while temporarily there in furtherance of their employer's business, and who claimed no benefits under the Delaware workmen's compensation law, may maintain in Maryland courts a personal injury action against the co-employee who operated the employer's automobile in which the plaintiffs were passengers.

   The plaintiffs, Alan G. Connor and Carolyn McIntire, and the defendant, Laurie Ann Hauch, are residents of the State of Maryland.  During the relevant period of time, they all were employees of the Hertz Corporation.  The record indicates that the plaintiffs' employment contracts were made in Maryland and that Maryland was their regular place of employment.  On February 6, 1980, the three [*122] employees departed in their employer's automobile[***4] from Baltimore-Washington International Airport, located in Maryland.  They were bound for Dover, Delaware, where they were to pick up rental motor vehicles for Hertz and return them to the airport.  Hauch was driving the automobile, with Connor and McIntire as passengers. While traveling in an easterly direction on a highway in Kent County, Delaware, the automobile in which they were riding collided head-on with another vehicle.  Immediately following the collision the three parties were treated for their injuries in a nearby Delaware hospital. They later received more extensive treatment in Maryland.  Connor and McIntire applied for and were granted benefits under the Maryland workmen's compensation statute. Neither applied for benefits under the Delaware workmen's compensation statute.

   Thereafter, Connor and McIntire brought this action against their co-employee Hauch in the Circuit Court for Anne Arundel County, alleging negligence in the operation of the automobile.  Following a deposition and interrogatories, the defendant Hauch filed a motion for summary judgment, with an accompanying affidavit, taking the position that the Delaware workmen's compensation law applied to[***5] bar the action because the act giving rise to the injuries occurred in Delaware.  In their opposition to the motion, the plaintiffs contended that the Maryland workmen's compensation statute should govern under the facts of the case.  The circuit court granted the motion for summary judgment.  Treating the matter as a question of tort choice of law, the circuit court applied the doctrine of lex loci delicti and held that the bar of the Delaware workmen's compensation statute was applicable.

   Connor and McIntire appealed, and the Court of Special Appeals reversed. Relying [**1209] on public policy grounds, the Court of Special Appeals held that the defendant could not invoke the Delaware workmen's compensation statute to defeat the action.  Connor v. Hauch, 50 Md. App. 217, 225, 437 A.2d 661 (1981).

   [*123] The defendant Hauch then filed a petition for a writ of certiorari which we granted.  In this Court, the defendant argues that the circuit court correctly applied the Delaware workmen's compensation law barring actions between co-employees for injuries arising out of and in the course of employment. She contends that the tort doctrine of lex loci delicti, which [***6]requires a tort action to be governed by the substantive law of the state where the wrong occurred, is dispositive.

   On the other hand, the plaintiffs argue that this Court should abandon the rule of lex loci delicti for determining which state's tort law should govern and that we should adopt the significant contacts test as enunciated in the Restatement (Second) of Conflict of Laws, § 145 (1971). n1 Alternatively, the plaintiffs argue that the Maryland Workmen's Compensation Act governs this case because the legislature intended that employees not be precluded from suing fellow employees under circumstances like those here.

n1 "§ 145.  The General Principle.
 
(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.
 
(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
 
(a) the place where the injury occurred,
 
(b) the place where the conduct causing the injury occurred,
 
(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and
 
(d) the place where the relationship, if any, between the parties is centered.
 
These contacts are to be evaluated according to their relative importance with respect to the particular issue."
 
Restatement (Second) of Conflict of Laws § 145 (1971).

[***7]

   I.

   With regard to tort conflicts principles, we reject the position of the Restatement and adhere to the rule that the substantive tort law of the state where the wrong occurs governs.  The rule of lex loci delicti is well established in Maryland.  When its rationale has been put into question, [*124]"this Court has consistently followed the rule," White v. King, 244 Md. 348, 352, 223 A.2d 763 (1966).

   White involved a suit in Maryland by injured automobile passengers who alleged that their injuries were caused by the negligence of the driver.  The automobile collision giving rise to the injuries occurred in Michigan.  The State of Michigan has a guest passenger statute as part of its tort law, while Maryland does not, and the Court held that the Michigan statute governed. Following a discussion of criticisms and alternatives to the rule of lex loci delicti, the Court stated that it was
 
"not constrain[ed] . . . to find that lex loci delicti should be overruled.

   * * *

    "In what we have said, we do not intend any implication that lex loci delicti is, in general, in our opinion, an unjust rule.  Hardship may result in a particular case, but[***8] that, unfortunately, is true under any general legal principle.  Certainty in the law is not so common that, where it exists, it is to be lightly discarded."
 
White v. King, supra, 244 Md. at 355.

   Since White, we have continued to adhere to the rule of lex loci delicti. Frericks v. General Motors Corp., 274 Md. 288, 336 A.2d 118 (1975), and Frericks v. General Motors Corp., 278 Md. 304, 363 A.2d 460 (1976), are recent reaffirmations of the rule.  The Frericks cases involved a suit by a passenger who alleged that the injuries he sustained in an automobile collision in North Carolina were caused or enhanced by defects [**1210] in the vehicle.  We held that under the rule of lex loci delicti, the product liability principles of North Carolina tort law governed.  Frericks v. General Motors Corp., supra, 274 Md. at 296, and Frericks v. General Motors Corp., supra, 278 Md. at 306, 316-319. Other recent cases in which we have applied the rule of lex loci delicti include Brady v. State Farm Mut. Insur. Co., 254 Md. 598, [*125] 255 A.2d 427 (1969); Cook v. Pryor, 251 Md. 41, 246 A.2d 271 (1968); Harford Mutual v. Bruchey, 248[***9] Md. 669, 238 A.2d 115 (1968); Earl v. Anchor Pontiac, 246 Md. 653, 229 A.2d 412 (1967); Mroz v. Vasold, Jr., 228 Md. 81, 178 A.2d 403 (1962); Doughty v. Prettyman, 219 Md. 83, 148 A.2d 438 (1959).

   In addition to the principle of stare decisis, other reasons support our adherence to the rule of lex loci delicti for determining the applicable tort law. A virtue of the rule, for the courts and all parties concerned, is the predictability and certainty as to which state's tort law will govern.  See White v. King, supra, 244 Md. at 355. Furthermore, lex loci delicti recognizes the legitimate interests which the foreign state has in the incidents of the act giving rise to injury.  Daily v. Somberg, 28 N.J. 372, 380, 146 A.2d 676, 69 A.L.R.2d 1024 (1958). The foreign state's resources in the form of police protection, medical assistance and highway maintenance, to mention a few, are expended whenever an automobile collision occurs within its borders.  Also, when wrongful conduct occurs in a foreign state, it poses a direct threat to persons and property in that state.  It follows that the citizens of the foreign state should be the ones to determine, through[***10] their tort law, whether particular conduct is tortious and the extent of the monetary sanction.

   Consequently, in the instant case all questions concerning substantive tort law are to be governed by the law of Delaware, as it is the state where the collision occurred.

   II.

   Our continued adherence to the rule of lex loci delicti, however, does not end the inquiry in the present case.  Here we are concerned not with differences between Maryland and Delaware tort law, but with differences in the workmen's compensation law of the two states.

   In the prior cases reaffirming and applying lex loci delicti, the applicable foreign law was substantive tort law. As previously mentioned, a guest passenger statute was [*126] involved in White v. King, supra, 244 Md. 348. Such statutes were also involved in Brady v. State Farm Mut. Insur. Co., supra, 254 Md. 598; Cook v. Pryor, supra, 251 Md. 41; and Mroz v. Wasold, Jr., supra, 228 Md. 81. A husband's action for loss of consortium, recognized as a tort in Maryland, n2 was barred in Harford Mutual v. Bruchey, supra, 248 Md. 669, because the tort law of Virginia, where the automobile collision occurred, did not recognize[***11] the cause of action.  As earlier discussed, the Frericks cases, 274 Md. 288, 278 Md. 304, involved an action against an automobile manufacturer, based on alleged defects in an automobile causing so-called "second collision" injuries, and the issue was whether the products liability law of North Carolina recognized such a tort cause of action.  In contrast, the present case concerns Delaware workmen's compensation law completely barring the "courthouse door" to employees for any and all causes of action they may have against co-employees for injuries sustained in the course of employment, and Maryland workmen's compensation law which does not impose such a threshold bar.

n2 Deems v. Western Maryland Ry., 247 Md. 95, 231 A.2d 514 (1967).

   In an earlier period of American legal history, workmen's compensation choice of law questions were often resolved by reference to tort conflicts principles. Occasionally, contract conflicts principles were employed.  § 87.22 (c) at 16-57 -- 16-58.  Thus, when workmen's compensation[***12] statutes were first enacted, many courts applied tort conflicts principles and the rule of lex loci [**1211] delicti to claims for compensation benefits.  4A. Larson, Workmen's Compensation Law §§ 87.21, 87.22 (c) at 16-54, 57, 58 (1982).  This approach was quickly disapproved by state legislatures.  As a result, virtually all workmen's compensation statutes today contain their own choice of law provisions and cover out-of-state injuries.  For the applicable provision of the Maryland Workmen's Compensation Act, see Maryland Code (1957, 1979 Repl. Vol.), Art. 101, § 21 (c) (4).

   With regard to workmen's compensation law bars against third party tort actions by employees, a similar phenomenon [*127] occurred.  Some courts applied the tort rule of lex loci delicti. Mitchell v. J. A. Tobin Const. Co., 236 Mo.App. 910, 159 S.W.2d 709 (1942); Pendar v. H. & B. American Mach. Co., 35 R.I. 321, 87 A. 1 (1913). Other courts employed a contract approach.  Scott v. White Eagle Oil & Refining Co., 47 F.2d 615 (D. Kan. 1930); Barnhart v. American Concrete Steel Co., 227 N.Y. 531, 125 N.E. 675 (1920). Today, however, many courts recognize that workmen's[***13] compensation law conflict issues present distinct policy questions and should not be treated as tort or contract matters for choice of law purposes.  We agree with this approach.

   Suits by employees against their immediate employers for injuries arising out of and in the course of employment are now barred by virtually all workmen's compensation statutes in this country.  Nevertheless, "because of varying rules as to the availability of the exclusive-remedy defense to the statutory employer," choice of law issues arise with respect to suits against statutory employers.  4 A. Larson, Workmen's Compensation Law, supra, § 88.10 at 16-131 to 16-132.  In these suits, it is generally held that the forum state will enforce a bar created by the exclusive remedy statute of any state in which the employer may be liable for workmen's compensation benefits.  Id. at 16-132. Although the outcome in some of these cases is the same as it would be if the rule of lex loci delicti were applied, the underlying rationale in holding the employer immune is different.  The rationale is that the employer has undertaken the burden of supplying workmen's compensation insurance in return for immunity [***14]from suit.  Jonathan Woodner Co. v. Mather, 210 F.2d 868, 873-874 (D.C. Cir. 1954); Wilson v. Faull, 27 N.J. 105, 118-119, 141 A.2d 768 (1958). Moreover, in several cases this rationale has been used to bar an action which would not be barred under the rule of lex loci delicti. n3 [*128] The rationale for precluding [**1212] employee-employer suits, however, does not apply in actions by employees against fellow employees. 4 A. Larson, Workmen's Compensation Law, supra, § 88.21 at 16-145.

n3 The cases and rationale were well-summarized by the United States Court of Appeals for the District of Columbia Circuit, in the Jonathan Woodner case, 210 F.2d at 873-874 (applying the Maryland workmen's compensation statute):

   "Suit by an employee against his employer for damages has almost invariably been denied where some applicable workmen's compensation act existed under which the employee could have claimed compensation.  Most of these cases involved the situation described above: suit in the place of contracting, the law of the place of injury presenting the bar.  And, while suit was ordinarily held barred on the ground that the law of the place of injury controls in a tort suit, a few of these cases indicated that, regardless of where the injury occurred, if the employee could claim compensation anywhere a suit for damages would not be allowed.  Other cases, however, are clearer on this point.  Where the state of contracting rather than the state of injury presents a bar, the simple expedient of saying that the law of the place of injury governs a tort action will not prevent suit.  In such cases the law of the place of contracting is chosen and again the claimants are relegated to their remedy under the applicable workmen's compensation law -- regardless of whether the forum is in the state of injury or the state of contracting.  The language of these cases is sometimes ambiguous; and occasionally a court will justify its choice of law on a seemingly unrelated ground.  But the thrust of these groups of cases, taken together, is apparent: in an employee-employer suit, if some workmen's compensation act purports to bar the action, that bar will be applied in the forum.

   "The rationale underlying these cases, though not articulated, seems clear. The employer has incurred the burden of providing workmen's compensation insurance.  The employee has foregone his right to sue the employer for negligence.  But both have also gained.  The employer has gained an immunity from common law suit.  The employee has gained a right to relief even where his injury did not arise through the fault of his employer.  The courts clearly consider that this system of mutual give and take would be upset if the employee could sue for negligence in another jurisdiction." (Footnotes omitted; emphasis supplied.)

[***15]

    Consequently, where actions by injured employees have been brought against co-employees in one state for wrongs committed in another state, courts, even in traditional lex loci delicti jurisdictions, have applied the workmen's compensation law of the forum state.

   In Simaitis v. Flood, 182 Conn. 24, 437 A.2d 828 (1980), an injured employee brought an action in Connecticut against a co-employee based upon the alleged negligent operation of an automobile in Tennessee.  Both the plaintiff and defendant were residents of Connecticut; they were hired in Connecticut, and their principal place of employment was in Connecticut.  Each of the parties received workmen's compensation benefits under the Connecticut statute for [*129]their injuries sustained in Tennessee.  Since Tennessee law did not allow an employee to sue a co-employee for compensable injuries, and the Connecticut workmen's compensation law did permit such suits, the defendant argued that the law of Tennessee applied because that is the state where the alleged wrong occurred.  In determining which state's law should apply, the Supreme Court of Connecticut first rejected a contract choice of law rule, even though[***16] it observed that such rule would be "certain" and "easily applied." 437 A.2d at 830. n4 Next, it rejected the tort choice of law rule because, "like the contract choice of law approach, the place-of-the-injury rule affords only an unsatisfactory resolution to the workers' compensation choice of laws problem." Id. at 831. n5 Finally, the court held that the "proper choice of law rules to apply . . . are the rules [*130] traditionally applied to workers' compensation conflicts cases." Id. at 832.  The Connecticut court continued (ibid.):
 
". . . Tennessee has no legitimate interest in preventing Connecticut from providing the injured employee with a right of action for damages against a third party, particularly where both the employee and the alleged tortfeasor are Connecticut residents, the employer is a Connecticut corporation and the employee was hired and is principally employed in Connecticut."
 
The court in Simaitis concluded (id. at 833):

   "According to Professor Larson, the applicable law in a workers' compensation [**1213] case is the law of the place of the employment relation, because 'the existence of the employer-employee relation[***17] within the state gives the state an interest in controlling the incidents of that relation, one of which incidents is the right to receive and the obligation to pay compensation.' 4 Larson, supra, § 87.40, p. 16-84.  There is no question that the employment relation in this case exists in Connecticut, not in Tennessee. For all of the foregoing reasons, the right of action provided by the Connecticut Workers' Compensation Act cannot be denied the plaintiff by Tennessee law."

n4 Among other reasons for rejecting a contract choice of law rule, the Connecticut court stated (437 A.2d at 830-831):

   "A . . . problem encountered by this approach is the possibility that an employer can avoid the full extent of potential liability imposed by the Connecticut Workers' Compensation Act simply by making the contract elsewhere, even though all other incidents of employment, such as the place of performance, the employee's residence and the employer's place of business, are in Connecticut.  In addition, jurisdictions which have adhered to the contract choice of law rule have become immersed in disputes over contract law to determine where the employment contract was made, disputes which bear no relationship to the purpose of the Workers' Compensation Act."
[***18] 

n5 The Supreme Court of Connecticut reasoned as follows (437 A.2d at 831):

   "The application of Connecticut's tort choice of law principles to compensation cases would bestow upon temporary visitors injured in Connecticut all the relief which the Connecticut compensation act affords, but deny that same relief to Connecticut residents injured while on temporary business outside the state, even when all other incidents of employment, such as in this case, are in Connecticut.  Moreover, if this court were to adhere to a strict application of the place-of-the-injury rule, a Connecticut resident and employee of a Connecticut employer under a Connecticut contract, who was injured while on temporary business in another jurisdiction might be left with no tort remedy whatsoever if that other jurisdiction applied a different choice of law rule.  . . .

   "The Connecticut Workers' Compensation Act . . . clearly contemplates an award of damages against the defendant for injuries arising out of and in the course of the plaintiff's employment while she temporarily performed duties in Tennessee."

   Another[***19] recent case involving an injury in one jurisdiction and a co-employee suit in a different jurisdiction, where the workmen's compensation law of the forum was applied, is Saharceski v. Marcure, 373 Mass. 304, 366 N.E.2d 1245 (1977). The parties in that case, Massachusetts residents and employees of a Massachusetts company, were acting in the course of their employment when the plaintiff was injured by the defendant's operation of a vehicle in Connecticut.  Massachusetts law, unlike Connecticut law, precluded an employee from suing a fellow employee based on a compensable injury.  The Supreme Judicial Court of Massachusetts in Saharceski pointed to the distinction [*131] between deciding whether particular conduct was tortious and deciding whether its own residents could sue in its courts (366 N.E.2d at 1249):
 
"Although traditionally we would look to the law of the place of the alleged wrong to determine whether the defendant's conduct was tortious, the matter of the right of a particular resident of this Commonwealth to sue and recover from another resident of this Commonwealth may be governed more properly in particular instances by Massachusetts law."
 
Stating[***20] that, since the parties were hired and lived in Massachusetts, neither had a "reasonable basis for expecting" liability under the circumstances, the court held that the Massachusetts workmen's compensation statute should control.  Ibid.
 
   A New York court applied the workmen's compensation law of the forum, rather than the workmen's compensation law of the state where the injury occurred, in Fagan v. John J. Casale, Inc., 16 Misc.2d 1046, 184 N.Y.S.2d 109 (1959). There a chauffeur employed by a New York trucking company brought an action against a fellow employee for injuries sustained, during the course of employment, in New Jersey.  The New York workmen's compensation law prohibited co-employee suits, while the New Jersey law permitted such suits.  The injured employee claimed that because the accident occurred in New Jersey, the familiar lex loci delicti rule should apply. n6 The New York court rejected this argument and held that the New York workmen's compensation law applied because of "the declared public policy" of the forum.  Fagan v. John J. Casale, Inc., supra, 16 Misc.2d 1048. n7 

n6 At the time of the Fagan case, the New York courts still adhered to the rule of lex loci delicti for tort choice of law issues.  The "center of gravity" or "grouping of contacts" doctrine was later adopted by the Court of Appeals of New York in Babcock v. Jackson, 12 N.Y.2d 473, 481, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963).

[***21] 

n7 A different result was reached in Wilson v. Fraser, 353 F.Supp. 1 (D.Md. 1973), where the administratrix of the estate of a deceased employee sued the estate of the negligent deceased co-employee. The court held that Virginia law, which precluded fellow employee suits, and not Maryland law, applied to bar the action.  In reaching this result, however, the court was persuaded by the Maryland Wrongful Death Statute which expressly requires that the substantive law of the place of death govern.  In the instant case, we have no occasion to decide whether the choice of law provision of the wrongful death act extends beyond substantive tort issues and encompasses the question of entitlement to bring an action in light of workmen's compensation law.

   [*132] In Maryland, we have not previously been faced with the issue of which state's workmen's compensation law applies when the co-employee action for damages was filed here but the act giving rise to the injuries occurred in another state Nevertheless, in Hutzell v. Boyer, 252 Md. 227, 249 A.2d 449 (1969), we recognized that the choice of[***22] law [**1214] issue in co-employee actions was not simply a matter of tort conflict of laws, and that Maryland public policy was an important consideration.  In Hutzell an employee brought an action in Maryland against a co-employee to recover for injuries sustained when he was a passenger in a truck driven by the co-employee. Both parties were residents of Maryland but were employed in Virginia.  They were returning to their Maryland homes from the job site in Virginia when the truck went off the road in Maryland and struck a utility pole.  As in the instant cases, the foreign (Virginia) workmen's compensation statute barred co-employee actions.  This Court, however, held that the Maryland statute, permitting such actions, governed the case.
 
   While the Court in Hutzell did refer to the lex loci delicti rule and the fact that the collision occurred in Maryland, this was not the principal basis of the opinion.  As pointed out by the Court of Special Appeals in the present case, n8 and by Professor Larson, n9 the principal basis for the decision in Hutzell was Maryland public policy. In that case, the defendant argued that the Maryland allowance of co-employee suits[***23] did not represent "a formulated or defined public policy against granting immunity to fellow employees from tort action, as provided in the Virginia statute," [*133] Hutzell v. Boyer, supra, 252 Md. at 233. This Court's response was that the defendant's "argument has not persuaded us." Ibid. The Court expressly disagreed with the New Jersey case of Stacy v. Greenberg, 9 N.J. 390, 88 A.2d 619 (1952), which had attached little importance to the policy of the forum state in allowing co-employee suits.  The Hutzell opinion stated that "we are unable to make a similar finding with regard to . . . the public policy of Maryland." 252 Md. at 236.

n8 Connor v. Hauch, 50 Md.App. 217, 223, 437 A.2d 661 (1981).

n9 4 A. Larson, Workmen's Compensation Law, § 88.22, 16-149 (1982).

   With regard to the threshold matter of whether the court is open to a particular litigant, obviously the policy of the forum state is extremely important.  In this respect, the bar or absence thereof in a state's workmen's [***24]compensation statute is somewhat analogous to the bar of a state's statute of limitations.  The latter matter, of course, is controlled by the law of the forum. n10

n10 Although the rationale often given for the rule that the law of the forum governs the applicable statute of limitations is that the matter is "procedural" (see, e.g., Doughty v. Prettyman, 219 Md. 83, 88, 148 A.2d 438 (1959)), the better reason is that it implicates the public policy of the forum rather than the public policy of another jurisdiction.  As Professor Leflar has observed (Leflar, American Conflicts Law, § 127, at 253 (3rd ed. 1977):
 
"Access to forum courts is a matter for forum law to determine.  Any state may bar suits on extrastate claims on the same limitations grounds that it uses to bar suits on domestic claims.  The full faith and credit and equal protection clauses are not violated by such exclusions, and certain social policies may be served by them.  The forum's limitations rules represent its policy on the enforcement of stale claims, and a policy of repose may be relevant to all lawsuits filed in the forum's courts regardless of where the claims arose.  The technical characterization of a limitations problem as procedural has little if anything to do with this policy . . . ."

[***25]

   In light of the policy of the Maryland workmen's compensation law, this Court in Hutzell held that Maryland courts are open to co-employee suits even though the place of employment was another state, at least when the parties are residents of Maryland and the injury occurred in Maryland.  In the instant case, although the injury did not occur in Maryland, there are greater Maryland interests.  Here, in addition to the parties being Maryland residents, their normal place of employment is in Maryland with the Hertz Corporation.  Moreover, the plaintiffs and the [*134] defendant made claims for and received benefits under the Maryland Workmen's Compensation Act. Certainly under the reasoning of the cases previously discussed, Maryland workmen's compensation law should determine the threshold question of the right to bring suit in Maryland courts.

   Judgment of the Court of Special Appeals affirmed.

   Petitioner to pay costs. 

JOSEPH DODSON et al. v. ANNE ARUNDEL COUNTY, MARYLAND 
No. 16, September Term, 1982
 
Court of Appeals of Maryland
 
294 Md. 490; 451 A.2d 317; 1982 Md. LEXIS 326

 October  14, 1982, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Williams, J., pursuant to certiorari to the Court of Special Appeals.

DISPOSITION: Judgment affirmed.  Costs to be paid by the appellants.

CORE TERMS:  condemnation, condemnation proceedings, inquisition, landowner, abandon, condemnor, legal rate of interest, fair market value, clerk, conventional, deposited, unreasonable delay, date of payment, abandonment, recorded, nisi, elements of damage, property owner, eminent domain, entry of final judgment, amount of interest, parties stipulated, condemnation award, interest earned, certificate, condemnee, paying, prejudgment interest, market value, registry

COUNSEL: George W. Liebmann for appellants.

   Robert C. Wilcox, Assistant County Solicitor, with whom was Steven P. Resnick, County Solicitor, on the brief, for appellee.

JUDGES: Murphy, C. J., and Smith, Eldridge, Cole, Davidson, Rodowsky and Couch, JJ.  Couch, J., delivered the opinion of the Court.

OPINIONBY: COUCH

OPINION: [**318] [*492] Opinion by Couch, J.

   In this case, we are presented with three issues: (1) whether there is authority for applying the legal rate of interest to judgments in conventional condemnation proceedings; (2) whether, in conventional condemnation proceedings, the application of the legal rate of interest rather than the prevailing market rate of interest denies [**319] the condemnee "just compensation" as constitutionally required; and (3) whether the 110-day "delay" by the County in paying the judgment was reasonable.

   The appellants, Joseph Dodson et al., owned approximately 243 acres of undeveloped land, located in the 8th Election District of[***2] southern Anne Arundel County, in an area known as Jug Bay.  They had successfully obtained a special zoning exception and the necessary permits to allow for development of the property as a campground for recreational vehicles.  On September 15, 1977, Anne Arundel County (County) filed condemnation proceedings in the circuit court in order to acquire this property.  On September 26, 1977, Joseph Dodson, unaware of the pending condemnation proceedings, went to the County Office of Inspections and Permits to obtain the grading permits which had been approved.  At that time, one of the employees attempted to give Dodson written notice of the condemnation proceeding.  However, Dodson refused to accept the letter, and it was subsequently mailed to him.

   On December 14, 1978, the parties stipulated that the value of the property would be fixed as of December 19, 1978, and the landowners' out-of-pocket expenses for development ($30,000) would be included in the jury award.  The matter proceeded to trial, and, on March 12, 1980, the jury returned its inquisition in the amount of $500,000.  Judgment nisi was entered by the circuit court on March 13, 1980.  Final judgment was entered on[***3] March 18, 1980, and the inquisition [*493] was recorded in the judgment index the same day.  Although it was forwarded to the Land Records office, the inquisition was not recorded because a certificate of payment had not been filed as required by Maryland Rule U22 a.

   Neither party appealed the judgment.  Therefore, pursuant to Maryland Code (1974, 1981 Repl. Vol.), Real Property Article, § 12-109(d)(2), and Maryland Rule U26 c 2, the County had "120 days after the entry of final judgment" to determine whether to take the property or abandon the proceedings.  On June 30, 1980, 110 days after entry of the judgment, the County elected to take the property and paid the appellants a total of $508,958.93, the amount of the award plus interest at the legal rate of six percent n1 from the date of entry of judgment to the date of payment. The certificate of payment was filed by the County and the jury inquisition was recorded in the Land Records office that same date, effectively vesting title in the County.  

n1 The legislature changed the legal rate of interest on judgments from 6% to 10% per annum, effective July 1, 1980.  Md. Code (1974, 1981 Cum. Supp.), Courts & Judicial Proceedings Article, § 11-107(a).

[***4]

   Subsequently, the property owners filed a two-count declaration asserting I) that the 110-day delay in payment of the award was unreasonable, and II) that the payment of the prevailing legal rate of interest (six percent) on the award was unconstitutional.  On March 10, 1981, the trial court sustained, without leave to amend, the County's demurrer to Count II, on the basis that while there is no constitutional right to receive interest on a condemnation award, there is a statutory right to such interest; and, pursuant to Md. Rule 642, the legal rate of interest applied.  The order was stayed pending a trial on the merits of Count I.  On June 10, 1981, the landowners' motion for summary judgment as to Count I was denied.  At the trial of the merits, the circuit court, sitting without a jury, found that the County's delay in paying the award was reasonable.  Judgment was rendered for the County on November 6, 1981, and the property owners appealed both rulings.  We granted certiorari in order to finally put to rest the controversy surrounding the [*494] payment of the legal rate of interest on condemnation awards.

   (1)

   The appellants argue, first, that there is no statutory[***5] authority for application of a six percent interest rate in a conventional condemnation case.  Even if such interest rate does apply, the appellants further contend that it is unconstitutional because it violates the just compensation clauses of [**320] the United States and Maryland Constitutions.

   We hold that the trial court properly sustained the County's demurrer to Count II.  It is elementary that the sovereign may not take private property for public use without payment of "just compensation" to the property owners.  See U.S. Const. amend. V and Md. Const., art. III, § 40.  The Supreme Court has interpreted "just compensation" to be the "full and perfect equivalent in money of the property taken" from the landowner. United States v. Miller, 317 U.S. 369, 63 s.c/t. 276, 279, 87 L.Ed. 336, 342 (1943), reh'g denied, 318 U.S. 798, 63 S.Ct. 557, 87 L.Ed. 1162 (1943). This compensatory award is no more than indemnity for the loss caused by the taking and is intended to put the landowner in as good a pecuniary position as if no taking had occurred.  Toward this end, the Supreme Court did not lay down a general formula applicable to all cases. Instead, since the[***6] monetary award is dependent on the facts of each case, the fair market value of the property, at the time of the taking, serves as a practical guide and standard.  n2 

n2 This standard translates into "market value fairly determined;" i.e., what a willing buyer would pay a willing seller under fair market conditions, Miller, supra, 317 U.S. at 374, 63 S.Ct. at 280, 87 L.Ed. at 343.

   This Court has traditionally equated "just compensation" with "fair market value of the land at the time of the taking." State Roads Comm. v. Warriner, 211 Md. 480, 485, 128 A.2d 248, 251 (1957). For purposes of condemnation proceedings, the legislature has defined "fair market value" as:

   "the price as of the valuation date n3 for the highest and best use of the property which a vendor, willing [*495] but not obligated to sell, would accept for the property, and which a purchaser, willing but not obligated to buy would pay,..." Code (1974, 1981 Repl. Vol.), Real Property Article, § 12-105(b). 

n3 Md. Code (1974, 1981 Repl. Vol.), Real Property Article, § 12-103, governs when market value is to be determined.  However, that section is not relevant here since the parties stipulated that the value of the property was to be fixed as of December 19, 1978.

[***7]
The jury may properly consider various elements that influence market value at the time of the taking in its determination of damages.  For example, we have held that "consideration may be given to any utility to which [the land] is adapted and for which it is immediately available[;]" as well as the condition of the land, improvements on the land, and the effect, if any, on the remainder of the land where only a portion is taken.  Pumphrey v. State Roads Comm., 175 Md. 498, 506, 2 A.2d 668, 671-72 (1938). The jury may also take into account the sales of comparable lands, State Roads Comm. of Maryland v. Wood, 207 Md. 369, 373, 114 A.2d 636, 638 (1955); evidence of reasonable probability of rezoning, Warriner, supra, at 484, 128 A.2d at 251-252; and, "any special features which may enhance [the property's] marketability...." Brack v. M. & C.C. of Baltimore, 125 Md. 378, 381, 93 A. 994, 995 (1915). However, the jury should disregard any enhancement in value caused by the proposed project for which the property is taken.  State Roads Comm. v. Parker, 275 Md. 651, 683, 344 A.2d 109, 127 (1975); Code (1974, 1981 Repl. Vol.), Real Property Article, § 12-105(b). [***8] In each case, the value of the land, with reference to its uses and purposes, is the essential fact to consider, and the appropriate approach to the fair market value determination will depend on the facts of the case.  Miller, supra, 317 U.S. at 373-74, 63 S.Ct. at 280, 87 L.Ed. at 342.

   While the jury determines the amount of just compensation in condemnation cases (i.e., fair market value), the legislature has provided that the condemnees are entitled to additional elements of damage. In Lore v. Board of Public Works, 277 Md. 356, 354 A.2d 812 (1976), this Court held [*496] that one of those additional elements is interest on the judgment.  Judge Digges stated for the Court:

   [**321] "Having concluded that in condemnation cases the General Assembly may grant property owners more than the constitutional minimum of 'just compensation,' we must ask whether the Maryland Legislature has done so in regard to takings such as the one now before us and, if so, whether interest on the award is one of the additional elements of damage it has authorized.  We think it clear that when in 1963, as a result of an extensive study undertaken at the direction of its Legislative[***9] Council, the General Assembly completely revised this State's law pertaining to eminent domain, it specifically provided that, in addition to the payment of 'just compensation,' other elements of damage should be included in the award to be paid the property owner. It seems equally obvious to us that one of the extra elements of damage this revision authorizes to be disbursed to property owners, is the very one at issue here - interest on the award, computed from the date of the entry of the judgment nisi to the time the judgment is satisfied." Id. at 359, 354 A.2d at 814 (footnote and citation omitted).
This Court has also held that the general rules of procedure apply to condemnation proceedings. See Hammond v. State Roads Comm., 241 Md. 514, 517, 217 A.2d 258, 260 (1966). Therefore, under Md. Rule 642, the property owners are entitled to the legal rate of interest on the judgment in a conventional condemnation proceeding.  n4 See Paape v. Grimes, 256 Md. 490, 494, 260 A.2d 644, 646 (1970) (where no specific rate is given, term "interest" is construed to be at legal rate).  The legal rate of interest for the time period in question was six percent.  Md. Const., [***10] art. III, § 57.  See footnote 1, supra. Accordingly, we hold that the appellants [*497] were legally entitled to interest on the award at the rate of six percent from the date of entry of judgment to the date of payment. 

n4 Payment of interest in a "quick-take" condemnation is governed by statute. See Md. Code (1974, 1981 Repl. Vol.), Real Property Article, § 12-106(c).

   The second prong of the appellants' argument, that the six percent rate is unconstitutional, is without merit.  As discussed above, "just compensation" means "the full and perfect equivalent in money of the property taken [,]" Miller, supra, 317 U.S. at 373, 63 S.Ct. at 279, 87 L.Ed. at 342, and does not include interest.  Moreover, we would point out that interest in condemnation cases was not allowed at common law and is a matter of legislative grace.  See Lore v. Board of Public Works, supra. Accord Norcross v. Cambridge, 166 Mass. 508, 511, 44 N.E. 615, 616 (1896); Dept. of Transp. v. New Century, 436 N.E.2d 225, [***11] 228 (Ill. App. 1982). It is well settled in Maryland that "just compensation" in a condemnation case does not include interest.  In Norris v. Baltimore, 44 Md. 598 (1876), Judge Miller stated:

   "It is insisted on the part of the appellants, that interest in [a condemnation] case when payment is thus delayed, is a necessary ingredient of the 'just compensation' provided by the Constitution for taking private property for public use.

   We cannot, however, so regard it.  It has long been the settled law of Maryland, that both private and municipal corporations, when authorized to exercise the power of eminent domain, have the right to renounce the inquisition and select a more eligible route, or to wholly abandon the improvement or enterprise, at any time before actual payment of the amount assessed, either by commissioners or jury, and until that time no title to the property condemned vests in the corporations.

   But when this sum is paid or tendered, the title vests, and the constitutional requirement is gratified.  Nothing more than this sum can, in any case, be demanded by the property owner, as, and for the compensation which the Constitution secures to him.  This we[***12] consider to be the firmly [*498]established law of this State." Id., at 604 (emphasis in original) (numerous citations omitted).
[**322] While the legislature has provided for the additional element of interest on the judgment, Lore, supra, the interest paid for the period between the judgment nisi and the taking is not intended to be part of the "just compensation" to which the condemnees are constitutionally entitled for the taking of the land.Rather, the purpose of the interest is to compensate for the "loss of the use of the monies represented by the judgment..., and the loss of income thereon, between the time of the entry of the judgment nisi... and the satisfaction of the judgment by the payment." I.W. Berman Properties v. Porter Brothers, Inc., 276 Md. 1, 24, 344 A.2d 65, 79 (1975).

    (2)

   The appellants next argue that, under the due process clauses of the United States and Maryland Constitutions, they are entitled to the amount of interest earned by the County on the amount of the verdict during the intervening period. At the trial on the merits, the parties stipulated that the average yield on the County's short-term investments was as[***13] follows: 

March          14.48 percent
April          15.28 percent
May             9.18 percent
June            8.59 percent

 
The appellants contend that a taking occurred as early as the date of institution of the condemnation proceedings because they took no further action toward developing the land once warned that such development could have an adverse effect on the condemnation award. They assert that they were denied the use of their land, and, therefore, should recover the actual amount of interest earned by the County.  The appellants also claim that they are entitled to compensation for the appreciation of the value of their property.

   We reject the appellants' arguments on both points.  As the County points out, the parties stipulated, prior to the trial in [*499] the condemnation proceedings, that the value of the property would be fixed as of December 19, 1978.  This stipulation was entered at the risk of both parties since, in these uncertain economic times, the property value could have depreciated by the time the inquisition award was entered.  Having entered such stipulation freely and voluntarily, the appellants cannot now claim entitlement to an alleged appreciation of the[***14] property value from the agreed date to the date of payment. Moreover, the appellants were not entitled to any compensation until a taking occurred.

   In a conventional condemnation case, the time of taking is statutorily defined.  See Code (1974, 1981 Repl. Vol.), Real Property Article, § 12-102.Section 12-102(1) prescribes the time of taking in "quick-take" procedures; section 12-102(2) states that a taking occurs "[i]n every other case, if the plaintiff pays the judgment and the costs pursuant to Subtitle U of the Maryland Rules" (emphasis supplied).  n5 Accord Schreiber v. Baltimore City, 248 Md. 425, 427, 236 A.2d 732, 733 (1968). We hold that, by definition, a taking did not occur until June 30, 1980.  

n5 We note that there is no universal law as to when a taking occurs.  For a summary of the law in this area, see 3 Nichols, The Law of Eminent Domain, § 8.63 (rev. 3rd ed. 1978).

   While there may be circumstances that warrant a finding that a compensable taking has occurred prior to payment[***15] of judgment, we hold that there was no such taking in this case.  As we stated in Stevens v. City of Salisbury, 240 Md. 556, 214 A.2d 775 (1965):

   "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. '...  [I]t is now established that reasonable regulation, which is not confiscatory, but which leaves the owner in substantial enjoyment of his property, although diminishing its value through the restriction of its use, is valid without compensation.'...  [I]n order to be compensable, the damage resulting [*500] from the restriction must be 'substantial,' and constitute [**323] 'severe interferences which are tantamount to deprivations of use or enjoyment of property.'" Id. at 567, 214 A.2d at 781 (numerous citations omitted).
It is, thus, clear that some actions are valid without payment of compensation for the fair value of the property rights.  If the use benefits the owner in a particular application, or an existing use is permitted to continue, there is no taking in[***16] the constitutional sense and no compensation payment is required.  n6 In the instant case, it is undisputed that the appellants remained in possession of the land and that they were not prevented from using the property during the intervening period.  While the appellants argue that the undeveloped land had no rental value, Dodson testified that, in fact, no effort had been made to rent the land.  Also, the appellants received their grading permits and were not precluded by the County from developing the land.  The letter Dodson received from J. Michael Evans, Director, Department of Inspections and Permits, stated in pertinent part: 

n6 See generally Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 Harv. L. Rev. 1165 (1967) (Factors to be considered in deciding whether compensation is required include (1) the amount of economic injury to the property; (2) the harmfulness of the land use so restricted; (3) the loss to the property owner as balanced against the gain to the public; (4) any physical use or occupation of the property by the government.) Md.-Nat'l. Cap. P. & P. Comm. v. Chadwick, 286 Md. 1, 11, 405 A.2d 241, 246 (1979).

[***17]

   "Any construction operations conducted on the property will be undertaken at your own risk.  A jury may well determine that your conduct has diminished the value of the land.  On the other hand, if your conduct enhances the value, a jury could determine that your purpose was to impress the jury rather than to operate a business on the property."
In addition, the appellants had use of the property for duck blinds and (as pointed out during oral arguments) muskrat [*501] traps.  Accordingly, we hold that there was no constitutional taking requiring payment of compensation until June 30, 1980, when payment was made, the certificate of payment filed, and the jury inquisition recorded. Therefore, the appellants were not entitled to payment until June 30, 1980, and cannot constitutionally claim the amount of interest earned by the County from March through June of 1980.

    Upon reviewing the federal cases relied upon by the appellants, we conclude that such cases are factually distinguishable from the instant matter and that the appellants' reliance is misplaced.  Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 101 S.Ct. 446, 66 L.Ed.2d 358 (1980), involved a situation[***18] where an interpleader fund had been deposited with the clerk of the court and placed in an interest-bearing account.  A receiver was subsequently appointed by the court and moved to have the fund delivered to him. The clerk withheld $9,228.74, the amount to which the court was statutorily entitled as its fee for "'services rendered' for 'receiving money into the registry of the court,'" n7 as well as the interest earned on the fund (nearly $100,000).  Id., at 157, 101 S.Ct. at 448, 66 L.Ed.2d at 362. The receiver filed suit to recover the amount of interest and the circuit court ruled in his favor. The Florida Supreme Court reversed on the basis that once deposited with the court, the fund became public money.  No constitutional taking had occurred because the interest earned on the clerk's registry account was not private property.  The United States Supreme Court reversed, holding that the principal sum deposited was private property.  That ruling was in accordance with the general rule that "interest on an interpleaded and deposited fund follows the principal and is to be allocated to those who are ultimately declared owners of that principal." Id., at 162, 101[***19] S.Ct. at 451, 66 L.Ed.2d at 365. It is clear that since the clerk of the court was merely holding the interpleader fund until it could be determined which creditors were entitled to [**324] what amount, the clerk had no legal right to retain the interest earned by [*502]such fund.  In the case sub judice, the appellants' argument would be more persuasive had the County deposited the amount of the inquisition award in the court's registry, elected to take the property, and then claimed the amount of interest earned, if any.  However, that did not happen.  The appellants were not entitled to any compensation until a taking occurred, and, by definition, there was no taking until the judgment was paid, a certificate of payment filed, and the inquisition recorded. 

n7 Pursuant to Fla. Stat.  § 28.24 (14) (1977), the clerk was authorized to charge one percent of the first $500 deposited and one-half percent of each subsequent $100.

   In George's Radio & TV v. Ins. Co. of North America, 536 F. Supp. [***20] 681 (D. Md. 1982), the court found that the plaintiff was entitled to insurance coverage and awarded prejudgment interest at the market rate applying the average rate of return on Moody Aaa long-term corporate bonds.  Id., at 685. However, Judge Jones made the following observations regarding prejudgment interest:

   "Awarding prejudgment interest is a matter within the Court's discretion to afford full and fair compensation to the injured party.  The rate of interest and the date from which it runs are within the Court's discretion....

   Prejudgment interest is awarded to put the injured party in the position he would have occupied had the defaulting party fulfilled his obligation.... Regardless of the company's good faith in denying coverage, plaintiff is entitled to recover interest from the date coverage was denied." Id., at 683-84 (emphasis added) (citations omitted).
In the case at bar, the County did not default on any obligation, nor were the appellants denied any claim.  The County had 120 days to elect to take the property or abandon the condemnation proceedings. There was no obligation to pay compensation until a taking occurred.  As the appellants conceded[***21] at oral argument, the County could have abandoned the proceedings at any time and would not have owed the appellants anything.

   Similarly, in United States v. 97.19 Acres of Land, 511 F. Supp. 565 (D. Md. 1981), the interest was paid on the deficiency [*503] amount.  The case involved a condemnation suit, filed as a straight taking, where the jury originally awarded $15,000 as the amount of just compensation.  That amount was paid into the court and final judgment was entered July 13, 1976.  The property owner appealed and the United States Court of Appeals for the Fourth Circuit reversed and remanded.  United States v. 97.19 Acres of Land, 582 F.2d 878 (4th Cir. 1978). On remand, the case was referred to the Land Commission and the magistrate found that the taking occurred July 2, 1976, when titled vested in the United States.  The land valuation was determined as of the same date and just compensation was awarded in the amount of $80,386.  The court agreed with the recommendation of the magistrate that the plaintiff was entitled to interest on the deficiency amount because the landowner had been completely divested of title July 2, 1976, but not paid the entire[***22] compensation.  The court also concluded that the appropriate rate of interest was the average rate of return on Moody Aaa long-term corporate bonds rather than six percent.  The distinctions between this case and the case now before us are obvious.  We simply are not faced with a situation where the landowner is seeking interest on a deficiency award.  As we have discussed at length, the appellants were not entitled to just compensation until a taking occurred (i.e., June 30, 1980). The amount of just compensation to which the appellants were entitled, as determined by the jury, was $500,000.The six percent interest on that amount, from the date of entry of judgment to the date of payment, is an additional element of damage, over and above the constitutional minimum of just compensation, that has been provided for by the General Assembly.  See Lore, supra.

   (3)

   The appellants' third, and last, argument is that they are entitled to damages for the unreasonable delay by the County in electing to take or abandon the property once the judgment nisi was entered.  The County [**325] contends that they did not elect to take the property earlier than June 30, 1980, [*504] [***23] because they were experiencing severe cash flow shortages and seriously considering abandoning the proceedings.  Legally, the County had "120 days after the entry of final judgment" to abandon the proceedings.  Code (1974, 1981 Repl. Vol.), Real Property Article, § 12-109(d)(2).

   While the legislature enacted the eminent domain code in 1912, n8 there were no specific requirements regarding date of payment of compensation or time limitations imposed on the State relating to abandonment. The law in this area remained substantially the same until 1963 when it was completely revised by the General Assembly.  n9 The revised code established provisions relating to the date of valuation of the property sought to be condemned and the measure of damages, and defined the term "fair market value".  In addition, the new statute provided for the regulation of abandonment of condemnation proceedings and included precise procedural guidelines for limiting the condemnor's unrestrained right to abandon. Specifically, the condemning authority could no longer abandon the condemnation process after a taking had occurred or 120 days after entry of final judgment unless an appeal had been taken.  These[***24] limitations are currently codified as Code (1974, 1981 Repl. Vol.), Real Property Article, § 12-109(d).  

n8 Md. Laws 1912, ch. 117, added Art. 33A, entitled "Eminent Domain".

n9 Md. Laws 1963, ch. 52, repealed Code (1957, 1962 Supp.), Art. 33A and enacted a new Art. 33A, entitled "Eminent Domain".  For a complete analysis of the new Art. 33A, see Baker & Altfeld, Maryland's New Condemnation Code, 23 Md. L. Rev. 309 (1963), and Ghingher & Ghingher, A Contemporary Appraisal of Condemnation in Maryland, 30 Md. L. Rev. 301 (1970).

   The purpose of the 120-day limitation on exercising the right to abandon is twofold.  First, it preserves the condemnor's common law right to reconsider the jury's inquisition and elect to abandon the condemnation proceeding prior to payment of the award.  Secondly, the 120-day limitation may relieve property owners of the suspense and hardship which attaches to delay in the election to abandon. Cf. State v. Ambrose, 191 Md. 353, 365, 62 A.2d 359, 364 (1948). Prolonged[***25] uncertainty, surrounding an unlimited abandonment period, was previously regarded [*505] as damage without injury in the legal sense; this left the landowner without redress or remedy for the condemnor's delay. Lord Calvert Theatre v. Baltimore, 208 Md. 606, 611, 119 A.2d 415, 417 (1956), citing Shanfelter v. Baltimore, 80 Md. 483, 494, 31 A. 439, 442 (1895). The 120-day ceiling is a legislative attempt to correct this situation by eliminating extended, unnecessary uncertainty.  Although some delays are inherent in the condemnation process, the condemnor, pursuant to section 12-109(d), must abandon, if at all within 120 days after entry of final judgment.

   At common law, the landowner was entitled to sue for damages, in an action separate from the condemnation proceedings, for certain delays by the condemnor in paying the award or abandoning the proceedings.  The delay of payment or abandonment had to be "without justifiable excuse," Norris, supra, at 608, or "culpable or unreasonable," Black v. Baltimore, 50 Md. 235, 242 (1879), and, without the landowner's acquiescence, Id., at 243-44. Upon a showing of "bad faith, negligence, or default in some legal[***26] duty," the landowner could recover damages if harm actually resulted from such unreasonable delay, Petroli v. Baltimore, 166 Md. 431, 434, 171 A. 45, 47 (1934). Generally, whether the delay was unreasonable was a question of fact to be determined by the jury. Black, supra, at 338.  In this separate action, the landowner could only collect damages for the condemnor's delay and could not recover the original condemnation award. Petroli, supra, at 435, 171 A. at 47. Notwithstanding a landowner's right to a separate action for unreasonable delay, the court tolerated some delay in its recognition of a condemnor's long-standing right to abandon condemnation [**326] proceedings. For example, in Ambrose, supra, n10 Judge Markell stated: 

n10 In Ambrose, the State moved to dismiss the condemnation proceedings and strike out the judgment for Ambrose.  The trial court overruled the motion and the State appealed.

   "Almost a hundred years ago it was decided both by the Supreme Court and by this[***27] court, that although a jury's inquisition, when confirmed, determines [*506] the value to be paid if the property is taken, the inquisition does not constitute a taking, and the condemning public or private corporation, if dissatisfied with the valuation or for any other reason, may abandon the condemnation and is not obligated to take the property or pay the amount of the inquisition." 191 Md. at 361, 62 A.2d at 362 (citations omitted).

   Our prior decisions regarding unreasonable delay pre-date the legislative determination of this State's policy that 120 days is the maximum amount of time to be spent by the condemnor in electing to abandon the condemnation. The independent recovery of damages for delay was used by this Court to impose some kind of sanction against unfounded, arbitrary and capricious action by the condemnor. Because the new condemnation law of 1963 imposed explicit time limitations during which abandonment must occur, we hold that ordinarily no common law right of action for unreasonable delay will be countenanced after the inception of that law.  An exception to this rule would occur in a factual situation where the decision to delay payment amounted to[***28] a taking or otherwise violated the property owner's constitutional rights.  See, e.g., Walker v. Acting Director, 284 Md. 357, 396 A.2d 262 (1979), a conventional condemnation case where, pending its appeal, the State entered upon the condemned land without paying the condemnation award. However, we hold that the circumstances of this case do not justify an award of damages for unconstitutional delay.  As discussed above, there was no taking until June 30, 1980, and no violation of any constitutional right of the condemnee.

   JUDGMENT AFFIRMED.

   COSTS TO BE PAID BY THE APPELLANTS. 

RICHARD L. ANDREWS v. GOVERNOR OF MARYLAND et al. 
No. 138, September Term, 1981
 
Court of Appeals of Maryland
 
294 Md. 285; 449 A.2d 1144; 1982 Md. LEXIS 309

 September  7, 1982, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Reconsideration Filed October 7, 1982; Denied October 7, 1982.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Thieme, J., pursuant to certiorari to the Court of Special Appeals.

DISPOSITION: Judgment of the Circuit Court for Anne Arundel County affirmed. Richard L. Andrews to pay the costs.

CORE TERMS:  voter, removal, proposed amendment, election, contingent, proposing, separately, automatic, right of removal, electorate, single subject, court system, vote requirement, ratified, amend, constitutional provision, logrolling, interrelated, constitutional amendment, order to secure, absolute right, consolidation, ratification, prescribed, electors, presumed, revived, framers, fair and impartial trial, contingency

COUNSEL: Richard L. Andrews, in proper person, appellant.

   Richard E. Israel, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellees.

JUDGES: Smith, Eldridge, Cole, Davidson, Rodowsky and Couch, JJ.  Cole, J., delivered the opinion of the Court.

OPINIONBY: COLE

OPINION: [*286] [***3] [**1145] The one issue presented by this appeal is whether two proposals for amendments to the Maryland Constitution, drafted by the General Assembly and submitted to the voters for their ratification in the general election of 1980, followed the constitutionally prescribed format for amending the Constitution, when the passage of one amendment was made contingent upon the passage of the other.

    The pertinent facts can be recounted succinctly.  The General Assembly passed two bills at its 1980 Session proposing to amend the State Constitution. Richard L. Andrews, the appellant here, challenged the proposals as violating Article XIV, § 1 of the Constitution, in that each proposal contained a provision that its passage and adoption was to be contingent on the passage of the other.  Andrews filed suit in the Circuit Court for Anne Arundel County, seeking to have the court declare the two proposed amendments invalid and requesting the court to issue an injunction to prevent the placing of the proposals on the November, 1980 ballot.

   On October 7, 1980, the Circuit Court granted summary judgment to the defendants in Andrews' suit.  Andrews appealed to the Court of Special Appeals, [***4] which dismissed the appeal as not being from a final judgment. Andrews thereupon filed a motion with the Circuit Court to render final judgment, which was granted on July 10, 1981.  In the meantime, on November 4, 1980, the voters of Maryland approved the proposed constitutional amendments and the Governor of Maryland proclaimed their ratification. Andrews once again appealed the decision of the Circuit [*287] Court to the Court of Special Appeals.  We granted certiorari prior to consideration by that court to consider the constitutional question presented.

   The amendments whose vitality Andrews challenges were proposed by the General Assembly as Chapters 523 and 524 of the Acts of 1980.  Chapter 523 proposed to repeal and amend several sections of Article IV of the Constitution.  That portion pertinent to this appeal concerns the restructuring of the court system in the Eighth Judicial Circuit, Baltimore City.  Prior to Chapter 523, each of Maryland's twenty-three counties had only one circuit level court for that county.  Baltimore City, on the other hand, had three civil common law circuit level courts: The Superior Court, the Court of Common Pleas, and the Baltimore City[***5] Court.  Md. Const. Art. IV, § 28.  See Davidson v. Miller, 276 Md. 54, 344 A.2d 422 (1975); Legum v. Blank, 105 Md. 126, 65 A. 1071 (1907). Chapter 523 proposed a comprehensive revision of Article IV, repealing Sections 27 through 35 and 37 through 39, and amending Sections 1, 4A, 4B (a), 5, 9, 18, 20, 23, 25, and 26, which resulted, as far as the issue presented here is concerned, in consolidating the various circuit level courts [**1146] in Baltimore City into one circuit court. n1 The offshoot of this would be to harmonize the Baltimore City court system with the circuit courts systems in the twenty-three Maryland counties.  In addition, Chapter 523 provided that it would only be effective if Chapter 524 was adopted by the voters in the same election. 

n1 The courts in the Eighth Judicial Circuit (Baltimore City) to be consolidated as the Circuit Court for Baltimore City under Chapter 523 of the Acts of 1980 are: The Supreme Bench of Baltimore City, the Superior Court of Baltimore City, the Court of Common Pleas, the Baltimore City Court, the Circuit Court of Baltimore City, the Circuit Court No. 2 of Baltimore City and the Criminal Court of Baltimore.

[***6]

    The second proposed amendment, Chapter 524, endeavored to amend Article IV, § 8 of the Constitution.  The change pertinent to the instant case concerns the right of removal guaranteed by that article.  Prior to Chapter 524, Article IV, § 8 provided that
 
in all suits or actions at law . . . pending in any of [*288] the courts of law in this State, having jurisdiction thereof, upon suggestion in writing under oath of either of the parties to said proceedings, that such party cannot have a fair and impartial trial in the court in which the same may be pending, the said court shall order and direct the record of proceedings in such suit or action, issue, presentment or indictment, to be transmitted to some court having jurisdiction in such case for trial.  . . .
 
This guaranteed to civil law litigants one automatic right of removal to another court of competent jurisdiction.  See Davidson v. Miller, supra; Shreffler v. Morris, 262 Md. 161, 277 A.2d 62 (1971). Chapter 524 changes this "automatic" right to a discretionary one, providing that
 
in addition to the suggestion in writing of either of the parties to the cause or case, that the party cannot have[***7] a fair and impartial trial in the court in which the cause or case may be pending, it shall be necessary for the party making the suggestion to make it satisfactorily appear to the court that the suggestion is true, or that there is reasonable ground for the same.  . . .
 
Chapter 524 concludes with the same contingency section contained in Chapter 523, i.e., that the provisions of Chapter 524 would only be effective if Chapter 523 was adopted by the voters in the same election.

   Andrews contends that by making the efficacy of each of the proposed amendments contingent upon the adoption of the other, the legislature has stepped outside the procedure prescribed by the Constitution for its own amendment.  Specifically, he maintains that the contingency provision in each of the bills violates the separate vote requirement of Article XIV, § 1: "[W]hen two or more amendments shall be submitted . . . to the voters of this State at the same election, they shall be so submitted as that each amendment shall be voted on separately."

   Andrews thus challenges the validity of the proposals, [*289] even though approved by the electorate and proclaimed by the Governor as valid amendments. [***8]Our duty here is clear.  We must determine if the legislature has complied with the scheme prescribed in the Constitution for its own amendment, for, as we said in Hillman v. Stockett, 183 Md. 641, 648, 39 A.2d 803 (1944).
 
Provisions of a constitution regulating its own amendment, otherwise than by a convention, are not merely directory, but are mandatory; and a strict observance of every substantial requirement is essential to the validity of the proposed amendment.

   We are equally mindful of the principle of judicial review that when a constitutional amendment has been ratified by the electorate every reasonable presumption in favor of its validity will be indulged in and the party challenging its validity will be saddled with the burden of clearly establishing its constitutional infirmity.  See City of Glendale v. Buchanan, 195 Colo. 267, 578 P.2d 221, 224 (1978); Keenan v. Price, 68 Idaho 423, 195 P.2d 662 (1948); City of Raton v. Sproule, 78 N.M. 138, 429 P.2d 336 [**1147] (1967). The reason for this principle is obvious.  The people are presumed to have understood the propositions as submitted and by their approval determined that the amendments[***9] are for the public good.

   Despite this heavy burden, Andrews, nevertheless, insists that the contingency clause appended to each proposal violates the voter's right to vote separately on each proposal as required in Section I of Art. XIV.  The effect of this provision, Andrews maintains, is to remove the element of choice from the voter. If the voter wishes to reject one of the proposals, he must reject both. Otherwise, if he votes "no" on one and "yes" on the other he has effectively nullified his vote.  This, Andrews argues, denies the voter his right of choice. If the voter wants to make his vote count, he must vote consistently on both proposals, the net effect of which requires the voter to cast one vote for or against both proposals.

   [*290] In ascertaining the meaning of a constitutional provision, we are governed by the same rules of interpretation which prevail in relation to a statute.  Perkins v. Eskridge, 278 Md. 619, 639, 366 A.2d 21 (1976). Thus, we consider the history of the provision, the evils to be remedied, as well as the objects to be attained by its adoption.  The standard we have enunciated for this purpose is:
 
[C]onstitutions are not to[***10] 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 words must be taken in their ordinary and common acceptation, because they are presumed to have been so understood by the framers and by the people who adopted it.  . . . It [the Constitution], unlike the Acts of our legislature, owes its whole force and authority to its ratification by the people, and they judged of it by the meaning apparent on its face.  . . . [Manly v. State, 7 Md. 135, 147 (1854).]
 
We look, then, to the history and purpose of Article XIV, § 1, as well as the provision as a whole, to determine the scope and applicability of this section to the instant circumstances.

   Although the Constitution has changed several times since the original 1776 instrument, there has always been some provision for its amendment.  The 1776 Constitution, in § 59, provided that, in order to change the Declaration of Rights or the Constitution, the General Assembly would have to pass a bill, publish it at least three months before a new election, and then confirm the bill after a new election of delegates. [***11] Thus, anytime the members of the General Assembly desired to amend the Constitution they were required to submit their positions as legislators to the uncertainties of another election in order to seek the sense of the people on the proposed amendment.

   This process was substantially altered by the Constitution of 1864 in Article XI, § 1.  That provision required a proposed amendment to receive three-fifths support of the members of both houses.  The proposals would then be publicized for at [*291] least three months and submitted to the voters for approval at the next election. If a majority of voters approved then the Governor was to proclaim the amendments.  It is in the 1864 Constitution that the restriction first appears that "[w]hen two or more amendments shall be submitted by the General Assembly to the qualified electors of the State at the same election, they shall be so submitted that the electors may vote for or against each amendment separately."

   The Constitution of 1867, in Article XIV, § 1, continued the process in substantially the same form as that prescribed in the Constitution of 1864. However, the framers added a short but significant phrase at the beginning: [***12]"The General Assembly may propose Amendments to this Constitution; provided, that each Amendment shall be embraced in a separate Bill, embodying the Article or Section, . . . ." (Emphasis supplied.) Thus a proposal to amend the Constitution was required to be couched in a separate bill so that the electorate could cast a separate vote.

   The next relevant change in Article XIV, § 1 occurred in 1972, with the ratification [**1148] of Chapter 367 of the Laws of 1972.  This amendment became and is the present Article XIV, § 1.  In pertinent part it states:
 
The General Assembly may propose Amendments to this Constitution; provided that each Amendment shall be embraced in a separate bill, embodying the Article or Section, as the same will stand when amended.  . . . The requirement in this section that an amendment proposed by the General Assembly shall be embraced in a separate bill shall not be construed or applied to prevent the General Assembly from (1) proposing in one bill a series of amendments to the Constitution of Maryland for the general purpose of removing or correcting constitutional provisions which are obsolete, inaccurate, invalid, unconstitutional, or duplicative; [***13] or (2) embodying in a single Constitutional amendment one or more Articles of the Constitution so long as that Constitutional [*292] amendment embraces only a single subject. . . . When two or more amendments shall be submitted . . . to the voters of this State at the same election, they shall be so submitted as that each amendment shall be voted on separately.
 
Thus, in 1972 the people ratified an explanation and clarification of the separate bill requirement, limiting it in the case where the proposed amendment seeks to correct a faulty or outmoded document and further defining it to mean that as long as the provisions of the amendment relate to a single subject, it (the amendment) could be proposed in a separate bill.

   It is generally agreed that these constitutional provisions are all aimed at preventing the pernicious practice of "logrolling" in the submission of a constitutional amendment. See, e.g., Carter v. Burson, 230 Ga. 511, 198 S.E.2d 151, 156 (1973); Moore v. Shanahan, 207 Kan. 1, 486 P.2d 506, 516 (1971); City of Raton v. Sproule, 78 N.M. 138, 429 P.2d 336, 342 (1967). Logrolling occurs when two or more propositions essentially dissimilar in[***14] subject matter are submitted to the electorate in one amendment so that the voter may cast one expression of his vote answer on the measure as a whole.  The voter is thus bound in order to secure the enactment of the provision he favors, to vote for others of which he may disapprove.  Our constitutional provision is designed to prevent this practice.

   The question of whether there has been a violation of the separate vote requirement because of logrolling usually has arisen when there has been one amendment submitted which includes two or more subjects.  The courts which have recognized violations of the separate vote requirements have done so because the propositions included in the amendment related to more than one subject and had at least two distinct and separate purposes not dependent upon or connected with each other.

   While our research has uncovered no fact situation similar to the case sub judice, i.e., two amendments each contingent on the other's passage, we believe an analysis of the cases [*293] dealing with one amendment containing two or more subjects will be of assistance in resolving the issue before us.

   The only Maryland case that has construed the constitutional[***15] directives in Article XIV, § 1 is Hillman v. Stockett, 183 Md. 641, 39 A.2d 803 (1944). In Hillman a citizen challenged the so-called Bond Amendment, proposed by Chapter 772 of the Laws of 1943, which sought to amend three sections of and add a new section to Article IV of the Constitution, pertaining to the Judiciary Department.  The petitioner contended that such sweeping changes in Article IV amounted to more than one amendment; that two or more amendments were involved but that they were not submitted in separate bills.  The Court reasoned that:
 
It is also a reasonable conclusion that the framers of the Constitution did not intend, if the Legislature desired to change two or more sections, that each section had to be placed in a separate amendment.  Article XIV does not say so. The sections of the Constitution are interrelated. Many of them are dependent on others.  For instance, in the sections of the judiciary article to be changed by the proposed amendment, Section 14 provides [**1149] that the Court of Appeals shall be composed of the Chief Judges of the first seven of the several judicial circuits of the State, etc.  To find out how these Chief Judges [***16]are named, it is necessary to look at Section 21.  If the Legislature desired, as it did, to submit an amendment changing the composition of the Court of Appeals so that it would be composed, not of Chief Judges, but of specially elected Judges from newly created appellate circuits, it was necessary for it, not only to propose an amendment to Section 14, but also to propose an amendment to Section 21.  This would, in reality, be only one general change, but if it had to be submitted by two separate proposals, one might be adopted, and the other not, with great consequent confusion and disorganization of the Courts. The Constitutional [*294] Convention must be presumed to have realized that this was so, since it divided the Constitution into these sections, which, as we have stated, are interrelated.
What it seems to us was intended, is that the word "amendment" used in Article XIV, § 1, meant a proposal of changes in a particular subject.  . . .
 
The Hillman Court recognized that it would be a violation of § 1 to include two or more different and unrelated subjects in one amendment.  It did not hold that Article XIV, § 1 prevented the General Assembly from proposing[***17] several amendments dealing with the same subject matter for the people's approval at the same election.

   A perusal of the Constitutions of our forty-nine sister states has revealed that no fewer than seventeen of those states have a separate vote requirement similar to Maryland's.  See, Ariz. Const. Art. XXI, § 1; Ark. Const. Art. 19, § 22; Colo. Const. Art. XIX, § 2, Idaho Const. Art. 20, § 2; Ind. Const. Art. XVI, § 2; Iowa Const. Art. 10, § 2; Kan. Const. Art. 14, § 1; Minn. Const. Art. IX, § 1; N.M. Const. Art. XIX, § 1; Ohio Const. Art. XVI, § 1; Okla. Const. Art. XXIV, § 1; Or. Const. Art. XVII, § 1; Pa. Const. Art. XI, § 1; Wash. Const. Art. XXIII, § 1; W. Va. Const. Art. 14, § 2; Wisc. Const. Art. XII, § 1; Wyo. Const. Art. 20, § 2.  The cases decided under these provisions address the separate vote requirement as applied to only one amendment, usually challenged on the same ground as that raised in Hillman.  See, e.g., Kerby v. Luhrs, 44 Ariz. 208, 36 P.2d 549 (1934); Carter v. Burson, supra; Penrod v. Crowley, 82 Idaho 511, 356 P.2d 73 (1960); Fugina v. Donovan, 259 Minn. 35, 104 N.W.2d 911 (1960); In Re Petition No. 314, Okla. 625 P.2d[***18] 595 (1981); Baum v. Newbry, 200 Or. 576, 267 P.2d 220 (1954).

   A leading case on this subject and relied on in several other decisions is Fugina v. Donovan, supra. In Fugina the court considered a contention that one proposed amendment violated Article IX, § 1 of the Minnesota Constitution, to wit: "If two or more amendments are submitted at the same [*295] time, voters shall vote for or against each separately." The proposed amendment would have allowed the legislature to extend the term of any session for not more than 30 days beyond the 90 legislative days and would have permitted legislators to serve as notaries and to seek election to other offices.  Regarding the purpose of the separate vote requirement, the court commented that:
 
The constitutional mandate that multifarious amendments shall be submitted separately has two great objectives.  The first is to prevent imposition upon or deceit of the public by the presentation of a proposal which is misleading or the effect of which is concealed or not readily understandable.  The second is to afford the voters freedom of choice and prevent "logrolling" or the combining of unrelated proposals in order to[***19] secure approval by appealing to different groups which will support the entire proposal in order to secure some part of it although perhaps disapproving of other parts.  [Fugina v. Donovan, supra, 104 N.W.2d at 914.]

   In Re Petition No. 314, supra, is especially instructive since it involves the construction of an Oklahoma constitutional provision that contains a separate bill and a separate vote restriction similar to the Maryland Constitution.  The Oklahoma Constitution [**1150] provides that no proposal for amendment "shall embrace more than one general subject and the voters shall vote separately for or against each proposal submitted." Okla. Const. Art. 24, § 1.  In that case a proposed amendment was challenged as containing more than one general subject.  Construing both the separate subject and separate vote requirements of its constitution at once, the Supreme Court of Oklahoma discussed several of the leading cases around the country on the subject.  It concluded that close "examination reveal[ed] that decisions, whether explicitly stated or not, were based upon judgments by the court as to whether the purposes behind the rule were offended by the particular[***20] proposals." 625 P.2d at 603. The court referred to the dual purposes referred to in Fugina and [*296]concluded that the proposal to change the Oklahoma constitutional restrictions on advertising, franchising, and retailing alcoholic beverages in one amendment both misled the public and constituted logrolling by the legislature and, therefore, struck the proposed amendment involved.

   Hillman, Fugina, and Petition No. 314 cogently illustrate our conclusion that the two restrictions in the Maryland Constitution must be construed together as serving the same objectives and as being directed at the same evils.  Hillman and Petition No. 314 construed both the separate bill and separate vote requirements together, and Petition No. 314 specifically applied the double purposes of the rule enunciated in Fugina to both provisions.  As we noted, Fugina and the cases referred to which interpreted a separate vote constitutional provision were applying such provision where only one amendment was being challenged.  See, Kerby v. Luhrs, supra (one amendment proposing to change taxes on copper mines, taxes on public utilities, and establishing a constitutional commission[***21] on taxes struck down as subjects were not sufficiently interrelated); Carter v. Burson, supra, (one amendment proposing to abolish the constitutional office of State Treasurer and reorganize Executive Department generally upheld as relating to a single subject); Penrod v. Crowley, supra, (one amendment proposing to change selection of justices of the peace to an election process, eliminate a maximum jurisdictional amount in cases tried by justices of the peace, and to change the words "called in question" to "in issue" upheld as involving a common object and purpose.  Indeed the Supreme Court of Oregon in Baum v. Newbry, supra, (construing a separate vote constitutional provision), has held that the separate vote requirement "[a]t most . . . prohibits the submission of two amendments on two different subjects in such manner as to make it impossible for the voters to express their will as to each." Id. at 223 (emphasis supplied).

   As we see it, the single subject and separate vote provisions of Article XIV, Section 1 are constitutional constraints on the legislature when proposing amendments to the Constitution.  The provision, viewed as a whole, is intended to[***22] [*297] require a single amendment to deal with a single subject which may be ratified or rejected by a single vote.  If the proposed changes deal with different or dissimilar subjects and seek to reach different objectives which require amendment, then the legislature must submit these proposals to the electorate so as to allow the electors to vote upon each separately.

   However, when two or more amendments dealing with the same subject are so functionally interrelated that they may have been submitted as one amendment, but, for purposes of highlighting their significance and to avoid confusion of the electorate, are set out individually, and when the connection and interdependence of such amendments are emphasized by making the passage of one contingent on the passage of the other to the effect that the proposals constitute a consistent and workable whole then, in such case, we hold that Article XIV, Section 1 requiring a separate vote on each amendment has not been violated.  The legislature is entrusted with wide discretion in proposing amendments to [**1151] the Constitution and when it does so to make obvious possible hidden side effects and to promote public awareness, [***23] we think it well within its constitutional prerogative.  The Constitution was not intended to curtail such discretion and Article XIV, § 1 does not do so.

   A look at the history behind and changes wrought by Chapters 523 and 524 reveals that these proposals are consistent with the holding just announced. Rather than being deceptive they are integrally related and actually alert the voters to consequences of which they were probably unaware.  Prior to 1975, the Maryland Constitution, Article IV, § 8, guaranteed to all civil law litigants n2 one automatic right of removal from the court in which the suit was initiated to another court having jurisdiction.  It had been the long established practice that the choice of court was left in the discretion of the removing judge. Middleton v. Morgan, 263 Md. 154, 282 A.2d 94 (1971); Marzullo v. Kovens [*298]Furniture Co., 253 Md. 274, 252 A.2d 822 (1969). Since, as we pointed out earlier, Baltimore City has a court structure unique with respect to the rest of the State, with three civil common law circuit level courts, this allowed the transferral of a case from one circuit level court in Baltimore City to another circuit level[***24] court in the City.  See, Middleton v. Morgan, supra; Weiskittle v. State, 58 Md. 155, 158 (1882). However, in the rest of the judicial circuits throughout the state, removal necessarily meant that the case would be transferred to another county.  This disparity was considered and rectified by Davidson v. Miller, 276 Md. 54, 344 A.2d 422 (1975).

n2 Article IV, § 8 of the Constitution does not pertain to equity actions. Olson v. Love, 234 Md. 503, 200 A.2d 66 (1964).

   In Davidson the Court addressed the issue of whether the difference in treatment between removal in Baltimore City and removal in the courts of the rest of the State constituted a violation of the United States Constitution's Fourteenth Amendment Equal Protection Clause.  The Court noted that
 
[t]he object of removal is to get rid of the influence of local prejudice in the community from which the jury to try the case is to come, and thus, as far as practicable, to secure a fair and impartial trial by jury [Davidson v. Miller, [***25] supra, 276 Md. at 77 (quoting from Cooke v. Cooke, 41 Md. 362, 372 (1875).]
 
The Court found no rational basis for the distinction between Baltimore City litigants and those in the rest of the State and thus held Article IV, § 8's provision on automatic removal of causes to be unconstitutional.

   Following closely on the heels of the Davidson decision the Maryland General Assembly enacted Chapter 454 of the Maryland Laws of 1976.  Codified in Maryland Code (1974, 1976 Cum. Supp.), as § 6-204 of the Courts and Judicial Proceedings Article, the statute sought to grant all litigants in specified actions an automatic removal to the court of another county.  Enacted July 1, 1976, the statute was short-lived, as in September, 1976, this Court found that the statute violated Article IV, § 8 of the Maryland Constitution.  Perkins v. Eskridge, 278 Md. 619, 366 A.2d 21 (1976).

   [*299] The essence of the decision in Perkins v. Eskridge, supra, was that, although Article IV, § 8 of the Maryland Constitution had been found to violate the Fourteenth Amendment to the United States Constitution, it retained sufficient vitality to prevent the enactment of any statutory[***26] provision that would conflict with its provisions.  The result was that the automatic right of removal provided for in Article IV, § 8 remained "dormant", Perkins v. Eskridge, supra, 278 Md. at 624, and could not be revived "except by initiation of a new constitutional amendment," Id. at 653, perforce one that would rectify the inequality affected by the structure of the Baltimore City court system.

   During the brief tenure of Courts Article, § 6-204, the Baltimore City courts experienced a bevy of requests for removal and there was no small amount of media attention [**1152] thereby engendered. n3 In a report contained in the files of the Senate Judicial Proceedings Committee on Senate Bill 785 (ultimately Chapter 524) entitled "The Removal Bill," it was noted that Article IV, § 8
 
would automatically be revived by the adoption of a constitutional amendment (such as Senate Bill 784) which, by consolidating the city courts into one circuit court, would remedy the constitutional defect noted in Davidson.  In short, to consolidate the Baltimore City courts is to necessarily revive the absolute right of removal in civil cases.
 
In the view of the Administration, [***27] history clearly demonstrates that such a result would invite the kind of "outrageous abuse" which occurred in 1976 [*300] when the General Assembly attempted, by statute, to restore the absolute right of removal by guaranteeing city litigants a right to remove to a county court.  Specifically, in the two months following the effective date of that legislation, 500 petitions for a change of venue were filed, a torrent of removal petitions which purportedly created a devastating backlog of the Baltimore civil court trial dockets.  Clearly, efficient judicial administration demands that the courts not be subjected to such devastating whims of litigants; absent a showing of cause, a litigant should not be able to remove a case.  In addition, the absolute right of removal was used by some as a means of depriving Baltimore's minority litigants of their opportunity for selecting a jury representative of their standing in that community.
 
For the foregoing reasons, the Administration is committed to achieving court consolidation in Baltimore City without reviving the absolute right of removal. Thus, we have made the effectiveness of each of these constitutional amendments contingent[***28] upon the passage and approval of the other.  [Footnotes omitted.]

n3 See, The Evening Sun, Sept. 1, 1976, at A. 18; The News American, Sept. 1, 1976, at 1; The Sun, Sept. 3, 1976, at A. 14; Baltimore American, Sept. 4, 1976, at 4; The Afro-American, Sept. 11, 1976, at 1, col. 8.  Notably The Evening Sun, Sept. 1, 1976 at A. 18 commented that:
 
in the last two months petitions seeking automatic removal of 500 cases to county courts have been filed.  Prior to July 1, when a change of venue was granted only after the petitioner proved he or she could not get a fair trial, only a few cases were transferred to the counties each year.  If these initial 500 requests are the beginning of a pattern, county courts could become choked with city cases and a major realignment of the state's circuit court judiciary might be required.

   Very clearly, then, history taught and the General Assembly learned that the consolidation of the Baltimore City court system, while ostensibly affecting only Baltimore City, [***29] would, in fact, affect the judicial system throughout the entire state.  The cases decided by this Court, principally Davidson and Perkins, established the connection between the structure of the Baltimore City courts and the right of removal. Moreover, the short but very active life of Courts Article, § 6-204, held the connection up under a spotlight for everyone to see.  For this reason, the passage of Chapters 523 and 524 were made contingent, one upon the other.

   From what we have just seen, it is obvious that the consolidation of the Baltimore City court system and the removal of causes were, in fact, interlocking concepts and were so functionally interrelated as to present a single subject. Both [*301] provisions concern the same Article of the Constitution.  If Chapters 523 and 524 were ratified as a unit, which they were, then the result would be a change in the structure of the Baltimore City court system with only minimal effect on the other jurisdictions in the State.  If, however, only Chapter 523 was ratified then the right of removal would be revived, a result not apparent on the face of the amendment, nor one which the legislature could expect that the[***30] general public would remain aware, with a concomitant deleterious impact on the rest of the courts in the State. If Chapter 523 was not adopted, then the enactment of Chapter 524 would be meaningless, since the right of removal was dormant, due to its constitutional infirmity.

   [**1153] Changes to the Constitution suggested by the legislature "should represent the free and mature judgment of the electors, so submitted that they cannot be constrained to adopt measures of which in reality they disapprove, in order to secure the enactment of others they earnestly desire." Mundell v. Swedlund, 58 Idaho, 209, 71 P.2d 434, 443-44 (1937). Chapters 523 and 524, rather than misleading the public or binding disfavored changes with favorable ones, actually protect the voters from a hidden side effect of the proposed consolidation. Accordingly, we hold that Chapters 523 and 524 do not violate Constitution Article XIV, § 1 and, since they have already been adopted by the voters and proclaimed by the Governor, represent valid amendments to the Maryland Constitution.

   Judgment of the Circuit Court for Anne Arundel County affirmed.

   Richard L. Andrews to pay the costs. 

JOSEPH H. MUNSON COMPANY, INC. v. SECRETARY OF STATE OF THESTATE OF MARYLAND 
No. 42, September Term, 1981
 
Court of Appeals of Maryland
 
294 Md. 160; 448 A.2d 935; 1982 Md. LEXIS 294

 August  5, 1982, Decided

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals.  Circuit Court for  Anne Arundel  County, Lerner, J.

DISPOSITION: Judgment of the Court of Special Appeals reversed, and case remanded to that Court with directions to reverse the judgment of the Circuit Court for Anne Arundel County and remand the case for entry of a judgment consistent with this opinion.  Respondent to pay costs.

CORE TERMS:  solicitation, charitable organization, charitable, First Amendment, fund-raising, fund-raiser, registration, subtitle, ordinance, declaratory judgment, regulation, prior restraint, lack of standing, exemption, administrative remedies, fund raising, free speech, raising, door-to-door, village, street, Fourteenth Amendments, standing to challenge, writ of certiorari, sua sponte, total gross income, cross-appeal, charity, charitable purposes, protected speech

COUNSEL: Yale L. Goldberg, with whom was Mark A. Winkler on the brief, for appellant.

   James G. Klair, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellee.

JUDGES: Murphy, C. J., and Smith, * Digges, Eldridge, [***6] Cole, Davidson and Rodowsky, JJ.  Eldridge, J., delivered the opinion of the Court.

* Digges, 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: [*162] [**936] The principal issue in this case is whether Maryland Code (1957, 1978 Repl. Vol.), Art. 41, § 103D, which places a limit upon the amount of expenses that a charitable organization may pay in connection with fund-raising activity, violates the First Amendment to the United States Constitution.  A second issue concerns the standing of the plaintiff to raise this question.

   [*163] [**937] Art. 41, § 103D, prohibits a charitable organization, in connection with any fund raising activity, from paying or agreeing to pay as expenses more than 25 percent of the gross amount raised.  The statute also states that the Secretary of State shall issue rules and regulations to permit a charitable organization to pay or agree to pay as expenses more than 25 percent of the amount raised where the 25[***7] percent limitation would "effectively prevent the charitable organization from raising contributions." n1 

n1 Art. 41, § 103D (a) and (b), states:
 
"§ 103D. Limitations on amount of payments for solicitation activities.

   (a) A charitable organization other than a charitable salvage organization may not pay or agree to pay as expenses in connection with any fund-raising activity a total amount in excess of 25 percent of the total gross income raised or received by reason of the fund-raising activity.  The Secretary of State shall, by rule or regulation in accordance with the "standard of accounting and fiscal reporting for voluntary health and welfare organizations" provide for the reporting of actual cost, and of allocation of expenses, of a charitable organization into those which are in connection with a fund-raising activity and those which are not.  The Secretary of State shall issue rules and regulations to permit a charitable organization to pay or agree to pay for expenses in connection with a fund-raising activity more than 25% of its total gross income in those instances where the 25% limitation would effectively prevent the charitable organization from raising contributions.

   "The 25% limitation in this subsection shall not apply to compensation or expenses paid by a charitable organization to a professional fund-raiser counsel for conducting feasibility studies for the purpose of determining whether or not the charitable organization should undertake a fund-raising activity, such compensation or expenses paid for feasibility studies or preliminary planning not being considered to be expenses paid in connection with a fund-raising activity.

   "(b) For purposes of this section, the total gross income raised or received shall be adjusted so as not to include contributions received equal to the actual cost to the charitable organization of (1) goods, food, entertainment, or drink sold or provided to the public, nor should these costs be included as fund-raising costs; (2) the actual postage paid to the United States Postal Service and printing expense in connection with the soliciting of contributions, nor should these costs be included as fund-raising costs."

[***8]

   Section 103D is part of a comprehensive subtitle, enacted by Ch. 679 of the Acts of 1976, for the purpose of regulating charitable organizations and charitable solicitations. See [*164] Art. 41, § 103A-103L.  For example, § 103B provides for the registration of charitable organizations with the Secretary of State and the furnishing of detailed financial data to the Secretary.  Under § 103F, one may not act as a professional fund-raiser counsel or a professional solicitor for a charitable organization unless he also registers with the Secretary, furnishes certain information, pays an annual fee, files a bond, and complies with the requirements of the subtitle. Section 103D (c) states that "[e]very contract or agreement between a professional fund-raiser counsel or a professional solicitor and a charitable organization shall be in writing, and a copy of it shall be filed with the Secretary of State within ten days after it is entered into and prior to any solicitations." Under § 103L (a), a charitable organization, professional fund-raiser counsel or professional solicitor is subject to criminal liability for wilfully violating the requirements of the subtitle. n2 Other[***9] sanctions for violating the subtitle are contained in § 103L (b) and (c). n3

n2 Art. 41, § 103L (a) provides (emphasis supplied):

   "(a) A charitable organization, professional fund-raiser counsel, or professional solicitor which wilfully fails to file a registration statement, report, or other information with the Secretary of State or wilfully files such a statement, report, or other information which is materially false, or otherwise wilfully violates the requirements of this subtitle, is guilty of a misdemeanor, and upon conviction, shall be fined not more than $5,000 or sentenced to imprisonment for not more than one year, or be both fined and imprisoned.  An officer, director, partner, or trustee of a charitable organization, professional fund-raiser counsel, or professional solicitor which is organized in corporate, partnership, or other organizational form who causes the entity to commit a wilful violation of this subtitle is also guilty of a misdemeanor, and, upon conviction, is subject to the same penalties as the entity."
n3 Art. 41, § 103L (b) and (c) provides:

   "(b) The Secretary of State is authorized, upon complaint or upon his own motion, to investigate alleged violations of this subtitle. If he finds that a charitable organization, professional fund-raiser counsel, or professional solicitor has violated a provision of this subtitle, he may:

   (1) Cancel and annul the registration of the violator;

   (2) Refer the matter to the Attorney General for civil enforcement under subsection (c); and

    (3) Refer the matter to the appropriate State's attorney for prosecution.

   (c) Upon referral by the Secretary of State, the Attorney General may file a civil action in the Circuit Court for Anne Arundel County for an order restraining further violations of this subtitle, restraining the defendant from conducting any further fund-raising activities in Maryland, enforcing compliance with this subtitle, and such other relief as he deems appropriate.  As a condition of registration, each charitable organization, professional fund-raiser counsel, and professional solicitor shall consent in writing to the jurisdiction and venue of the Circuit Court for Anne Arundel County to grant appropriate relief."

[***10]

   [*165] [**938] The Joseph H. Munson Co., Inc., instituted this action in the Circuit Court for Anne Arundel County, seeking declaratory and injunctive relief against the Secretary of State.  Munson is in the business of promoting fund raising events and giving advice to clients on how those events should be conducted.  In Maryland, Munson's clients consist of various chapters of the Fraternal Order of Police.  In its amended bill of complaint, Munson alleged that it "regularly charges the said chapters of the Fraternal Order of Police an amount in excess of twenty-five percent (25%) of the total gross income of the event which it is involved in promoting." Munson further alleged that it had been in contact with the Secretary of State, and that the Secretary had taken the position "that the Plaintiff is subject to [§ 103D] . . . and that the continued failure to comply therewith will require the Defendant to seek prosecution of the Plaintiff for violation of the said statute." In counts I and II of its five-count amended bill of complaint, n4 Munson sought a declaratory judgment as to whether it was subject to the registration and 25 percent fund-raising limitation provisions[***11] of the statute, as well as injunctive relief.  In count III, Munson prayed a declaratory judgment that § 103D contained an unconstitutional delegation of legislative authority to the Secretary of State.  In count V, Munson sought a declaration that § 103D on its face violates the First and Fourteenth Amendments to the United States Constitution, on the ground that the 25 percent fund-raising limitation unduly intrudes upon Munson's right to free speech and assembly.  Finally, in count IV, Munson asked for an injunction restraining the Secretary from enforcing § 103D.

n4 We note that the use of counts in a bill in equity is inappropriate. Nick-George Ltd. v. Ames-Ennis, Inc., 279 Md. 385, 387 n. 1, 368 A.2d 1001 (1977); Maryland Rule 370 a 1.

   [*166] In its answer, the Secretary did not flatly deny that he had initially threatened Munson with criminal prosecution.  Instead, the Secretary's denial of the allegation concerning threatened prosecution was on the ground that "there had been no determination[***12] concerning the applicability of the statute to the Plaintiff or that he is in violation of the Charitable Solicitation Act." The Secretary sought a dismissal of counts I and II on the ground that Munson had not exhausted administrative remedies created by regulations of the Secretary of State.  Otherwise, the Secretary asserted that § 103D was constitutional.  In a memorandum accompanying the Secretary's answer, the Secretary stated that it "seriously questions Plaintiff's standing to seek a declaratory judgment." In a supplemental memorandum of law, the Secretary argued that Munson lacked standing.

   No testimony was taken in the circuit court.  Instead, according to the opinion of the circuit court, the case was decided on the pleadings, the memoranda of law submitted, and a stipulation of facts.  One of the stipulated facts was that "the Fraternal Order of Police, Montgomery County Chapter, . . . is reluctant to enter into a contract with the Plaintiff . . . for promotion of fund raising events due to the limitation imposed by Article 41, Section 103, . . . that nothing in excess of 25% of the gross income [**939] raised through fund raising activities may be expended on fund[***13] raising expenses." It was also stipulated that Munson's contracts with Fraternal Order of Police Chapters call for a fee for each event in excess of 25% of the net income raised.

   The circuit court dismissed counts I and II of the amended bill of complaint on the ground that Munson had failed to exhaust administrative remedies. With regard to counts III and V, the court issued a detailed opinion and declaratory judgment that § 103D was facially valid, and that it neither amounted to an unconstitutional delegation of legislative authority nor violated the free speech guarantee of the First and Fourteenth Amendments. The court accordingly refused to enjoin enforcement of § 103D.

   Munson took an appeal to the Court of Special Appeals, contending only that § 103D on its face violated the First [*167] and Fourteenth Amendments. The Secretary took no cross-appeal. The (Court of Special Appeals affirmed, Joseph H. Munson Co. v. Sec. of State, 48 Md.App. 273, 426 A.2d 985 (1981). Munson then filed a petition for a writ of certiorari, raising only the free speech issue under the First and Fourteen Amendments, and the Secretary filed a cross-petition, asserting that Munson[***14] lacked standing to challenge the First Amendment validity of § 103D.  We granted both the petition and the cross-petition.

   I. Standing

   A

   Although we granted the Secretary's cross-petition challenging Munson's standing, a preliminary question is raised by Munson as to whether we should consider this issue.  We shall assume that the Secretary properly raised the issue in the circuit court when, in a memorandum of law, it argued that the action should be dismissed for lack of standing. Instead of dismissing the action, however, the trial court in effect upheld Munson's standing and rendered a declaratory judgment on the merits of the constitutional issues presented in counts III and V of the bill of complaint.  Although Munson took an appeal from the declaratory judgment, the Secretary did not file an order of appeal.  Munson argues in this Court that, because of the Secretary's failure to take a cross-appeal on the issue of standing, the issue is not properly before us.

    Under circumstances where absence of standing would present an alternate ground for upholding a trial court's judgment, an appellee is entitled to argue that ground in an appellate court.  Temony v. State[***15] , 290 Md. 251, 261, 429 A.2d 1018 (1981), and cases there cited.  In such situation, a cross-appeal would be unnecessary and, in fact, would be improper.  Offutt v. Montgomery Co. Bd. of Ed., 285 Md. 557, 564, n. 4, 404 A.2d 281 (1979). Moreover, in that situation, even if lack of standing were not raised by the appellee, an appellate court noticing the issue would normally consider it [*168]sua sponte under the principle that a judgment will ordinarily be affirmed on any ground adequately shown by the record, whether or not relied on by the trial court or raised by a party.  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).

   Thus, in the case at bar, if the trial court had dismissed the action on some ground other than lack of standing, the Secretary as appellee would be entitled to argue Munson's alleged lack of standing as an alternate basis for affirmance. However, the trial court did not dismiss the action.  Instead, it rendered a declaratory judgment on the merits.  Munson's alleged lack of standing would not furnish an alternate ground for affirming the declaratory judgment. On the [***16]contrary, the Secretary's argument amounts to an attack upon the judgment.  If the issue is properly before us, and if we agreed that Munson had no standing, we would be obliged to order that the trial court's judgment be reversed and that the case be remanded with directions to dismiss the action.

   Consequently, the Secretary is attempting to challenge the trial court's judgment in this case without having taken an appeal.  A party to a trial court proceeding, [**940] however, is not entitled to seek direct appellate review and reversal of the trial court's judgment unless he has filed a valid, timely order of appeal.  See, e.g., Pearlman v. State, 226 Md. 350, 173 A.2d 733 (1961); Riviere v. Quinlan, 210 Md. 76, 122 A.2d 332 (1956); Gaines v. Lamkin, 82 Md. 129, 33 A. 459 (1895); Hopper v. Jones, Adm'r, 64 Md. 578, 4 A. 273 (1886); Walter v. Second Nat'l Bank of Baltimore, 56 Md. 138 (1881); 2 Poe, Pleading and Practice §§ 823-824 (5th ed. H. Tiffany 1925); Maryland Rules 1010, 1011.  The Secretary, not having filed an order of appeal, may not on appeal attack the trial court's declaratory judgment. Furthermore, the filing of a cross-petition for a writ[***17] of certiorari in this Court cannot overcome the failure of a purported cross-appellant to have taken an appeal from the trial court's judgment.

   While the Secretary is in no position to challenge the trial court's judgment, the standing issue may be that type of question which we will resolve on our own motion.  When a [*169] case is properly before us on an order of appeal and writ of certiorari, we will sua sponte address a narrow category of issues which come to our attention even though not raised by an appellant, and which may require a reversal of the judgment below.  This category includes the jurisdiction of the intermediate appellate court, the jurisdiction of the trial court, and the certain fundamental questions of policy relating to the trial court's exercise of jurisdiction.  See, e.g., Creamer v. Helferstay, 294 Md. 107, 448 A.2d 332 (1982) (authority of the trial court to grant a particular type of relief); Sec., Dep't of Human Res. v. Wilson, 286 Md. 639, 644-645, 409 A.2d 713 (1979) (failure to exhaust administrative remedies); Attorney Gen. v. A. A. Co. School Bus, 286 Md. 324, 407 A.2d 749 (1979) (mootness); Biro v. Schombert, 285 Md. 290, 293, [***18] 402 A.2d 71 (1979) (jurisdiction of the Court of Special Appeals); Reyes v. Prince George's County, 281 Md. 279, 282-283, 380 A.2d 12 (1977) (whether suit is collusive); Hartford County v. Schultz, 280 Md. 77, 371 A.2d 428 (1977) (whether there is an "actual controversy" between contending parties within the meaning of the Declaratory Judgments Act); State v. McCray, 267 Md. 111, 126, 297 A.2d 265 (1972) (subject matter jurisdiction of the trial court).  See also Smith v. Taylor, 285 Md. 143, 147, 400 A.2d 1130 (1979) (jurisdiction of this Court).

   Several Maryland cases, however, indicate that questions concerning the plaintiff's standing to maintain the action do not fall within this category. They take the position that, if the plaintiff's alleged lack of standing is not properly raised by the defendant, an appellate court will not consider the matter.  See Toomey v. Gomeringer, 235 Md. 456, 460-461, 201 A.2d 842 (1964); Costello v. Seiling, 223 Md. 24, 29, 161 A.2d 824 (1960); Pressman v. Baltimore, 222 Md. 330, 334, 160 A.2d 379 (1960); Baltimore v. N.A.A.C.P., 221 Md. 329, 332, 157 A.2d 433 (1960); Pumphrey v. Pumphrey, 11 Md.App. 287, 292-293, [***19]273 A.2d 637 (1971). On the other hand, some cases seem to suggest that the standing of a plaintiff to maintain an action is an issue which an appellate court will address on its own motion.  Reyes v. Prince George's [*170]County, supra, 281 Md. at 287-289; Ginn v. Farley, 43 Md.App. 229, 232, 403 A.2d 858 (1979), cert. denied sub nom. Engel v. Farley, 286 Md. 747 (1980); Balance Limited, Inc. v. Short, 35 Md.App. 10, 11, 368 A.2d 1116 (1977). See also Craig v. Boren, 429 U.S. 190, 192-194, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). The rationale for this view would appear to be that, if a plaintiff lacks standing, there may be no "interested parties" asserting adverse claims, and thus there may be no "justiciable controversy," which is a matter regularly noticed by appellate courts sua sponte. Reyes v. Prince George's County, supra, 281 Md. at 288; Harford County v. Schultz, supra. See also Patuxent Co. v. Commissioners, 212 Md. 543, 548-549, 129 A.2d 847 (1957). n5

n5 "Standing," of course, does involve principles beyond the requirement of a "justiciable controversy." Craig v. Boren, 429 U.S. 190, 193-194, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); Eisenstadt v. Baird, 405 U.S. 438, 443-445, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972).

[***20]

   [**941] Whether there is a conflict among the above-cited cases, and whether Munson's standing is an issue properly before us, are questions which need not be resolved in the present case.  If we assume for purposes of argument that the issue is before us despite the Secretary's failure to take a cross-appeal, the result will be no different, for we believe that Munson clearly had standing to challenge the facial constitutionality of Art. 41, § 103D.

   B

   The Secretary's contention that Munson has no standing to attack the constitutionality of § 103D seems to have two related prongs.  First, the Secretary argues that § 103D only applies to charitable organizations and there has been no final administrative determination that the various chapters of the Fraternal Order of Police with which Munson contracts are charitable organizations within the meaning of § 103D.  Munson, according to the Secretary, failed to exhaust its administrative remedies in this regard.  Second, the Secretary contends that even if the Fraternal Order of [*171] Police chapters are charitable organizations, Munson may not assert their First Amendment rights.

   However, Munson has clearly suffered injury[***21] as a result of § 103D, as the stipulation of facts in the trial court was that the Montgomery County Chapter of the Fraternal Order of Police would not contract with Munson for promotion of fund-raising events because of the 25 percent limitation imposed by § 103.

   Futhermore, Munson alleged that the Secretary had been in contact with Munson's counsel, had taken the position that Munson is subject to § 103D, and had stated that, if Munson failed to comply with the statute, the Secretary would seek prosecution of Munson.  The Secretary's denial of this allegation was because there had been no final determination by the Secretary concerning the applicability of the statute to Munson or whether Munson was in violation of § 103D.  Thus, the Secretary is essentially arguing a failure to exhaust administrative remedies. We have consistently held, however, that when one is attacking the validity of a statute on its face, rather than a particular application of the statute, administrative remedies ordinarily need not be exhausted.  National Asphalt v. Prince Geo's Co., 292 Md. 75, 77, n. 2, 437 A.2d 651 (1981); Shipp v. Bevard, 291 Md. 590, 599, 435 A.2d 1114 (1981); Harbor [***22] Island Marina v. Calvert Co., 286 Md. 303, 308-309, 407 A.2d 738 (1979), and cases there cited.

   The contention that Munson may not assert the First Amendment rights of the Fraternal Order of Police Chapters with which Munson normally contracts, is also without merit.  Although ordinarily one may not assert the constitutional rights of others, nevertheless where a statute is directed at persons with whom the plaintiff has a business or professional relationship, and impairs the plaintiff in that relationship with such other persons, thereby threatening real and immediate injury to the plaintiff, he is normally accorded standing to challenge the validity of the statute.  Craig v. Boren, supra, 429 U.S. at 194-197; Singleton v. Wulff, 428 U.S. 106, 112-118, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 35 [*172] L.Ed.2d 201 (1973); Eisenstadt v. Baird, 405 U.S. 438, 443-446, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Griswold v. Connecticut, 381 U.S. 479, 481, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Pierce v. Society of Sisters, 268 U.S. 510, 535-536, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Baltimore v. A. S. Abell Co.,[***23] 218 Md. 273, 281-282, 145 A.2d 111 (1958).

   Finally, an argument similar to that which the Secretary makes here was rejected in Schaumburg v. Citizens For Better Environ., 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980), also involving a challenge to a charitable solicitation statute imposing a limitation like that in Art. 41, § 103D.  In [**942]Schaumburg, the soliciting organization (CBE) had obtained summary judgment declaring the statute void and enjoining its enforcement.  The defendant argued in the Supreme Court that summary judgment was inappropriate because "there was an unresolved factual dispute concerning the true character of CBE's organization" and that the defendant should have had an opportunity to show that CBE "may appropriately be deemed an organization existing for private profit rather than for charitable purposes." 444 U.S. at 633. In rejecting this argument, the Supreme Court stated (id. at 633-634) (footnote omitted):

   "We agree with the Court of Appeals that CBE was entitled to its judgment of facial invalidity if the ordinance purported to prohibit canvassing by a substantial category of charities to which the 75-percent limitation could [***24]not be applied consistently with the First and Fourteenth Amendments, even if there was no demonstration that CBE itself was one of these organizations.  Given a case or controversy, a litigant whose own activities are unprotected may nevertheless challenge a statute by showing that it substantially abridges the First Amendment rights of other parties not before the court.  Grayned v. City of Rockford, 408 U.S. 104, 114-121 (1972); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); Schneider v. State, 308 U.S., at 162-165; Lovell v. Griffin, 303 U.S., at 451; [*173] Thornhill v. Alabama , 310 U.S. 88, 97 (1940). See also the discussion in Broadrick v. Oklahoma, 413 U.S. 601, 612-616 (1973); and in Bigelow v. Virginia, 421 U.S. 809, 815-817 (1975). In these First Amendment contexts, the courts are inclined to disregard the normal rule against permitting one whose conduct may validly be prohibited to challenge the proscription as it applies to others because of the possibility that protected speech or associative activities may be inhibited by the overly broad reach of the statute."
 
We hold, therefore, that Munson had standing to challenge the facial[***25] validity of § 103D.

   II. Constitutionality Of § 103D

   In our view, the Supreme Court's opinion in Schaumburg v. Citizens For Better Environ., supra, is also dispositive of the merits, and requires a declaration that § 103D is unconstitutional under the First and Fourteenth Amendments.

   Schaumburg involved a municipal ordinance which required that every charitable organization intending to solicit contributions in the village "'by door-to-door solicitation or the use of public streets and public ways, shall prior to such solicitation apply for a permit.'" 444 U.S. at 623. The permit application had to contain satisfactory proof "'that at least seventy-five percent of the proceeds of such solicitation will be used directly for the charitable purpose of the organization.'" Id. at 624. CBE, an environmental organization which solicited contributions from door-to-door, and which could not demonstrate that it would use 75 percent of the receipts for charitable purposes, brought an action for declaratory and injunctive relief.

   The Supreme Court in Schaumburg held that the expense limitation provision of the ordinance, requiring that 75 percent of the funds collected[***26] be used for charitable purposes, violated the free speech clause of the First Amendment, [*174] applicable to state legislation under the Fourteenth Amendment.  In reaching this conclusion, the Court rejected the Village's argument that charitable solicitation is not "speech" protected by the First Amendment as long as the charity is free to propagate its views.  The Court discussed and relied on several cases holding that charitable, religious or other solicitation is protected by the First Amendment. Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939); Cantwell v. Connecticut, 310 U.S. 296, [**943] 60 S.Ct. 900, 84 L.Ed. 1213 (1940); Jamison v. Texas, 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869 (1943); Largent v. Texas, 318 U.S. 418, 63 S.Ct. 667, 87 L.Ed. 873 (1943); Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943); Martin v. Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943); Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (1945); Hynes v. Mayor of Oradell, 425 U.S. 610, 96 S.Ct. 1755, 48 L.Ed.2d 243 (1976). The Court also relied on Valentine v. Chrestensen, 316 U.S. 52, 62[***27] S.Ct. 920, 86 L.Ed. 1262 (1942), and Breard v. Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233 (1951), involving commercial solicitation, with the Court noting (444 U.S. at 632-633, n.7) that today, under Va. Pharmacy Board v. Va. Consumer Counsel, 425 U.S. 748, 758-759, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976), commercial speech is not excluded from First Amendment protections. After reviewing these cases, the Court stated (444 U.S. at 632):

   "Prior authorities, therefore, clearly establish that charitable appeals for funds, on the street or door to door, involve a variety of speech interests -- communication of information, the dissemination and propagation of views and ideas, and the advocacy of causes -- that are within the protection of the First Amendment. Soliciting financial support is undoubtedly subject to reasonable regulation but the latter must be undertaken with due regard for the reality that solicitation is characteristically intertwined with informative and perhaps persuasive speech seeking support for particular [*175] causes or for particular views on economic, political, or social issues, and for the reality that without solicitation the flow[***28] of such information and advocacy would likely cease."
 
The Court then set forth what it regarded as the issue in the case (Id. at 633): 

   "The issue before us, then, is not whether charitable solicitations in residential neighborhoods are within the protections of the First Amendment. It is clear that they are.  '[O]ur cases have long protected speech even though it is in the form of . . . a solicitation to pay or contribute money, New York Times Co. v. Sullivan [376 U.S. 254 (1964)].' Bates v. State Bar of Arizona, 433 U.S., at 363.

   "The issue is whether the Village has exercised its power to regulate solicitation in such a manner as not unduly to intrude upon the rights of free speech."

   In considering whether the expense limitation unduly intruded upon free speech, the Court in Schaumburg characterized "the 75-percent limitation [as] . . . a direct and substantial limitation on protected activity that cannot be sustained unless it serves a strong, subordinating interest that the Village is entitled to protect." 444 U.S. at 636. Pointing out that prevention of fraud was the Village's principal justification (ibid.), the Court stated that many [***29]charitable organizations may use more than 25 percent of the receipts for salaries, research, etc., and that a governmental body "consistently with the First Amendment, may not label such groups 'fraudulent' and bar them from canvassing," id. at 636-637. The Court, in striking down the ordinance, concluded that the "legitimate interest in preventing fraud can be better served by measures less intrusive than a direct prohibition on solicitation. Fraudulent misrepresentations can be prohibited and penal [*176] laws used to punish such conduct directly." Id. at 637. n6

 n6 The Court in Schaumburg also pointed out that requiring public "disclosure of the finances of charitable organizations also may assist in preventing fraud by informing the public of the ways in which their contributions will be employed." 444 U.S. at 638.

   The Secretary of State argues that the instant case is distinguishable from Schaumburg in two significant respects.  It is contended that, in light of these two distinctions, [***30] the 25 percent expense limitation in § 103D is valid under the principles set forth in Schaumburg.

   [**944] A

   First, the Secretary states that Schaumburg involved a "prior restraint" upon charitable solicitation, as solicitation from door-to-door or solicitation using the public streets was absolutely prohibited unless a permit was first obtained. Under § 103D, the Secretary's argument continues, solicitation is permitted without having to obtain a permit from an administrative official.  The Secretary asserts "that the Maryland statute does not impose any prior restraints on the solicitation and collection of funds." (Brief, p. 11). According to the Secretary, it is only when the solicitation is in violation of the statute that it becomes prohibited and subject to the criminal penalty in § 103L(a).  The Secretary, in oral argument before us, urged that the criminal penalty under the Maryland statute was the type of criminal sanction to prevent fraud of which the Supreme Court approved in Schaumburg.

   Preliminarily, with regard to the matter of "prior restraint," we point out that the distinction between the two statutes is not as clear-cut as the Secretary's[***31] argument seems to suggest.  It is not a situation where one statute involves complete prior restraint upon charitable solicitation whereas the other statute involves no prior restraint. In fact, the Maryland Act would seem to involve a much more sweeping "prior restraint" upon protected speech than the Schaumburg ordinance. The Schaumburg [*177] ordinance required a permit only to solicit from door-to-door or by using the public streets. No permit was required for other types of charitable solicitation. Under the Maryland statute, before any charitable organization, professional fund-raiser counsel or professional solicitor is entitled to engage in any form of charitable solicitation, it must first submit an application to register with the Secretary of State, submit information under oath, pay a fee, and meet other requirements.  Art. 41, §§ 103B and 103F.  Furthermore, under § 103F (d), no solicitation may begin until the Secretary "shall approve the registration" of a professional fund raiser counsel or professional solicitor.  And he is only to approve such registration if he finds that the application is in conformity with the requirements of the subtitle[***32] as well as the rules and regulations of the Secretary.  Ibid. n7 It would [*178] seem that the difference [**945]between a "permit" issued by an administrative official and an "approval" of a registration application issued by an administrative official is purely a semantic one.

 n7 Art. 41, § 103F, provides as follows:
 
"§ 103F. Registration of professional fund-raiser counsel and professional solicitor; bonds.

   (a) A person may not act as a professional fund-raiser counsel or professional solicitor for a charitable organization unless he has first registered with the Secretary of State.  Applications for registration shall be in the form prescribed by the Secretary of State, shall contain the information required by him, and shall be under oath.  The application for registration by a professional fund-raiser counsel or a professional solicitor or renewal of it shall be accompanied by an annual fee of $100.  A partnership, corporation or other entity which intends to act as a professional fund-raiser counsel or professional solicitor, may register for and pay a single fee of $100 on behalf of all its members, officers, agents, and employees.  However, the names and addresses of all officers, agents, and employees, of the professional fund-raiser counsel or professional solicitor, and all other persons employed to work under its direction must be listed in the application.

   (b) Every professional fund-raiser and professional solicitor shall, at the time of making application, file with and have approved by the Secretary of State a bond in which the applicant shall be the principal obligor in the sum of ten thousand dollars ($10,000) with one or more sureties satisfactory to the Secretary of State, whose liability in the aggregate as such sureties will at least equal the sum and maintain the bond in effect so long as a registration is in effect.  The bond shall run to the State of Maryland for the use of the State and any person who may have a cause of action against the obligor of the bonds for any losses resulting from malfeasance, nonfeasance or misfeasance in the conduct of solicitation activities.  A partnership or corporation which is a professional fund-raiser may file a consolidated bond on behalf of all its members, officers and employees.

   (c) Each registration is valid for one year and may be renewed for additional one-year periods upon application to the Secretary of State, payment of the renewal fee, and proof that the required bond, cash, or cash equivalent is and will remain in effect.

   (d) If the Secretary of State finds that the application is in conformity with the requirements of this section and the rules and regulations adopted pursuant to it, and that the registrant has complied with the requirements of this subtitle and the rules and regulations adopted pursuant to it, he shall approve the registration. An applicant whose application for registration is denied, may within 30 days from the date of notification of the denial, request in writing a hearing before the Secretary of State.  A hearing shall be held within 60 days from the date the Secretary of State receives the request."

[***33]

   The Maryland statute involves a "prior restraint" upon speech in other respects.  Under § 103D (c), every contract between a charitable organization and a professional fund-raiser counsel or professional solicitor must be submitted to the Secretary of State within ten days of the contract.  A charity which contracts with a professional fund-raiser counsel or professional solicitor to pay as expenses more than 25 percent of the gross income raised, must under § 103D obtain a "permit" from the Secretary of State before charitable solicitation under the contract can begin.

   Another example of prior restraint is found in § 103L (b) and (c).  Under that section, if the Secretary believes that a charitable organization, professional fund-raiser counsel or professional solicitor has violated a provision of the subtitle, he may cancel the alleged violator's registration, or he may refer the matter to the Attorney General who is authorized to seek a court order "restraining the defendant from conducting any further fund-raising activities in Maryland."

   Apart from the degree of "prior restraint" in the Maryland statute, we do not believe that, in the context here, there is any merit in[***34] the distinction drawn by the Secretary between "prior restraint" of a form of speech and criminal sanctions for engaging in a form of speech.  In Schaumburg, the Court [*179] clearly held that charitable solicitation for funds is protected speech within the meaning of the First Amendment, and that a 25 percent limit upon the amount that could be paid for expenses unduly intruded upon the right of free speech. The Court in no way suggested that enforcement of this limitation by a criminal sanction, as opposed to a permit requirement, would make it substantially less an intrusion upon free speech. On the contrary, in reaching its conclusion, the Supreme Court relied on several cases involving criminal sanctions for solicitation rather than permit requirements.  See Hynes v. Mayor of Oradell, supra, 425 U.S. at 612-613; Breard v. Alexandria, supra; Martin v. Struthers, supra; Jamison v. Texas, supra; Valentine v. Chrestensen, supra.

   Lastly, it is clear that the criminal penalty for exceeding the 25 percent expense limitation, Art. 41, § 103D, is not the type of criminal penalty for fraud which the Supreme Court sanctioned in Schaumburg.  The Secretary argues that[***35] the 25 percent expense limitation protects "the citizenry of Maryland from sham and fraud." (Brief, p. 18.) However, under the Maryland statute, if one fails to meet the 25 percent limitation in a charitable solicitation and has not obtained a permit from the Secretary waiving the limitation, he is criminally liable regardless of whether he has made fraudulent misrepresentations.  The Supreme Court in Schaumburg, when it indicated that "less intrusive means" to prevent fraud could be used than a prohibition on solicitation if less than 75 percent went to charitable purposes, stated that "[f]raudulent misrepresentations can be prohibited and penal laws used to punish such conduct directly." 444 U.S. at 637. Obviously the Court was referring to a statute punishing only fraudulent misrepresentations, and not a statute punishing non-fraudulent solicitations if the expenses exceeded a particular percentage.

   B

   The second distinction between Schaumburg and the instant case, which the Secretary argues is constitutionally [*180] significant, is that the Schaumburg ordinance contained [**946] no exception to the 25 percent expense limitation, whereas § 103D (a) directed[***36] the Secretary to "issue rules and regulations to permit a charitable organization to pay or agree to pay for expenses in connection with a fund-raising activity more than 25% of its total gross income in those instances where the 25% limitation would effectively prevent the charitable organization from raising contributions." Because of this exception in § 103D, the Secretary argues that the Maryland statute is more flexible and "regulates First Amendment freedom of speech in such a way as to minimize encroachment on individual rights," (brief, p. 18).

   The argument that the 25 percent expense limitation in § 103D represents substantially less an intrusion upon First Amendment rights than the Schaumburg ordinance, is difficult to accept, considering that the Schaumburg ordinance was limited to solicitations from door-to-door and those using the public streets, whereas § 103D embraces all charitable solicitations including telephone solicitations, mail solicitations, speeches at meetings held in private places as well as public, etc.

   Moreover, the exemption in the Maryland statute is not an exemption by virtue of the statute alone; instead the Secretary of State is directed[***37] to issue regulations to provide for such exemption and to issue permits.  Permit requirements to engage in protected solicitation, even with guidelines for the issuing administrative officials, were invalidated in several prior cases relied upon by the Supreme Court in Schaumburg.  See Largent v. Texas, supra; Cantwell v. Connecticut, supra; Schneider v. State, supra.

   Finally, the authorization for exemption regulations in the Maryland statute is extremely narrow.  The Secretary, in promulgating regulations for permits waiving the 25 percent expense limitation, is confined to "those instances where the 25% limitation would effectively prevent the charitable organization from raising contributions." Art. 41, § 103D.  In Schaumburg, however, the Court did not limit its [*181] concern to organizations which could not raise contributions without exceeding the 25 percent expense limitations.  Rather, the Court clearly indicated that charitable organizations making a policy decision to use more than 25 percent of the proceeds raised for purposes other than "charitable," had a constitutional right to do so, that all such organizations could not be lumped with those engaging[***38] in fraud, and that the governmental body may implement its legitimate interests in preventing fraud only "by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendment freedoms." 444 U.S. at 637.

   We conclude that the limited provision in § 103D, directing the Secretary to promulgate regulations for waiver permits in those instances where the 25 percent limitation would "effectively prevent the charitable organization from raising contributions," does not save the section under the Schaumburg opinion. n8

n8 Both the Court of Special Appeals and the circuit court, in upholding § 103D, relied on the pre-Schaumburg decision of the United States Court of Appeals for the Fifth Circuit in National Foundation v. City of Fort Worth, 415 F.2d 41 (5th Cir. 1969), cert. denied, 396 U.S. 1040, 90 S.Ct. 688, 24 L.Ed.2d 684 (1970). In that case, the Fifth Circuit upheld an ordinance which contained a presumption that solicitation expenses exceeding 20 percent of the amount raised were "unreasonable," although one could show that under the circumstances expenses higher than 20 percent "were not unreasonable." The statute also contained many other exemptions from the regulations of charitable solicitations, and thus from the expense limitation.  The Supreme Court in Schaumburg, without indicating approval or disapproval of the Fifth Circuit's decision, noted that it was distinguishable.  444 U.S. at 635-636. We need not in this case decide whether National Foundation can be squared with the principles set forth in Schaumburg, because the ordinance involved in National Foundation was quite different than § 103D.  In that case, the ordinance itself contained much broader exemptions from the expense limitation.  See also Fernandes v. Limmer, 663 F.2d 619, 630-632 (5th Cir. 1981) (applying Schaumburg to invalidate a statute imposing an expense limitation on charitable solicitations, and distinguishing National Foundation because of the exemptions in the ordinance involved in that case).

[***39]

   [**947] Upon remand, the circuit court should enter a judgment declaring that Art. 41, § 103D (a) and (b), is invalid under the First Amendment to the United States Constitution.  The [*182] court should also enjoin the enforcement of subsections (a) and (b) of § 103D.

   Judgment of the Court of Special Appeals reversed, and case remanded to that Court with directions to reverse the judgment of the Circuit Court for Anne Arundel County and remand the case for entry of a judgment consistent with this opinion.

   Respondent to pay costs. 

SYLVESTER E. HARPER v. AMARYLLIS M. HARPER 
No. 92, September Term, 1981
 
Court of Appeals of Maryland
 
294 Md. 54; 448 A.2d 916; 1982 Md. LEXIS 286

 July  23, 1982, Decided

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals.  Circuit Court for  Anne Arundel  County, Lerner, J.

DISPOSITION: Judgment of the Court of Special Appeals reversed in part.  Case remanded to that Court with instructions to reverse in part the judgment of the Circuit Court for Anne Arundel County and to remand the case to that Court for further proceedings in accordance with this opinion.  Costs to be equally divided.

CORE TERMS:  marriage, marital property, spouse, marital, nonmarital, real property, marital residence, equitable, separate property, non-marital, community property, inception, property acquired, contributed, nonmonetary, monetary, acquisition, expenditure, ownership, Maryland Act, appreciation, purchase price, divorce, mortgage, partition, Domestic Relations Laws, entitled to compensation, increase in value, additionally, constructed

COUNSEL: Jeffrey Lee Greenspan for appellant.

   Steven R. Migdal, with whom were Manis, Wilkinson, Snider & Goldsborough, Chartered on the brief, for appellee.

JUDGES: Smith, Eldridge, Cole, Davidson and Rodowsky, JJ., and J. Dudley Digges, Associate Judge of the Court of Appeals retired, specially assigned.  Davidson, J., delivered the opinion of the Court.

OPINIONBY: DAVIDSON

OPINION: [*55] [**917] This case presents two questions concerning the characterization and equitable distribution of certain property as marital property under Maryland Code (1974, 1980 Repl. Vol.) § 3-6A-01 (e) of the Courts and Judicial Proceedings [*56] Article.  More particularly, it initially presents the question whether real property, purchased under an installment contract and paid for in part before marriage and in part during marriage, is marital property. Additionally, it presents the question whether a marital residence constructed on that real property during marriage is marital property. 

   The relevant statutory provisions are § 3-6A-01 (e) and § 3-6A-05 (a), (b), and (c).

   Section 3-6A-01 (e) [***5] provides:
 
"'Marital property' is all property, however titled, acquired by either or both spouses during their marriage. It does not include property acquired prior to the marriage, property acquired by inheritance or gift from a third party, or property excluded by valid agreement or property directly traceable to any of these sources." (Emphasis added.)

   Section 3-6A-05 (a) provides in pertinent part:

   "(a) In granting an absolute divorce or annulment . . . the court shall determine which property is marital property if the division of property is an issue." (Emphasis added.)

   Section 3-6A-05 (b) and (c) provide:

   "(b) The court shall determine the value of all marital property.  After making the determination, the court may grant a monetary award as an adjustment of the equities and rights of the parties concerning marital property, whether or not alimony is awarded.  The amount of the [**918] award and the method of its payment shall be determined after considering each of the following factors:

   "(1) The contributions, monetary and non-monetary, of each party to the well-being of the family;

   [*57] "(2) The value [***6]  of all property interests of each spouse;

   "(3) The economic circumstances of each spouse at the time the award is to be made;

   "(4) The circumstances and facts which contributed to the estrangement of the parties;

   "(5) The duration of the marriage;

   "(6) The age and the physical and mental condition of the parties;

   "(7) How and when specific marital property was acquired, including the effort expended by each party in accumulating the marital property;

   "(8) Any award or other provision which the court has made under this Subtitle 6A with respect to family use personal property or the family home, and any award of alimony; and

   "(9) Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.
 
   "(c) A monetary award made under this section may be reduced to a judgment to the extent that any part of the award is due and owing." (Emphasis added.)

   In 1950 the petitioner, Sylvester E. Harper (husband), then unmarried, purchased an unimproved parcel of real property for a purchase price of approximately $355.00.  The purchase was made under a land installment contract requiring a monthly payment of approximately[***7] $6.90.  Before his marriage, the husband made all of the payments that came due.

   On 3 November 1951, the husband married the respondent, Amaryllis M. Harper (wife).  During the marriage, the husband continued to make all of the payments that came due until all of the requisite payments had been made.

   In 1967 the husband personally built a house, costing [*58] approximately $21,600.00, upon the real property. That house was used by the parties as their marital residence. Although the wife's name appeared on the mortgage and she was legally obligated under it, the husband made all of the mortgage payments that came due on the marital residence. Additionally, the husband paid for all of the expenses associated with the upkeep and repair of the marital residence.

   According to the wife, a substantial part of the payment on a previous house jointly owned by the parties was provided by her mother, and the proceeds of the sale of that house were used to finance the construction of the marital residence built in 1967.  According to the husband's pleadings, he made all of the payments for the land, construction of the marital residence, and its upkeep.  At all times, the property[***8] was titled solely in the husband's name.

   On 14 March 1980, in the Circuit Court for Anne Arundel County, the wife filed a bill of complaint for an absolute divorce. She requested, among other things, "that the Court determine the ownership of all the real property regardless of how titled, and order the sale of said real property, and divide the proceeds equitably."

   At trial, there was evidence to show that there was an outstanding mortgage indebtedness of approximately $8,300.00 on the marital residence which was then appraised at a fair market value of approximately $65,500.00.  There was no evidence to show the precise source and extent of the funds utilized during the marriage for payments for the land, construction of the marital residence, and its upkeep.

   On 10 November 1980, a decree was entered granting the wife, among other things, an absolute divorce and a division of real property. More particularly, the trial court declared that the real property consisting of the lot with the marital residence upon it was marital property and ordered a sale in lieu of partition with each party receiving one-half of the proceeds of the sale.  In reaching this result, the trial court[***9] said:
 
[**919] "In making a determination of ownership of real [*59] property under the applicable statutes upon granting a decree of divorce, the Court is guided by several factors including the contributions, both monetary and nonmonetary, made by each party to the well-being of the family; the value of the property interests of each spouse; the circumstances contributing to the estrangement of the parties; the duration of the marriage; the age and physical condition of the parties; and how and when the specific marital property was acquired.  In this case, it is true that the Respondent provided the bulk of financial contributions toward acquiring the real property in question, however, the Complainant, as a wife and mother of some twenty-nine (29) years, made substantial nonmonetary contributions toward the marriage and the family during the time the said real property was acquired.  Furthermore, this Court notes that the estrangement of the parties stemmed from the Respondent's cruel and abusive conduct toward the Complainant resulting in a divorce a mensa for constructive desertion.  The length of the marriage in this case is considerable, spanning twenty-nine[***10] years of the parties' lives.  The Court has also weighed the other factors mentioned above and concludes that the real property in question is marital property in which each spouse is entitled to a one-half share.  For this reason the Court shall order a sale in lieu of partition of the said real property with an equitable distribution of the proceeds as prayed for by the Complainant."

   The husband appealed to the Court of Special Appeals.  Harper v. Harper, 49 Md. App. 339, 431 A.2d 761 (1981). In determining that the real property and marital residence were marital property, the Court of Special Appeals said:

   "The thrust of appellant's argument on this issue is that since he acquired the lot, upon which the house was built, before the marriage, and since the house constituted a permanent improvement [*60] thereto, both the house and lot do not meet the statutory definition of marital property and thus the chancellor erred in concluding that this property was marital property. We disagree.

   "With respect to the lot, while Mr. Harper had equitable title thereto prior to the marriage, see Kinsey v. Drury, 146 Md. 227, 126 A. 125 (1924), Kingsley v. Makay, 253[***11] Md. 24, 251 A.2d 585 (1969), it is clear that he acquired legal title after the marriage. It would appear, in fact, that since the marriage took place within a year of his execution of the land installment contract, the bulk of payment thereon took place after the marriage. In our view the lot was acquired during the marriage within the meaning of Cts. Art. Sec. 3-6A-01. n3

   "With respect to the house built on the lot, after the parties had been married some sixteen years, it constituted a permanent improvement upon the lot; in fact, title in Mr. Harper's name was never changed although the parties talked about making that change.  Having concluded the chancellor was correct in finding the lot to be marital property, it necessarily follows that the house erected thereon after the marriage of the parties would likewise, under the facts present here, be marital property. Indeed, not to conclude thusly would frustrate the very purpose of the marital property distribution act.  . . ." Harper, 49 Md.App. at 345-46, 431 A.2d at 764.
 
In footnote 3, the Court of Special Appeals said:

   "3. See State Roads Commission v. Orleans, 239 Md. 368, 376-377, 211 A.2d 715 [***12] (1965), in which the Court of Appeals, in a condemnation case, held that the word 'acquire' means to become an owner of real property by obtaining legal title, rather than mere possession.

    "See also, Levi, The Tax Consequences of the Maryland Marital Property Act, 9 U. Balt. L. Rev. [*61] 12, 15-16 n.17 (1979), discussing the argument that real property owned by a spouse prior to marriage but subject to a mortgage, may be deemed marital property if the mortgage is paid off with marital property funds." Harper, 49 Md.App. at 345, 431 A.2d at 764.
 
[**920] Thus, the Court of Special Appeals found, for reasons different from those expressed by the trial court, that the real property and the marital residence upon it constituted marital property. That Court additionally found that the trial court erred in ordering sale in lieu of partition. n1 Accordingly, the Court of Special Appeals vacated the trial court's judgment "only insofar as it provides for sale in lieu of partition and for distribution . . . ." n2 That Court directed that "[u]pon remand the chancellor should follow the guidelines provided in Sec. 3-6A-05 (b) of the Courts Article." In all other respects, [***13] the Court of Special Appeals affirmed the trial court's judgment.

n1 Section 3-6A-04 provides:

   "(a) When granting an absolute divorce or annulment, the court may resolve any dispute between the spouses with respect to the ownership of real property. However, the court may not transfer the ownership of real property from one spouse to the other.

   "(b) In accordance with the court's determination of the ownership of real property, the court may:

   "(1) Grant a decree which states what the ownership interest of each spouse is; and

   "(2) As to any jointly owned property, order a partition or sale in lieu of partition and a division of the proceeds."
n2 The question of the validity of the trial court's order of partition and distribution has not been raised in this Court and, therefore, is not considered here.

   The husband filed a petition for a writ of certiorari that we granted.  We shall reverse in part the judgment of the Court of Special Appeals.

   Maryland's Property Disposition in Divorce[***14] and Annulment Act (Act), Md. Code (1974, 1980 Repl.Vol. & 1981 Cum.Supp.) §§ 3-6A-01 through 3-6A-07 of the Courts and Judicial Proceedings Article represents "a new legislative approach to the concept of marriage." Deering v. [*62] Deering, 292 Md. 115, 122, 437 A.2d 883, 887 (1981). The Act was proposed by The Governor's Commission on Domestic Relations Laws which stated in its report to the Governor:

   "The Commission does not believe that the people of Maryland today hold the view that a spouse whose activities within the marriage do not include the production of income has 'never contributed anything toward the purchase of' property acquired by either or both spouses during the marriage.  Its members believe that non-monetary contributions within a marriage are real and should be recognized in the event that the marriage is dissolved or annulled.  As homemaker and parent and housewife and handyman (of either sex), as a man and a woman having equal rights under the law united into one family unit, in which each owes a duty to contribute his or her best efforts to the marriage, the undertakings of each are for the benefit of the family unit.  In most cases, each spouse[***15] makes a contribution entitled to recognition, even though the standards or methods of quantifying a spouse's non-monetary contribution are inexact." Report of The Governor's Comm'n on Domestic Relations Laws, at 3 (1978) (emphasis added).
 
The Commission recognized that the marital residence is ordinarily the major asset of a marriage when it said:

   "Experience shows that in the great majority of cases where property of any significance is involved, it consists of the family home, its contents, and one or more automobiles.  It is an unusual case in which other investments of consequence are involved.  A divorce law should be utilitarian -- it should do the most good for the most people.  Consequently, it is mainly the needs of the average person that must be addressed and satisfied." Report of The Governor's Comm'n on Domestic Relations Laws, at 4 (1978).
 
[*63] Thus, the Commission expressly indicated that one of the remedial purposes of the proposed Act was to protect the interests of spouses who had made nonmonetary contributions to the marital residence. The proposed Act was designed to achieve this remedial purpose by "end[ing] the inequity inherent in [***16]Maryland's old 'title' system of dealing with the marital property of divorcing spouses." Report of The Governor's Comm'n on Domestic Relations Laws, at 1 [**921] (1982).  The proposed Act established "the concept of 'marital property' as being all that property which was acquired by the parties during their marriage" and gave the court the power to "recognize non-monetary as well as monetary contributions of the parties to the marriage" in determining the value of and making an equitable distribution of the marital property. Report of The Governor's Comm'n on Domestic Relations Laws, at 5 (1978).

   The General Assembly's basic adoption of the Commission's approach is evidenced by the preamble to the Act that states:

   "The General Assembly declares that it is the policy of this State that marriage is a union between a man and a woman having equal rights under the law. Both spouses owe a duty to contribute his or her best efforts to the marriage, and both, by entering into the marriage, undertake to benefit both spouses and any children they may have.

   "The General Assembly declares further that it is the policy of this State that when a marriage is dissolved the property [***17]  interests of the spouses should be adjusted fairly and equitably, with careful consideration being given to both monetary and nonmonetary contributions made by the respective spouses to the well-being of the family, and further, that if there are minor children in the family their interests must be given particular and favorable attention." 1978 Md.Laws, ch. 794 at 2305 (preamble) (emphasis added). 
 
[*64] Similarly, this Court has recognized that it is "this State's policy to adjust the property interests of spouses fairly and equitably upon the dissolution of their marriage and to give careful consideration to both monetary and nonmonetary contributions by the spouses to the well-being of the family." Bender v. Bender, 282 Md. 525, 535 n.7, 386 A.2d 772, 778 n.7 (1978).

   Because of its broad remedial purpose, including the protection of the interests of spouses making nonmonetary contributions to the marital residence, this Act should be liberally construed.  Keesling v. State, 288 Md. 579, 589, 420 A.2d 261, 266 (1980); James v. Prince George's County, 288 Md. 315, 335, 418 A.2d 1173, 1184 (1980); 3 Sutherland, Statutory Construction § 60.01-02 (4th [***18]ed. C.Sands 1974).  This Court has previously construed the Act broadly in Deering, 292 Md. at 128, 437 A.2d at 890. There it held that virtually all types of civilian retirement benefits accrued by a spouse during marriage constitute marital property, and placed the complex task of valuing and allocating retirement benefits between former spouses within the discretion of the trial court.  Here we shall construe the Act broadly with respect to whether real property, paid for in part before marriage and in part during marriage, as well as a marital residence constructed upon that real property during marriage, constitute marital property.

   Courts in the majority of community property states in which the question has been considered have held that real property paid for in part before marriage and in part during marriage remains the separate property of the spouse who made the payments before marriage. E.g., Potthoff v. Potthoff, 128 Ariz. 557, 562-63, 627 P.2d 708, 713-14 (Ct.App. 1981); Fisher v. Fisher, 86 Idaho 131, 136, 383 P.2d 840, 842-43 (1963); Harris v. Harris, 160 So.2d 359, 360-61, 363 (La.Ct.App. 1964); Laughlin v. Laughlin, 49 N.M. 20, 37, 155 P.2d[***19] 1010, 1020-21 (1944); Dakan v. Dakan, 125 Tex. 305, 320, 83 S.W.2d 620, 628 (1935); Villarreal v. Villarreal, 618 S.W.2d 99, 100-01 (Tex.Civ.App. 1981); Merkel v. Merkel, 39 Wash.2d 102, 113-14, 234 P.2d 857, 863-64 [*65] (1951). The rationale underlying this rule is the inception of title theory.

   A classic statement of the inception of title theory, as it applies to real property, appears in Fisher v. Fisher, 86 Idaho 131, 383 P.2d 840 (1963). There a husband contracted to purchase real property before marriage. While he made some payments before marriage, the remaining payments were made during marriage from community funds.  The Supreme Court of Idaho stated:

   "The status of property as separate or community property is fixed as of the [**922] time when it is acquired.  The word 'acquired' contemplates the inception of title, and as a general rule the character of the title depends upon the existence or nonexistence of the marriage at the time of the incipiency of the right by virtue of which the title is finally extended and perfected; the title when so extended and perfected relates back to that time.  Stated in another way, the status[***20] of title, as belonging to one estate or the other, is determined by the status of the original right, subsequently matured into full title.  Under this rule, property to which one spouse has acquired an equitable right before marriage is separate property, though such right is not perfected until after marriage." Fisher, 86 Idaho at 135-36, 383 P.2d at 842 (emphasis added).
 
That Court held that the real property was the separate property of the husband. 

   Although courts employing the inception of title theory characterize property paid for partly before marriage as separate property, they nonetheless hold that the community is entitled to some degree of compensation for community funds contributed to the separate property in the form of mortgage payments.  E.g., Potthoff, 128 Ariz. at 562-63, 627 P.2d at 713-14; Fisher, 86 Idaho at 134, 383 P.2d at 842-43; Harris, 160 So.2d at 360-61, 363; Laughlin, 49 N.M. at 37, 155 P.2d at 1020-21; Dakan, 125 Tex. at 320, 83 [*66] S.W.2d at 628; Villarreal, 618 S.W.2d at 101; Merkel, 39 Wash.2d at 113-14, 234 P.2d at 863-64. Some of these courts have held that the community has an "equitable lien" for[***21] the amount of any mortgage payments made from community funds.  E.g., Potthoff, 128 Ariz. at 562-63, 627 P.2d at 713-14; Gapsch v. Gapsch, 76 Idaho 44, 53, 277 P.2d 278, 283 (1954); Laughlin, 49 N.M. at 36, 155 P.2d at 1020; Merkel, 39 Wash.2d at 113-14, 234 P.2d at 863-64; In re Marriage of Harshman, 18 Wash.App. 116, 123, 567 P.2d 667, 671-72 (1977). Others have held that the community has "a right to reimbursement" for the amount of any mortgage payments made from community funds.  E.g., Moore v. Moore, 255 So.2d 193, 195-97 (La.Ct.App. 1971); Dakan, 125 Tex. at 320, 83 S.W.2d at 628; Villarreal, 618 S.W.2d at 101. Courts in such jurisdictions have held that increases in the value of a spouse's separate property, attributable solely to the normal appreciation of such property, remain a part of the separate property and require no reimbursement to the community.  E.g., Succession of Hotard, 248 So.2d 30, 33 (La.Ct.App. 1971); Laughlin, 49 N.M. at 36, 155 P.2d at 1020.

   Similarly, courts in a majority of community property states employing the inception of title theory have held that improvements made on the separate real property of a spouse[***22] during marriage are the separate property of that spouse, even though the improvements were provided by the expenditure of community funds or efforts.  A classic statement of the inception of title theory as it applies to improvements to real property appears in Brown v. Brown, 58 Ariz. 333, 119 P.2d 938 (1941). There, a wife owned unimproved real property before marriage. During the marriage, the husband constructed a house upon that real property. The Supreme Court of Arizona stated:
 
"The rule of law governing such a situation, as announced by this court, is found in Ammerman v. Crozier, 37 Ariz. 181, 291 P. 995, wherein we said, quoting from 31 Corpus Juris 34, section 1123: 'As a general rule, when the separate funds of the other spouse or the community funds are expended in [*67] improvements on the separate property of one of the spouses, the title to the improvements follows the land, in the absence of any specific agreement to the contrary . . . .' Under this rule, the lots being the separate property of the plaintiff, the improvements put thereon became a part of the realty and also the separate property of the plaintiff." Brown, 58 Ariz. at 337-38, [***23] 119 P.2d at 940 (emphasis added).

   Although courts employing the inception of title theory characterize improvements made on a spouse's separate property during marriage as separate property, they nonetheless hold that the community is entitled [**923] to some degree of compensation for improvements made on the separate property by the expenditure of community funds or efforts.  Some of these courts have held that the community is entitled to compensation in the amount of the enhanced value of a spouse's separate property attributable to improvements provided by community funds or efforts.  E.g., Lawson v. Ridgeway, 72 Ariz. 253, 261, 233 P.2d 459, 464-65 (1951); Tilton v. Tilton, 85 Idaho 245, 249-50, 378 P.2d 191, 193-94 (1963); Abunza v. Olivier, 230 La. 445, 458, 88 So.2d 815, 820 (1956); Deliberto v. Deliberto, 400 So.2d 1096, 1100 n.5 (La.Ct.App. 1981); Lindsay v. Clayman, 151 Tex. 593, 600, 254 S.W.2d 777, 781 (1952); Villarreal, 618 S.W.2d at 101. In cases in which the increase in value of separate property is attributable to the normal appreciation of such property, as well as to the expenditure of community funds and efforts, the community is[***24] entitled to compensation only for that portion of the increase attributable to community funds and efforts. n3 E.g., Potthoff, 128 Ariz. at 564-65, 627 P.2d at 715-16; Gapsch, 76 Idaho at 52, 277 P.2d at 282; Michelson v. Michelson, 89 N.M. 282, 288, 551 P.2d 638, 644 (1976); McCoy v. Ware, 25 Wash.App. 648, 650, 608 P.2d 1268, 1269 (1980).

n3 In Louisiana, the community is entitled to the entire increase in value of separate property when such increase is attributable to the normal appreciation of the property as well as to the expenditure of community funds and efforts. Deliberto, 400 So.2d at 1101.

   [*68] In sum, community property states employing the inception of title theory characterize property paid for partly before marriage, as well as improvements made on that property during marriage, as the separate property of the spouse who made the payments before marriage. The community is entitled to compensation, whether denominated as an "equitable lien" or a "right to reimbursement," [***25] in the amount of community funds expended for mortgage payments.  In addition, the community is entitled to compensation in the amount of the enhanced value of the separate property attributable to the improvements provided by community funds or efforts.  The community is not entitled to compensation for the amount of an increase in value of the separate property that is attributable solely to normal appreciation. In cases in which an increase in value of the separate property is attributable to the normal appreciation of such property, as well as to the expenditure of community funds and efforts, the community is entitled to compensation only for that portion of the increase attributable to community funds and efforts.

   Courts in at least one equitable distribution state have employed the inception of title theory.  In Cain v. Cain, 536 S.W.2d 866 (Mo.Ct.App. 1976), a husband purchased a farm paid for in part before marriage and in part during marriage from marital funds.  The farm increased in value during the marriage. The Missouri Court of Appeals, employing the inception of title theory, held that the farm and its increase in value were the husband's separate property and, [***26] therefore, nonmarital. The Court did not impose a lien or charge on the property in favor of the wife.  However, it indicated that payments made during marriage from marital funds and the increase in the value of the farm were relevant factors to be considered when dividing the marital property. Essentially the same result was reached in subsequent cases in which real property paid for in part before marriage and in part during marriage had been improved during marriage by the expenditure of community funds and efforts. E.g., Null v. Null, 608 S.W.2d 568, 570 (Mo.Ct.App. 1980); Stark v. Stark, 539 S.W.2d 779, 783 (Mo.Ct.App. 1976).

   [*69] Courts in at least one community property state, California, have rejected the inception of title theory.  In California, when real property is paid for in part before marriage from a spouse's separate funds and in part during marriage from community funds, and improvements are placed on the real property during marriage, such property and its improvements are characterized as part separate and part community.  Under the California rule, the spouse contributing separate funds is entitled to a "pro tanto community property interest" [***27] in such property and improvements in the ratio [**924] of the separate investment to the total separate and community investment in the property.  Similarly, the community is entitled to a "pro tanto community property" interest in such property and improvements in the ratio of the community investment to the total separate and community investment in the property. n4 E.g., Moore v. Moore, 28 Cal.3d 366, 371-72, 618 P.2d 208, 210, 168 Cal.Rptr. 662, 664 (1980); In re Neilson's Estate, 57 Cal.2d 733, 744, 371 P.2d 745, 751, 22 Cal.Rptr. 1, 7 (1962); Bare v. Bare, 256 Cal.App. 2d 684, 689-90, 64 Cal.Rptr. 335, 338-39 (1967); Forbes v. Forbes, 118 Cal.App.2d 324, 325, 257 P.2d 721, 722 (1953).

n4 On occasion, some courts in other community property states have utilized language indicating a similar rejection of the inception of title theory.  E.g., Barrett v. Franke, 46 Nev. 170, 175, 208 P. 435, 437 (1922) (community property to the extent and in the proportion that the purchase price is contributed by the community); Guye v. Guye, 63 Wash. 340, 352, 115 P. 731, 735 (1911) (community property to the extent and in the proportion that the consideration is furnished by the community); W.de Funiak & M. Vaughn, Principles of Community Property, 133-34 (2d ed. 1971).

[***28]

   As a result of the application of the California rule, both the spouse who contributed separate funds and the community that contributed community funds each receive a proportionate and fair return on their investment.  Contrary to the rule adopted in most community property states, the California rule does not limit the community to compensation for a share of the enhanced value of the property attributable to the expenditure of community funds and efforts, but rather entitles the community additionally to [*70] share in the increased value attributable to the normal appreciation of the property.

   The rationale underlying California's "pro tanto community property interest" rule is the source of funds theory.  That theory is premised on the concept that it is unfair to permit a spouse who has contributed separate funds to the purchase or improvement of property to enjoy all of the benefits of sole ownership of the property without regard to the fact that it had been purchased or improved in part with community funds.
 
   As long ago as 1926, the source of funds theory was expressed in Vieux v. Vieux, 80 Cal.App. 222, 251 P. 640 (1926). There a husband contracted to purchase[***29] certain property before marriage. The property was paid for in part before marriage from the husband's separate funds and in part during marriage from an admixture of the husband's separate funds and community funds. The District Court of Appeal initially pointed out that from the circumstances surrounding the purchase of the property and the fact that during the marriage community funds were used in payment of the purchase price, an inference could be drawn that the husband and wife had agreed that the property was community rather than separate.  The Court found that a relationship "somewhat in the nature of a partnership . . . existed between the parties -- the husband on the one side, and the community consisting of the husband and the wife, on the other side." The Court then said:

   "For purposes affecting strangers, the acquisition, through an installment contract, of the right to purchase real property, may be considered as ownership of such property, in that such holding may entitle the intending purchaser to the possession and the use of the property to the exclusion of others; but, as between husband and wife, where community funds are used to a considerable extent in[***30] the payment of the purchase price, the meaning of the statute relating to the definition of separate and community property of spouses cannot be so [*71] limited.  The confidential relationship existing between husband and wife forbids such a strict construction to be placed upon the statute as will destroy the probable intent of the husband and wife with reference to the manner in which the ownership of the property is enjoyed.  Any other construction in these days of liberal terms, with reference to installment purchase price contracts for the sale of real property, including the possible provision of 'a dollar down and a dollar per week,' would [**925] permit a husband or a prospective husband, to buy or to agree to buy any reasonable quantity of lots or lands on the payment by him from his separate funds of a comparatively insignificant sum and thereafter to pay practically the entire purchase price from the community funds, and yet successfully maintain that, because in its inception the naked right to purchase, carrying with it the right of use and possession, was his separate property, it so remained.  It would seem improbable that, through general definitions of terms, [***31] the intention of the lawmakers was to bring about a result which, in many if not a majority of instances, would be of so disastrous and unjust a consequence.  Rather should it be assumed that, when the Legislature undertook to define separate property as that owned by the husband before marriage, even though in other statutes the right of exclusive possession and use was specified as the indicia of ownership, the 'ownership' in the husband through and by virtue of which the wife's interest would be entirely excluded, would necessarily be an absolute ownership, as distinguished from a limited ownership, and that, so far as community funds might participate in the acquisition or protection of vested rights, to that extent proportionally should the property be considered as 'community.'

   . . .
 
[J]ustice demands that the rights of the parties [*72] should be measured by the direct contributions made by the respective parties to the purchase price of the property.  . . . [T]he community interest was entitled to share in the title to the property in the same proportion as the amount contributed to the purchase price by the community . . . bore to . . . the total amount[***32] paid by the respective parties therefor." Vieux, 80 Cal.App. at 227, 228, 229, 251 P. at 642, 643 (emphasis added).

   In at least one equitable distribution state, Maine, a court has rejected the inception of title theory and has employed the source of funds theory.  In Tibbetts v. Tibbetts, 406 A.2d 70 (Me. 1979), a case involving facts somewhat different from those here, a husband and wife purchased real property as joint tenants during the marriage. The property was paid for by an admixture of community funds and separate funds that the wife had acquired before marriage. The Supreme Judicial Court of Maine, in considering whether the property was marital or nonmarital, n5 said:

   "Such property is non-marital to the extent that it was acquired in exchange for property acquired prior to marriage. Thus a single item of property may be to some extent non-marital and the remainder marital.  Accordingly, where property is acquired in exchange for both marital property and non-marital property, the portion attributable to each must be determined.  That portion of the property acquired in exchange for non-marital property must then be 'set apart' as directed by 19[***33] M.R.S.A. § 722-A (1).

   . . .

   "The divorce court must, therefore, separate [*73] marital and non-marital property by tracing from the evidence adduced the contributions each may have made to the acquisition of a particular item.

   . . .

   "In thus interpreting the process of separating marital and non-marital property which has been conjoined in the acquisition of a single property during marriage, we find guidance in the fundamental purposes underlying the approach to disposition of the spouses' property mandated by 19 M.R.S.A. § 722-A and Section 307 of the Uniform Marriage and Divorce Act as originally promulgated in [**926] 1970.  This research suggests that our choice is between a static or a dynamic interpretation of the term 'acquisition.' We adopt a dynamic interpretation in that the proper characterization of property as marital or non-marital may shift as individual items of property, marital or non-marital, are contributed by the spouses in exchange for the property acquired.

   "The approach we choose comports with the general goals of the Uniform Act.

   . . .

   "The partnership theory, upon which the law of community property and this provision of the Uniform[***34] Marriage and Divorce Act is based, requires that the marital estate be entitled to a proportionate share in the value of property where its equity interest was partially acquired by marital funds. Where the marital estate chooses to invest its funds in certain property together with non-marital funds, the marital estate is entitled to a proportionate return on its investment.

   . . .

   "Our interpretation of the term 'acquisition' has led us up and down the American West and even to [*74] the shores of Old Spain.  It appears that the courts of our community property states have not with ease adapted to the realities of complex modern transactions and relationships.  We conclude that in fairness to both spouses 'acquisition' must not arbitrarily and finally be fixed on the date that a legal obligation to purchase is created.  Rather, 'acquisition' should be recognized as the on-going process of making payment for acquired property.  Characterization of the property acquired will then depend on the source of each contribution as payments are made." Tibbetts, 406 A.2d at 75, 76, 77 (emphasis added) (citations omitted) (footnotes omitted).

n5 Me.Rev.Stat.Ann.tit.19, § 722-A (1981) provides in pertinent part:
 
"2. . . . 'marital property' means all property acquired by either spouse subsequent to the marriage, except:

   . . .

   "B. Property acquired in exchange for property acquired prior to the marriage. . . ."

[***35]

   Courts in other equitable distribution states have, for a variety of reasons, rejected the inception of title theory in cases involving facts closely analogous to those here.  E.g., In re Marriage of Lee, 87 Ill.2d 64, 66, 430 N.E.2d 1030, 1031 (1981); In re Marriage of Smith, 86 Ill.2d 518, 529-32, 427 N.E.2d 1239, 1244-46 (1981). Cf. Hinchey v. Hinchey, 625 P.2d 297, 304 (Alaska 1981); In re Marriage of Altman, 35 Colo.App. 183, 185, 530 P.2d 1012, 1013 (1974); Hille v. Hille, 313 N.W.2d 783, 785-86 (N.D. 1981). These courts, however, have not employed the source of funds theory.

   In In re Marriage of Smith, 86 Ill.2d 518, 427 N.E.2d 1239 (1981), the Supreme Court of Illinois employed a transmutation of property theory.  There, a husband owned improved property acquired in settlement of his mother's estate. During the marriage, additional improvements were made with marital funds.  The Supreme Court of Illinois found "from the interplay of sections 503 (a) and (b) as well as the provisions of section 503 (c)(1)" that the Illinois Act n6 [*75]indicated a legislative preference for the classification of property as marital. That Court said:
 
"[***36] [**927] [S]ection 503 (c)(1) also indicates that preference be given to classifying property as marital. Under this section any contribution made to either marital or nonmarital property may be considered in the division of marital property. Therefore, even where the contribution of one partner is insignificant, the possibility of the ultimate property division being inequitable is far less where commingled property is presumed marital rather than nonmarital, since the pool of marital property available for division is greater.  Nonmarital property, of course, may still retain its character, despite a contribution of marital funds.  We have simply interpreted section 503 as establishing a rebuttable presumption that the contribution is intended to change the character of the property to marital.

   . . .

   "We accordingly hold that the preference indicated by the legislature for the classification of property as marital can best be served by presuming that the contributors of marital property to [*76] nonmarital property intended that the commingled property be treated as marital.  In other words, the failure of a nonmarital property holder to segregate that property[***37] will give rise to the rebuttable presumption that the nonmarital property has been transmuted, regardless of the status of title." In re Marriage of Smith, 86 Ill.2d at 531-32, 427 N.E.2d at 1245-46 (emphasis added).

n6 Section 503 of the Marriage and Dissolution Act (Ill.Rev.Stat.ch.40 (1977)) provides in pertinent part:

   "(a) For purposes of this Act, 'marital property' means all property acquired by either spouse subsequent to the marriage, except the following, which is known as 'non-marital property':

   . . .

   "(5) the increase in value of property acquired before the marriage; and

   "(6) property acquired before the marriage.

   "(b) All property acquired by either spouse after the marriage . . . is presumed to be marital property, regardless of whether title is held individually or by the spouses in some form of co-ownership . . . .  The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (a) of this Section.

   "(c) In a proceeding for dissolution of marriage . . . the court shall assign each spouse's non-marital property to that spouse. It also shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including:

   "(1) the contribution or dissipation of each party in the acquisition, preservation, or depreciation or appreciation in value, of the marital and non-marital property, including the contribution of a spouse as a homemaker or to the family unit.  . . ."

[***38]

   In In re Marriage of Lee, 87 Ill.2d 64, 430 N.E.2d 1030 (1981), the Supreme Court of Illinois again employed a transmutation of property theory.  There, a husband purchased a residence before marriage. During the marriage, the husband made improvements on the residence paid for from marital funds.  At all times, the residence, which was the principal asset involved in the case, was titled in the husband's name.  The Appellate Court of Illinois, recognizing that "substantial marital property was diverted to the enhancement of the residence," said:
 
"To interpret the statute to mean that the improvements are non-marital property and deny appellee any share in them despite her contribution would be grossly inequitable and flaunt the purpose for which the statute had been enacted. Rather, we believe that in light of sections 503 (b) and (c) there has been a commingling of marital property and non-marital property which serves to transmute the entire property into marital property.

   . . .

   "Although this precise issue has not been previously decided by this court we find the rationale of the transmution theory persuasive.  In Klingberg [v. Klingberg, 68 Ill.App.3d 513, [***39] 516-17, 386 N.E.2d 517, 520 (1979)] the court held that where non-marital property is commingled with marital property, this evinces an intent to treat it as marital property. This presumption is particularly apt in the present case.  There was clearly commingling of [*77] non-marital property (the residence) and marital property ($12,000 in improvements).  The circumstances clearly show an intent to treat the house as marital property. The family lived in the residence and substantial amounts of marital funds were invested in it to improve it. Appellant has presented no evidence to rebut this presumption.

   "Treating the residence as marital property will not be inequitable to the appellant, who made a substantial investment of non-marital property in the residence.  Under section 503 (c), in dividing marital property the court must take into account the 'contribution * * * of each party in the acquisition, preservation, or depreciation or appreciation in value, of the marital and nonmarital property * * *' (Ill.Rev.Stat.1979, ch. 40, par. 503 (c) (1)).  In the instant case, to guarantee an equitable distribution the court need simply take into account appellant's contribution. [***40]

   . . .
 
[**928] In many cases, such as the one at bar, the primary asset of the marriage is the marital residence. To hold that where one spouse owned the residence prior to marriage, the residence is non-marital property of which the other spouse is entitled to nothing despite significant contributions is to guarantee an unequitable distribution of property in contravention of the purpose of the statute.  Further, such a reading of the statute would have the anomalous effect of transforming marital property into non-marital property in that marital funds would be used to increase the equity in non-marital property. We do not believe the legislature intended to create such a loophole from which manifestly inequitable results could frequently occur.

   "Instead, we hold that where there has been a contribution of marital property to non-marital property, the entire property is transmuted to marital [*78]property. This will guarantee that the contribution of each spouse will be considered in dividing the property and insure an equitable distribution." Lee v. Lee, 88 Ill.App.3d 1044, 1046-47, 410 N.E.2d 1183, 1185 (1980) (emphasis added).
 
   The Supreme Court of[***41] Illinois affirmed the judgment of the Appellate Court of Illinois.  In re Marriage of Lee, 87 Ill.2d 64, 430 N.E.2d 1030 (1981). The Supreme Court of Illinois held that the husband's nonmarital property was transmuted into marital property and, therefore, that the marital residence constituted marital property. It further held that the value of the marital residence was subject to equitable distribution and that the husband's nonmarital contribution to the residence was a factor to be considered in determining an equitable distribution of all the marital property.

   We must now determine the appropriate analysis to be used in construing the Maryland Act. We note that in Deering v. Deering, 292 Md. 115, 437 A.2d 883 (1981), this Court, recognizing the differences between the statutes of community property states and equitable distribution states, said:
 
"Although Maryland's statute, providing solely for an equitable, monetary adjustment of marital property rights between former spouses, neither requires equal partitioning of marital property nor authorizes a court to change title to such property, the rationale of decisions from community property jurisdictions has proven[***42] useful . . . ." Deering, 292 Md. at 123 n.6, 437 A.2d at 887-88 n.6.
 
However, the language of § 3-6A-01 (e) of the Courts and Judicial Proceedings Article that "'marital property' is all property, however titled," expressly establishes that a determination of what constitutes marital property under § 3-6A-05 (a) is not dependent upon the legalistic concept of title.  We reject the inception of title theory employed by a majority of community property states and at least one equitable [*79] distribution state.  Accordingly, under § 3-6A-01 (e), property is not necessarily "acquired" on the date that a legal obligation to purchase is created.  Thus, we effectuate our Act's purpose of "end[ing] the inequity inherent in Maryland's old 'title' system of dealing with the marital property of divorcing spouses." Report of The Governor's Comm'n on Domestic Relations Laws, at 1 (1982).

   We also reject the Illinois transmutation of property theory.  Although the Illinois Act is similar in many respects to the Maryland Act, we find nothing in the Maryland Act that indicates a legislative preference for the classification of property as marital. Under the statutory scheme[***43] embodied in the Maryland Act, the trial court must initially characterize all property owned by the parties, however titled, as either nonmarital or marital. § 3-6A-05 (a). Once characterized, the value of the marital property must be determined. Thereafter, the value of the nonmarital property of each spouse is assigned to that spouse and the value of the marital property is equitably distributed between the spouses. § 3-6A-05 (b).  In making this equitable distribution, the trial court must consider nine relevant factors, including the monetary and [**929]nonmonetary contributions of each spouse, the value of the property interests of each spouse, and the effort expended by each spouse in accumulating the marital property. § 3-6A-05 (b).

   Under the statutory scheme embodied in the Act, the nine relevant factors are to be considered only after the trial court has characterized the property of the parties as either nonmarital or marital. Thus, under the Maryland statutory scheme, a determination of what constitutes marital property is not dependent upon a consideration of the factors enumerated in § 3-6A-05 (b).  Unlike the Illinois court, we are not persuaded that either[***44] the statutory scheme embodied in our Act or its express requirement that the trial court consider the monetary and nonmonetary contributions of each spouse, the value of the property interests of each spouse, and the effort expended by each spouse in accumulating the marital property indicates a legislative preference for the classification of property as marital. [*80] Indeed, the language of § 3-6A-01 (e), which sets forth an exclusive list of nonmarital property, indicates a legislative intent that the value of certain property not be subject to equitable distribution, and that the interests of spouses making nonmonetary contributions be protected without depriving the other spouse of nonmarital property.  To permit nonmarital property to be "transmuted" into marital property and, therefore, to be subject to equitable distribution deprives a spouse of nonmarital property and is, therefore, contrary to that legislative intent.

   We conclude that under the Maryland Act the appropriate analysis to be applied is the source of funds theory.  Under that theory, when property is acquired by an expenditure of both nonmarital and marital property, the property is characterized as part[***45] nonmarital and part marital. Thus, a spouse contributing nonmarital property is entitled to an interest in the property 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.

   We recognize that in order to apply the source of funds theory in Maryland, it is necessary to adopt, as did the Supreme Judicial Court of Maine, an interpretation that defines the term "acquired," appearing in § 3-6A-01 (e), as the on-going process of making payment for property.  Tibbetts, 406 A.2d at 77. Under this definition, characterization of property as nonmarital or marital depends upon the source of each contribution as payments are made, rather than the time at which legal or equitable title to or possession of the property is obtained.

   The utilization of this definition of the term "acquired," coupled with the application of the source of funds theory, produces a[***46] result that comports with both the language and the purpose of the Maryland Act. Property directly attributable to the contribution of nonmarital property is characterized as nonmarital property and its value is not [*81] subject to equitable distribution, a result that is consonant with § 3-6A-01 (e).  Property directly attributable to contributions of marital property is characterized as marital property and its value is subject to equitable distribution, a result that is consonant with § 3-6A-01 (e) and § 3-6A-05 (a) and (b).  Additionally, in making an equitable distribution of the value of all the property characterized as marital, nonmarital contributions to the marital property are to be considered, a result that is consonant with § 3-6A-05 (b) (1), (2), and (7).  Because the definition of the term "acquired" and the application of the source of funds theory produces results consonant with the statutory scheme embodied in the Maryland Act, we believe it best effectuates the broad remedial purpose of the Act "to adjust the property interests of spouses fairly and equitably . . . and to give careful consideration to both monetary and nonmonetary contributions by the[***47] spouses." [**930] Bender, 282 Md. at 535 n.7, 386 A.2d at 778 n.7.

    Applying these principles to the instant case produces the following result. Ordinarily, under the three-step process provided by the Maryland Act, when real property is purchased and paid for in part before marriage and in part during marriage with nonmarital and marital funds, the property is nonmarital in part and marital in part.  Additionally, ordinarily, when a marital residence is constructed upon that real property during marriage by the expenditure of nonmarital and marital property, the marital residence is nonmarital in part and marital in part. n7 The property and the marital residence are nonmarital in the ratio that the nonmarital investment in the property and the residence bears to the total nonmarital and marital investment in the property and the residence. To the extent that the property and the residence are nonmarital, their value is not subject to equitable distribution.  Similarly, the property and the marital residence are marital in the ratio that the marital [*82] investment in the property and the residence bears to the total nonmarital and marital investment in the property. [***48] To the extent that the property and the residence are marital, their value is subject to equitable distribution.  When making an equitable distribution of the value of the marital property, the contributions, monetary and nonmonetary of each spouse, the value of the property interests of each spouse, and the effort expended by each spouse in accumulating the marital property, among other things, shall be considered.

n7 We note that § 3-6A-05 (a) provides in pertinent part:
 
"Family use personal property or the family home shall not be considered marital property so long as it is the subject of a use and possession order."

   In light of these newly adopted standards, this case must be remanded to the trial court to determine the source of the funds contributed to the real property and the marital residence by each of the spouses and the marital unit; to determine the extent to which the property and the marital residence are to be characterized as nonmarital or marital; to determine the value of the [***49]marital property; and to make an equitable distribution of the value of the marital property with due regard being given to all of the relevant factors.

   Judgment of the Court of Special Appeals reversed in part.

   Case remanded to that Court with instructions to reverse in part the judgment of the Circuit Court for Anne Arundel County and to remand the case to that Court for further proceedings in accordance with this opinion.

   Costs to be equally divided. 

CAPITAL-GAZETTE NEWSPAPERS, INC. v. RICHARD L. STACK 
No. 53, September Term, 1981
 
Court of Appeals of Maryland
 
293 Md. 528; 445 A.2d 1038; 1982 Md. LEXIS 271; 8 Media L.Rep. 1704

 June  4, 1982, Decided

   SUBSEQUENT HISTORY: [***1]

   Petition for Writ of Certiorari Denied by Supreme Court of the United States on November 8, 1982.

PRIOR HISTORY:  
Certiorari to the Court of Special Appeals.  Circuit Court for  Anne Arundel  County, Thieme, J.

DISPOSITION: Judgment of the Court of Special Appeals reversed.  Costs to be paid by respondent.

CORE TERMS:  editorial, publisher, campaign, actual malice, candidate, endorsement, falsity, defamatory, questionnaires, reporter, owed, reckless disregard, solicited, untruth, defamatory statement, public office, newspaper, imagination, probable, defamation, accuracy, proven, smear, trier of fact, high degree, calculated, hyperbole, falsehood, awareness, Constitutional Law

COUNSEL: Peter F. Axelrad, with whom were David E. Beller and Frank, Bernstein, Conaway & Goldman and William L. Reynolds on the brief, for appellant.

   Amicus curiae brief of the A. S. Abell Company filed.  Douglas D. Connah, Jr., Christopher J. Fritz and Venable, Baetjer & Howard on the brief.

   Russell J. Bennett, with whom was David A. Bowers on the brief, for appellee. 

JUDGES: Murphy, C. J., and Smith, * Digges, Eldridge, Cole and Davidson, JJ. Davidson, J., [***3] delivered the opinion of the Court.  Murphy, C. J., concurs in the result, and filed a concurring opinion at page 543 infra.  Cole, J., dissents and filed a dissenting opinion at page 544 infra.

* Digges, 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: DAVIDSON

OPINION: [*529] [**1039] This case concerns an interpretation and application of the principle established in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710 (1964), that in a defamation action a public figure must prove by clear and convincing evidence that the allegedly false defamatory publication was made with "actual malice."

   During the 1978 general election, the respondent, Richard L. Stack, was the Republican candidate for election to the Maryland State Senate in District 32, Anne Arundel County.  He had never before held public office. He was opposed by H. Erle Schafer, the Democratic candidate. Schafer had previously served as a member of the Anne Arundel County Council and[***4] then as Urban Renewal Director for Glen Burnie.  The petitioner, Capital-Gazette [*530] Newspapers, Inc. (publisher), was the owner and publisher of two newspapers, the Maryland Gazette and the Evening Capital, both circulated in Anne Arundel County.  Edward D. Casey was the executive editor of these newspapers and was responsible for their editorial content.  John A. Farrell was then a staff reporter who covered, among other things, the Stack-Schafer campaign. In both the 26 October 1978 edition of the Maryland Gazette and the 27 October 1978 edition of the Evening Capital, identical editorials endorsing Schafer's candidacy were published.  Those editorials said:

   "DISTRICT 32

   "THIS SENATE race in north county has been the biggest disappointment of any race in the area.  What should have been a responsible battle between two intelligent men has turned into one of gutter politics -- all because of the tactics of Republican challenger Richard Stack.

   "After the smoke of their primary battles had cleared, we expected a race between Stack and H. Erle Schafer, two intelligent, personable candidates who we thought would discuss the issues which would affect the people of this[***5] northern Anne Arundel County district.

   "[**1040] Instead, Stack chose to take the low road -- a la former Sen. Joseph McCarthy.  He has been conducting a campaign of smears and innuendoes in attempting to divide the district's many Democrats.

   "Stack has refused to discuss the issues.  While Schafer answered the many questionnaires sent out by more than 20 political organizations, Stack not only refused to answer the questions, he demanded that the organizations provide him with Schafer's answers.

   "He insinuated that Schafer's Democratic primary opponent, Michael Wagner, was supporting him in the general election.  He even said that Schafer's running mate, Del. Tyras Athey, was on his side.

   [*531] "Both allegations have proven to be false -- as have many other things Stack has said in the campaign.

   "Schafer is a former county councilman and is on leave of absence from his county job as Glen Burnie urban renewal director.  He certainly has more experience in government than Stack and from what we have seen in this race is a more responsible human being.

   "The overwhelming choice here is Schafer.  Stack does not belong in public office." (Emphasis added.)

   On 1 November[***6] 1978, in the Circuit Court for Anne Arundel County, Stack sued the publisher for libel alleging, among other things, that the publisher had acted with actual malice. In April, 1980, a jury trial was held.

   At the trial, much evidence was presented concerning the circumstances preceding and surrounding the publication of the allegedly false defamatory editorial. Stack himself testified that his campaign was premised upon his personal philosophy that a public official should not be obligated to any individual, political group or other special interest group.  More specifically, in describing this philosophy, he said:

   "A . . . I felt that what the people wanted was a person who was not beholden to anyone once they achieved office.  That they owed no one, that they owed no special interest.  That they owed no one for an endorsement. They -- they owed no group.  They owed no campaign manager, they owed no -- no one, because if that candidate successfully achieved office, but at the same time had to give something away, in my term, sell out, in order to achieve the office then he was not his own person once he achieved that office.  And in my estimation that person was lost before[***7] they even started, because they could not be their own person in making the decisions for their constituents.  So, we filed -- I filed a [*532] campaign based upon that philosophy and that premise.

   . . .

   "Q [Respondent's Counsel] . . . Now, when you use the phrase, sell out, what do you mean by sell out?

   "A I'm talking about making compromises in order to get endorsements, support, raise money, or do anything else that will help toward getting elected. Selling out, or getting these endorsements has always been the -- a way of life in Anne Arundel County politics.

   "Q But you're not referring to money actually being handed to someone selling out?

   "A I'm not referring to money.  I'm referring to the fact that this has been the way of politics in Anne Arundel County and in my district, which is located in Anne Arundel County, since I have known anything about politics.  And it is my opinion that someone who goes in that way cannot vote as his constituents want him to vote because he owed favors.  And I refuse to achieve election that way.  I just would not."

   According to Stack, campaign strategies consistent with this philosophy were developed.  He did not seek the endorsement[***8] of politicians or of special interest groups.  Although he did not have a platform, he nonetheless discussed issues when attending coffee hours, campaigning door-to-door, participating in debates with his opponent, appearing at candidates' nights, and engaging in press interviews.  In addition, he responded [**1041] to questionnaires submitted to him by newspapers and groups not representing special interests, (i.e., Common Cause and the League of Women Voters).  He refused, however, to respond to questionnaires submitted to him by groups representing special interests, (i.e., American Association of Retired Persons, Sierra Club, Metropolitan Baltimore AFL-CIO, Fraternal Order of Police, Maryland and District of Columbia Rifle and Pistol Association, [*533] Inc., United Christian Citizens, Inc., and Associated Builders and Contractors, Inc.).

   The record shows that on 3 October 1978, Stack wrote a letter to Schafer, with copies to Casey, as well as to various reporters, requesting copies of Schafer's answers to the questionnaires submitted to him by groups representing special interests.  The letter additionally indicated that Stack would answer the questions posed if they[***9] were raised in a different format under different circumstances.

   On 19 October and 23 October 1978, Stack placed an ad in the Maryland Gazette and the Evening Capital entitled, "Has Erle Schafer Sold Out?" The text of the ad pointed out that Schafer had answered questionnaires submitted by special interest groups while Stack had not and that "the public was entitled to know what [Schafer] had given away in order to achieve office."

   The record further shows that on or about 19 October 1978, in accordance with the newspapers' policy, the publisher held a meeting for the purpose of determining which of the candidates it would endorse.  The meeting was called by Casey.  At that meeting, Stack, Schafer, Casey, Farrell, and others were present.  While Stack discussed some issues at the meeting, he refused to discuss others.  Stack asserted that he had the support of Tyras Athey, a Democrat who was then a member of the House of Delegates seeking reelection on Schafer's ticket, and Michael J. Wagner, a Democrat who was then a member of the Maryland State Senate, but who had been defeated by Schafer in the preceding primary.  At that meeting, Schafer called Stack a liar and accused him [***10]of soliciting support from Democrats.

   Casey was disturbed by the fact that two Democrats then in public office might be supporting a Republican in a district that was heavily Democratic and that had never elected a Republican to office.  The next day, on 20 October 1978, a second meeting was held at which Schafer, Athey, Wagner, Casey, Farrell, and Patrick Scannello, a Delegate from Glen Burnie, were present.  At that time, Athey and Wagner both denied that they were then supporting Stack.

   [*534] On 21 and 23 October 1978, an article written by Farrell was published in each of the publisher's papers.  The article indicated that there was "infighting" in the Democratic Party.  It pointed out that although Athey had admitted that he did meet with Stack after "calling the Republican in a fit of post-election emotion," he nonetheless had subsequently reconciled his differences with Schafer and did not intend to help Stack in any way.  The article further asserted that the day after the primary, Wagner's secretary had given Stack three photos purporting to show some allegedly dilapidated buildings owned by Schafer, the former Urban Renewal Director.  The article further stated that[***11] Wagner, "mindful of what happens to Democrats who get caught in the open supporting Republicans," had subsequently reached an understanding with Schafer.  The article concluded that Wagner "who began as friend and turned to foe has become a friend again -- at least on paper." Finally, the article reported that Stack said he would win because "the Democrats still hurt from the bitter primary and some North County Democrats agree." Farrell wrote the article despite the fact that at the 20 October 1978 meeting Athey and Wagner told him that they were not supporting Stack.  Farrell's only explanation for writing the article was that he "just generally [has] to take almost anything a politician says with a grain of salt."

   Thereafter, in accordance with the papers' policy, Casey solicited the views of others, including Farrell, and the managing editors of the Maryland Gazette and the [**1042] Evening Capital, regarding the papers' editorial endorsements. Although Farrell endorsed Stack, the two others whose views were solicited strongly supported Schafer.

   On direct examination, Casey testified that before writing the editorial he examined the background and experience of each of[***12] the candidates. He reviewed various news stories written during the campaign and considered his own personal observations including the 19 and 20 October 1978 meetings.  He evaluated the techniques utilized by the candidates throughout the campaign. He took cognizance of the opinions of those whose views he had solicited. He noted that [*535] Schafer had been a member of the County Council and an Urban Renewal Director, whereas Stack had never previously held public office; that Stack did not have a platform; that he had refused to discuss issues at various times and places; that he had refused to answer questionnaires submitted to him by various organizations; that he had asserted that prominent Democrats were supporting him; that those Democrats had denied the assertion; and that he had utilized an ad designed to vilify Schafer.  Based on this information, it was Casey's opinion that Stack had made false statements and had conducted a campaign of smears and innuendos designed to divide the Democrats in the district by "spreading the word that Athey and Wagner were supporting Mr. Stack."

   On cross-examination Casey conceded that before writing the editorial his personal knowledge[***13] of Stack was limited to what he observed at the publisher's 19 October 1978 candidate endorsement meeting.  He additionally conceded that he had not solicited an opinion concerning candidate endorsement from all of the reporters who had covered the campaign, including the reporter primarily responsible for campaign coverage.  Indeed, he admitted that the only reporter from whom he solicited an opinion concerning campaign endorsement was Farrell, who had in fact recommended the endorsement of Stack.  Casey further conceded that after Athey and Wagner asserted that they were supporting Schafer, not Stack, he did not call Stack for comment.  Moreover, Casey admitted that because he believed the assertions of Athey and Wagner, he did not make any effort to investigate the accuracy of Farrell's 21 and 23 October 1978 article indicating that there was "infighting" in the Democratic Party.  Additionally, Casey admitted that he did not make any effort to investigate the accuracy of Stack's ad questioning whether Schafer had sold out.  Ultimately, the following colloquy took place:

   "Q [Respondent's Counsel] . . . I believe you stated in your editorial, both allegations are proven to be[***14] false with reference to the allegation of Wagner and Athey's support -- as have many other [*536] things that Stack has said in the campaign.  What were the many other things that Mr. Stack said in his campaign that proved to be false?

   . . .

   "A I don't know exactly many other things.

   "Q Well, that's what it says.  It says, as have many other things.

   "A I'm not finished my answer.  I would say that running advertisements, has Erle Schafer sold out.  I mean, I think that is certainly a smear and an innuendo.  And in my mind, at least, an untruth.  . . .

   . . .
 
I'm just trying to recall some other things here now.  Oh, I would definitely say when he -- he tells me to my face that he has the support of Mr. Athey and Mr. Wagner, and then less than 24 hours later these two people tell me to my face that in no way are they supporting him.  I think -- I'd have to say that's an untruth.

   "Q Okay.  Now, I let you finish your answer, and I'll go back and ask the question again.  I prefaced the question when I asked it with both allegations have proven to be false.  The two that you just gave me, with reference to Wagner -- with reference to Athey and Wagner.  It also[***15] says, as have many other things Stack has said in the campaign.  The other thing you said was an ad that [**1043] asked a question, has Erle Schafer sold out.  Now, I'm asking you, what other things he said in the campaign that proved to be false?

   . . .

   "A I cannot be specific any more than I have been on something that happened a year and a half ago.  . . . I can't remember anything else at this point." (Emphasis added.)

   At the close of all the evidence, the trial court granted the publisher's motion for a directed verdict.  Stack appealed to [*537] the Court of Special Appeals which reversed the judgment of the trial court.  Stack v. Capital-Gazette Newspapers, Inc., 48 Md.App. 429, 427 A.2d 1066 (1981). The publisher filed a petition for a writ of certiorari that we granted.  We shall reverse the judgment of the Court of Special Appeals.

   In New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721 (1964), the United States Supreme Court observed that this country has
 
"a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, [***16] and sometimes unpleasantly sharp attacks on government and public officials."
 
Quoting from Coleman v. MacLennan, 78 Kan. 711, 724, 98 P. 281, 286 (1908), that Court said:
 
"'[I]t is of the utmost consequence that the people should discuss the character and qualifications of candidates for their suffrages.  The importance to the state and to society of such discussions is so vast, and the advantages derived are so great, that they more than counter-balance the inconvenience of private persons whose conduct may be involved, and occasional injury to the reputations of individuals must yield to the public welfare, although at times such injury may be great.  The public benefit from publicity is so great, and the chance of injury to private character so small that such discussion must be privileged.'" New York Times Co., 376 U.S. at 281, 84 S.Ct. at 726-27.
 
In acknowledging the reality of the political milieu in particular, that Court, quoting from Mill, On Liberty (Oxford: Blackwell, 1947), at 47, stated:
 
"'* * * [T]o argue sophistically, to suppress facts or arguments, to misstate the elements of the case, or misrepresent the opposite opinion[***17] * * * all this, even to the most aggravated degree, is so [*538] continually done in perfect good faith, by persons who are not considered, and in many other respects may not deserve to be considered, ignorant or incompetent, that it is rarely possible, on adequate grounds, conscientiously to stamp the misrepresentation as morally culpable; and still less could law presume to interfere with this kind of controversial misconduct.'" New York Times Co., 376 U.S. at 272 n.13, 84 S.Ct. at 722 n.13.

   The Court recognized that "erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the 'breathing space' that they 'need * * * to survive.'" New York Times Co., 376 U.S. at 271-72, 84 S.Ct. at 721. Stating that a "defense for erroneous statements honestly made" is essential and that critics of official conduct should not be required "to guarantee the truth of all [their] factual assertions," the Supreme Court established a rule governing recovery of damages in a libel action brought by a public official against critics of his official conduct.  New York Times Co., 376 U.S. at 278-79, 84 S.Ct. at 725. Thus, [***18]the Supreme Court declared:

   "The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice' -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not." New York Times Co., 376 U.S. at 279-80, 84 S.Ct. at 726.

   Subsequent Supreme Court cases have explicated the standard of "actual malice. [**1044] " Thus, in Garrison v. State of Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 216 (1964), the Supreme Court described "actual malice" as "false statements made with [a] high degree of awareness of their probable falsity." In St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325 (1968), the Supreme Court stated [*539] that publishing with "serious doubts as to the truth of [the] publication . . . shows reckless disregard for truth or falsity and demonstrates actual malice." In Gertz v. Robert Welch, Inc., 418 U.S. 323, 335 n.6, 94 S.Ct. 2997, 3004 n.6 (1974), the Supreme Court reiterated that "subjective awareness of probable[***19] falsity" constitutes actual malice. In Herbert v. Lando, 441 U.S. 153, 160, 99 S.Ct. 1635, 1640 (1979), the Supreme Court emphasized that actual malice requires examination of "the conduct and state of mind" of the publisher and a showing that the publisher "must know or have reason to suspect that his publication is false."
 
   In New York Times Co., and its progeny, the Supreme Court not only established the "actual malice" standard, but also considered the proof necessary to support a finding of "actual malice." The existence of actual malice can be established "only on clear and convincing proof." Gertz, 418 U.S. at 342, 94 S.Ct. at 3008; see also, Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 83, 88 S.Ct. 197, 199 (1964); New York Times Co., 376 U.S. at 285-86, 84 S.Ct. at 729.

   "Actual malice" can be established by showing that: a defamatory statement was a calculated falsehood or lie "knowingly and deliberately published," Garrison, 379 U.S. at 75, 85 S.Ct. at 216; see also, Cantrell v. Forest City Publishing Co., 419 U.S. 245, 252-53, 95 S.Ct. 465, 470-71 (1974); a defamatory statement was the product of the publisher's imagination; a defamatory [***20]statement was so inherently improbable that only a reckless person would have put it in circulation; or the publisher had obvious reasons to distrust the accuracy of the alleged defamatory statement or the reliability of the source of the statement, St. Amant, 390 U.S. at 732, 88 S.Ct. at 1326.

   "Actual malice" cannot be established merely by showing that: the publication was erroneous, derogatory or untrue, Gertz, 418 U.S. at 340-41, 94 S.Ct. at 3007; St. Amant, 390 U.S. at 732, 88 S.Ct. at 1326; New York Times Co., 376 U.S. at 281, 84 S.Ct. at 726; the publisher acted out of ill will, hatred or a desire to injure the official, Greenbelt Cooperative Publishing Ass'n v. Bresler, 398 U.S. 6, 10-11, 90 S.Ct. 1537, 1540 (1970); Garrison, 379 U.S. at 73-74, 85 S.Ct. at [*540] 215; the publisher acted negligently, Garrison, 379 U.S. at 79, 85 S.Ct. at 218; New York Times Co., 376 U.S. at 288, 84 S.Ct. at 730; the publisher acted in reliance on the unverified statement of a third party without personal knowledge of the subject matter of the defamatory statement, St. Amant, 390 U.S. at 732, 88 S.Ct. at 1326; or the publisher acted without undertaking [***21]the investigation that would have been made by a reasonably prudent person, Gertz, 418 U.S. at 332, 94 S.Ct. at 3003; St. Amant, 390 U.S. at 731, 88 S.Ct. at 1325; Beckley Newspapers Corp., 389 U.S. at 84-85, 88 S.Ct. at 200; New York Times Co., 376 U.S. at 287-88, 84 S.Ct. at 730. Moreover, malice is not established if there is evidence to show that the publisher acted on a reasonable belief that the defamatory material was "'substantially correct'" and "there was no evidence to impeach the [publisher's] good faith," New York Times Co., 376 U.S. at 286, 84 S.Ct. at 729.

   These principles have been frequently reiterated by the Supreme Court.  E.g., Wolston v. Reader's Digest Ass'n, 443 U.S. 157, 163-64, 99 S.Ct. 2701, 2705 (1979); Monitor Patriot Co. v. Roy, 401 U.S. 265, 270-71, 91 S.Ct. 621, 624-25 (1971); Time, Inc. v. Pape, 401 U.S. 279, 284, 289-92, 91 S.Ct. 633, 636, 639-40, reh'g denied, 401 U.S. 1015, 91 S.Ct. 1248 (1971); Curtis Publishing Co. v. Butts, 388 U.S. 130, 164-65, 87 S.Ct. 1975, 1996 (Warren, C.J., concurring), reh'g denied, 389 U.S. 889, 88 S.Ct. 11, 13 [**1045] (1967). Moreover, they have been adopted and applied[***22] in Maryland.  Berkey v. Delia, 287 Md. 302, 314-18, 413 A.2d 170, 175-77 (1980); A.S. Abell Co. v. Barnes, 258 Md. 56, 58-70, 265 A.2d 207, 209-16 (1970), cert. denied, 403 U.S. 921, 91 S.Ct. 2224 (1971).

   Applying these principles to the instant case produces a clear result.  Here there is no question that the respondent was a candidate for public office and was, therefore, a public figure.  Monitor Patriot Co., 401 U.S. at 271-72, 91 S.Ct. at 625; Ocala Star-Banner Co. v. Damron, 401 U.S. 295, 299, 91 S.Ct. 628, 631 (1971); A.S. Abell Co., 258 Md. at 75, 265 A.2d at 218. Accordingly, the New York Times Co. "actual malice" standard applies.  Therefore, the respondent had the burden of presenting sufficient evidence from which a trier of fact could find or infer, by applying the clear and [*541] convincing evidence test, that the publisher was aware that its editorial statements were false, or that it published them with reckless disregard of whether they were false.  Berkey, 287 Md. at 317-20, 413 A.2d at 177-78; A.S. Abell Co., 258 Md. at 77, 265 A.2d at 219.

   The record here shows that Casey testified that he was not acting out of ill will, [***23] hatred or a desire to injure Stack.  Casey had observed Stack at the 19 October 1978 candidate endorsement meeting and, therefore, had some personal knowledge of him.  Before writing the editorial, Casey undertook a substantial investigation of the campaign. He examined the background and experience of each of the candidates. He reviewed various news stories written during the campaign. He solicited candidate endorsements from others.  He noted that Stack did not have a platform, had on occasion refused to discuss issues, and had on occasion refused to answer questionnaires. He was present when Stack asserted that prominent Democrats were supporting him as well as when those Democrats subsequently denied the assertion.  He believed the Democrats and concluded that Stack had made a false statement.  He reviewed an ad used by Stack that he believed contained untruths designed to vilify Schafer.  All of this evidence shows that Casey acted on a reasonable belief that the statements in the editorial were substantially correct.  There was no evidence to impeach Casey's good faith.

   The editorial contains a statement to the effect that many things Stack said in the campaign were false. [***24] Casey's testimony identifying two specific occasions on which he believed Stack had told untruths served as an adequate basis for this allegedly false defamatory editorial statement.  That testimony supports an inference that the allegedly false defamatory editorial statement was not the product of the publisher's imagination and was most assuredly not a calculated falsehood or lie.  Indeed, that testimony supports the inference that, under the circumstances, the allegedly false defamatory editorial statement was "no more than rhetorical hyperbole," Greenbelt, 398 U.S. at 14, 90 S.Ct. at 1542, often present in vehement debate, and in the [*542] misstatements and misrepresentations ordinarily associated with the political milieu, New York Times Co., 376 U.S. at 270, 273 n.13, 84 S.Ct. at 721, 722 n.13. Thus, the record does not show that Casey was aware of any falsity in the editorial.

   While the record shows that Casey did not solicit an opinion from all of the reporters who covered the campaign, did not call Stack for comment after Athey and Wagner asserted that they were supporting Schafer, and did not make any effort to verify either the accuracy of a staff reporter's[***25] article relating to infighting in the Democratic Party or of Stack's ad questioning whether Schafer had sold out, the record also shows that Casey made some effort to investigate.  At most, Casey's investigatory omissions support a finding of negligence.  Garrison, 379 U.S. at 79, 85 S.Ct. at 218; New York Times Co., 376 U.S. at 288, 84 S.Ct. at 730. They do not show that Casey acted with reckless disregard of the truth of the editorial statements.

   We can only conclude that there was insufficient evidence from which a trier of fact could find or infer that the publisher [**1046] had a high degree of subjective "awareness of [the] probable falsity" of the editorial statements or that it had "serious doubts as to the truth" of the editorial statements or that it "knew or had reason to suspect" that the editorial statements were false.  The trial court did not err when it granted the publisher's motion for a directed verdict.  Accordingly, we shall reverse the judgment of the Court of Special Appeals. n1

n1 In view of our decision, we need not consider the petitioner's remaining contention that its editorial statements were not factual assertions, but rather were constitutionally protected opinion and fair comment.

[***26]

   Judgment of the Court of Special Appeals reversed.

   Costs to be paid by respondent.

CONCURBY: MURPHY

CONCUR:  
[*543] Concurring opinion by Murphy, C.J.:

   While I concur with the result in this case, I think the majority has not fully explicated the basis for the decision of the Court of Special Appeals. That court's opinion, in my judgment, merits further discussion.

   The Court of Special Appeals held that the evidence before the trial court, when viewed in a light most favorable to Stack, was such that the trier of fact could conclude there was "clear and convincing" evidence of a reckless disregard of the truth or falsity of the statements made in the editorial. The court explained that:
 
"Appellee had no explanation for that portion of the editorial wherein Stack was accused of making many other statements in the campaign which had proven to be false.  In short, at least so far as that part of the editorial which states 'as have many other things Stack has said in the campaign' is concerned, it would appear that appellee could be found to have recklessly disregarded the truth or falsity of that statement; thus the fact finder could have found actual malice."[***27]
 
Stack v. Capital-Gazette Newspapers, 48 Md. App. 429, 437, 427 A.2d 1066 (1981). The Court today lightly glosses over this holding with the assertion that:
 
"Casey's testimony identifying two specific occasions on which he believed Stack had told untruths served as an adequate basis for this allegedly false defamatory editorial statement.  That testimony supports an inference that the allegedly false defamatory editorial statement was not the product of the publisher's imagination and was most assuredly not a calculated falsehood or lie."
 
   The mere fact that Stack may have lied on two previous occasions did not, as a matter of law, give the publisher carte blanche to accuse him of making other false statements, on [*544] the theoretical assumption that if Stack had lied before, surely he would always lie again.

   I think the result today is justified because there was no evidence, clear, convincing, or otherwise, that Casey made the allegation with "[a] high degree of awareness of [its] probable falsity," St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325 (1968); or that the allegation was the product of Casey's imagination; or so inherently[***28] improbable that only a reckless person would publish it.  Id. at 732. Casey testified that he viewed the Stack ad, "Has Erle Schafer Sold Out," as being:
 
"a smear and an innuendo.  And in my mind, at least, an untruth.  . . ." (Emphasis added.)
 
While this is only one "other occasion," the record does not indicate that Casey made his statement purely as a matter of whim, or momentary caprice.  Indeed, it establishes only that he could not recall every specific reason on which he based his statement, since more than a year and a half had elapsed since the editorial was published.  At most, the statement could be characterized as "rhetorical hyperbole." As the majority correctly notes, such hyperbole, in the circumstances of this case, falls within the boundaries of protected speech.  It is for this reason that I would reverse the judgment below.

   With these additional comments, I respectfully concur in this decision.

DISSENTBY: COLE

DISSENT:  
[**1047] Cole, J., dissenting:

   I dissent.  As I see it, the evidence gives rise to a clear jury question. 

IN RE: GLENN S. 
No. 167, September Term, 1981
 
Court of Appeals of Maryland
 
293 Md. 510; 445 A.2d 1029; 1982 Md. LEXIS 269

 June  1, 1982, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Lerner, J., pursuant to certiorari to the Court of Special Appeals.

DISPOSITION: Order reversed and case remanded for proceedings consistent with this opinion.  Costs to be paid by Anne Arundel County.

CORE TERMS:  juvenile, sitting, criminal case, exclusive original jurisdiction, general jurisdiction, delinquent, inherent power, right of appeal, new trial, powers granted, transferred, adult, Maryland Rule, delinquency proceeding, power to modify, common law, modify, special jurisdiction, crime of robbery, statutory power, revisory power, deadly weapon, returning, vacate, delinquency, enumerated, waive, older

COUNSEL: Gary W. Christopher, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

   [***2] Adriana V. Klich, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Stephen Rosenbaum, Assistant Attorney General, Warren B. Duckett, Jr., State's Attorney for Anne Arundel County, and Patrick Bell, Assistant State's Attorney for Anne Arundel County, on the brief, for appellee.

JUDGES: Murphy, C. J., and Smith, Eldridge, Cole, Davidson, Rodowsky and Couch, JJ.  Couch, J., delivered the opinion of the Court.

OPINIONBY: COUCH

OPINION: [*511] [**1029] The issue in this appeal is whether the Circuit Court for Anne Arundel County, sitting in its capacity as the juvenile court, had the inherent power to strike an order entered in a criminal case in the circuit court.  We hold today that when the circuit court exercises its powers as a juvenile court, it may exercise only those powers granted to it by statute, and it may not exercise powers it otherwise could exercise if it were sitting as a criminal court.
 
   Before proceeding to the facts, a short explanation of the jurisdiction of the juvenile court system is in order.  Ordinarily, the juvenile court n1 has exclusive original jurisdiction over a child n2 alleged to be delinquent. n3 Maryland Code (1974, [***3] 1980 Repl. Vol.), Courts & Judicial Proceedings Article, § 3-804 (a).  It may, however, waive that exclusive jurisdiction with respect to a petition which alleges delinquency by a child who is 15 years old or older, or is charged with committing an act, which if committed [**1030] by an adult, would be punishable by death or life imprisonment, if it conducts a waiver hearing, following notice to the parties involved, and makes its determination according to certain enumerated criteria.  Id. at § 3-817.  The case is then docketed as a criminal case in the circuit court.  See id. at § 1-501.  The juvenile court does not, however, have exclusive original jurisdiction over a child who is alleged to have committed certain serious crimes.  Code (1974, 1980 Repl. Vol., 1981 Cum. Supp.), Courts Article, § 3-804 (d).  Subsection [*512] 3-804 (d) (4) specifically excepts from the exclusive original jurisdiction of the juvenile court a child 16 years old or older who is alleged to have committed the crime of robbery with a deadly or dangerous weapon, or its attempt.  It also provides that the jurisdiction in the circuit court may be transferred to the juvenile court pursuant[***4] to the procedure established by Code (1957, 1982 Repl. Vol.), Article 27, § 594A.  That section allows the circuit court to transfer a case involving a child, excluded from the exclusive original jurisdiction of the juvenile court under § 3-804 (d) (4) of the Courts Article, to the juvenile court if it is in the best interests of the child or society. n4 Section 594A (b) sets forth the criteria to be used in making such a determination. n5 This is known as reverse waiver.

n1 The juvenile court is the circuit court of a county, or Baltimore City, except in Montgomery County where it is the district court.  Md. Code (1974, 1980 Repl. Vol., 1981 Cum. Supp.), Cts. & Jud. Proc. Art., § 3-801 (h).  For purposes of clarity we will refer to the circuit court, sitting as the juvenile court, as simply the juvenile court.

n2 A child is a person under the age of 18 years.  Code (1974, 1980 Repl. Vol.), Cts. & Jud. Proc. Art., § 3-801 (d).

n3 A delinquent child is one who has committed an act which, if committed by an adult, would constitute a crime.  Code (1974, 1980 Repl. Vol., 1981 Cum. Supp.), Cts. & Jud. Proc. Art., §§ 3-801 (j) and (k).

[***5] 

n4 The legislature recently amended § 594A to preclude the waiver to juvenile court of certain serious cases.  See 1982 Md. Laws, ch. 468.

 n5 Section 594A (b) states:

   "In making a determination as to waiver of jurisdiction the court shall consider the following:
 
(1) Age of child;
 
(2) Mental and physical condition of child;
 
(3) The child's amenability to treatment in any institution, facility, or program available to delinquents;
 
(4) The nature of the alleged offense; and
 
(5) The public safety."

   The appellant in this case was 16 years old when on or about November 2, 1980 he allegedly committed the crime of robbery with a deadly weapon. Jurisdiction was therefore in the circuit court pursuant to § 3-804 (d) (4) of the Courts Article.  On April 13, 1981, the circuit court granted a petition to transfer the case to the juvenile court pursuant to § 594A of Article 27.  The appellant was ordered to be held at Waxter Children's Center, but escaped from there on April 27.  He was apprehended on July 30.

   The basis of the issue with which we are faced was[***6] laid on August 7 when, apparently motivated by the escape, the State filed identical motions in both the circuit court and the juvenile court requesting reconsideration of the circuit court's § 594A reverse waiver order of April 13.  After a [*513] hearing on this motion, the juvenile court ordered jurisdiction returned to the circuit court. n6 The appellant noted an appeal to the Court of Special Appeals and we granted certiorari so that we could consider the novel question he presents: "Was the Court below empowered to waive juvenile jurisdiction acquired by way of reverse waiver from the criminal court?"

n6 The record states:

   "Upon the aforegoing 'Motion to Reconsider the Waiver by the Circuit Court of Jurisdiction and Transfer Jurisdiction to the Juvenile Court', it is this 31st day of August, 1981, by the Circuit Court for Anne Arundel County, sitting as a Juvenile Court,

   ORDERED, that jurisdiction in the above-captioned case be and is hereby transferred from the Juvenile Court, and RETURNED to the jurisdiction of the Circuit Court for Anne Arundel County as Criminal Case #24,622."
 
The State agrees in its brief that the order was that of the juvenile court rather than the circuit court: "[Judge Lerner's] Order of August 31, 1981 was clearly couched in terms of the juvenile court waiving its jurisdiction and transferring jurisdiction back to the adult court."

[***7]

   The State agrees that the order returning jurisdiction to the circuit court was that of the juvenile court, not that of the circuit court, see footnote 6, supra, and cites Ayre v. State, 291 Md. 155, 159-60, 433 A.2d 1150, 1153 (1981) for the proposition that the juvenile court had the common law power to modify or rescind a judgment entered by the circuit court during the term of the court in which the judgment was entered.  In that case the State argued that the Court of Special Appeals was correct in affirming a motion to dismiss the appeal of [**1031]a criminal conviction for distributing obscene material.  The Court of Special Appeals had denied the appellant's third motion to extend the time for filing the record because it was one day late.  The trial court, ostensibly acting pursuant to Maryland Rule 1013, then struck the order for appeal.  Twelve days later, however, the trial court vacated this dismissal order.  The State, in this Court, argued that the trial court lost its jurisdiction by striking the order to appeal, was consequently without authority to vacate its dismissal of the order to appeal, and, therefore, the Court of Special Appeals was correct in [***8] dismissing the appeal.

   [*514] This Court held that the action of the trial court vacating its dismissal was proper because
 
"'[i]n Maryland, all judgments are under the control of the court during the term in which they are entered, and during that time the court has inherent power to strike out or modify judgments in both civil and criminal cases.' Madison v. State, 205 Md. 425, 431, 109 A.2d 96, 99 (1954). In the absence of a statute or rule either modifying or rescinding this power, such authority survives.  See Owen v. Freeman, 279 Md. 241, 245, 367 A.2d 1245, 1247-48 (1977); Scott v. State, 223 Md. 376, 381, 164 A.2d 716, 719 (1960), and numerous citations therein.  See also J. Poe, Pleading and Practice § 388 (5th ed. by H. Tiffany 1925)." Id.
 
Ayre noted that Maryland Rule 625 has since supplanted this common law power in civil actions and that because of this inherent power, it did not need to decide whether § 6-408 of the Courts Article n7 applied in criminal actions.  Be that as it may, it is clear that the juvenile court may exercise only the powers granted to it by statute. n8 See Courts Article, § 3-801, et seq.[***9] These powers do not include the [*515] power to modify an order of the circuit court sitting in a criminal case.

n7 Section 6-408 states:

   "For a period of 30 days after the entry of a judgment, or thereafter pursuant to motion filed within that period, the court has revisory power and control over the judgment.  After the expiration of that period the court has revisory power and control over the judgment only in case of fraud, mistake, irregularity, or failure of an employee of the court or of the clerk's office to perform a duty required by statute or rule."
  
"[I]t would seem that the critical inquiry [as to whether § 6-408 applies to the order vacating the court's striking of the order to appeal,] is the scope to be given the terms 'judgment' and 'court' as used in this provision, words which are not defined in the statute." Ayre v. State, 291 Md. at 159, 433 A.2d at 1153.

n8 However, under certain unusual circumstances where the juvenile court has lost jurisdiction, the circuit court, sitting in equity, may hold a hearing to determine whether a transfer of jurisdiction to the criminal side of that court is proper.  See In re Miles, 269 Md. 649, 309 A.2d 289 (1973).

[***10]

   In Austin v. Director, 245 Md. 206, 225 A.2d 466 (1967), we held that the trial court had no power to order a new trial in a defective delinquency proceeding because its powers were limited to those enumerated in the statutory provisions relating to defective delinquents.

   "While the courts which hear defective delinquency proceedings are courts of general jurisdiction, they become courts of special or limited jurisdiction whenever they proceed to determine (with or without the aid of a jury) the status of persons alleged to be defective delinquents. In such cases, the courts instead of exercising their inherent powers are limited to the power and authority conferred on them by the provisions of Article 31B.  A court can be a court of general jurisdiction for some purposes and a court of limited jurisdiction for other purposes.  When therefore a court of general jurisdiction proceeds under a special statute it becomes a court of limited jurisdiction for the purpose of such proceeding.  See C.J.S., Courts § 2.  Accordingly, where a court of general jurisdiction undertakes to carry out a special power, a decision made in the exercise of such power is treated as a ruling[***11] of a court of limited jurisdiction and the presumption, applicable to a court of general jurisdiction, that it acted within the scope of its jurisdiction [**1032]does not apply.  See 20 Am.Jur.2d, Courts § 103.

   This Court has often had occasion to consider cases on appeal from lower courts involving the distinction between their special or limited jurisdiction and their general authority.  In Scherr v. Braun, 211 Md. 553, 128 A.2d 388 (1957), where we were concerned with the right of appeal to the courts from liquor license boards, it was said at p. 563:

   'It is apparent that in giving the right of appeal to courts, the Legislature conferred a [*516] special statutory jurisdiction on the courts and made the exercise of that jurisdiction the only right of the court to review the local board, to the exclusion of any common law remedy.  No principle is better established than that in exercising a statutory power, a court is without jurisdiction unless it complies with the statute.'" Id. at 209, 225 A.2d at 467-68.

   "While it is true that defective delinquent proceedings have been classified as civil in nature . . . and that in ordinary civil proceedings a[***12] court of general jurisdiction has inherent power to grant a new trial, it is also true that courts of special jurisdiction have no power to grant a new trial except as given to them by statute." Id. at 211, 225 A.2d at 469 (citations omitted).
 
See also Simpler v. State, ex rel. Boyd, 223 Md. 456, 462, 165 A.2d 464, 467 (1960) (appeal dismissed because circuit court was acting under "special and limited jurisdiction" of statute, which did not provide for appeal, in ordering State to make payment from Unsatisfied Claim and Judgment Fund, and statute which allowed appeal from final judgments in civil actions generally did not apply). n9 The same principle applies to juvenile causes.  We have held that in juvenile causes there is no statutory right of removal or change of venue because the juvenile causes statute makes no provisions for them.  In re Fletcher, 251 Md. 520, 531, 248 A.2d 364, 371 (1968), cert. denied, 396 U.S. 852, 90 S.Ct. 112, 24 L.Ed.2d 101 (1969); see Bullock v. State, 230 Md. 280, 286, 186 A.2d 888, 891 (1962) (no right of removal in defective delinquency proceeding).

n9 The effect of this decision was abrogated by the Legislature's passage of 1962 Md. Laws, ch. 49, which permitted an appeal from such a decision.  Cts. & Jud. Proc. Art., § 12-301 now explicitly provides for the right of appeal from a final judgment by a court in the exercise of special or limited jurisdiction.

[***13]

   The juvenile causes provisions of title 3, subtitle 8, of the [*517] Courts Article do not expressly or impliedly allow the juvenile court to modify decisions of the circuit court sitting in a criminal case. Because courts of special jurisdiction exercise only those powers granted to them by statute, the juvenile court in this case had no power to vacate the order of the circuit court, thus returning the case to the criminal side of the circuit court. Although the juvenile court has the statutory power to transfer jurisdiction of a case to the circuit court pursuant to § 3-817 of the Courts Article, that section only applies in cases where the juvenile court has exclusive original jurisdiction. Because the charge here was robbery with a deadly weapon, original jurisdiction was in the circuit court, see Courts Article, § 3-804 (d) (4), and § 3-817 has no application.  Jurisdiction in this case was originally in the circuit court, was transferred to the juvenile court and it remains there.

   Order reversed and case remanded for proceedings consistent with this opinion .

   Costs to be paid by Anne Arundel County. 

James Thomas Porter v. State of Maryland 
No. 160, September Term, 1981
 
Court of Appeals of Maryland
 
293 Md. 330; 444 A.2d 50; 1982 Md. LEXIS 259

 April  20, 1982, filed

   PRIOR HISTORY: [**1]

   Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County - Judge H. Chester Goudy, Jr.) JUDGE

OPINION: [*50] Order of Court, in accordance with the State's motion and consent thereto, remanding case to the Circuit Court for Anne Arundel County with directions to that Court to vacate the appellant's convictions and sentence and dismiss the information. 

COMMONWEALTH OF VIRGINIA, etc., ex rel. Helen Halsey v.KENNETH AUTRY 
No. 13, September Term, 1981
 
Court of Appeals of Maryland
 
293 Md. 53; 441 A.2d 1056; 1982 Md. LEXIS 226

 March  8, 1982, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Hopper, J., pursuant to certiorari to the Court of Special Appeals.

DISPOSITION: Judgment of the Circuit Court for Anne Arundel County vacated. Case remanded to that Court for further proceedings in accordance with this opinion.  Costs to be paid by appellee.

CORE TERMS:  duty of support, responding, child support, duty, imposable, illegitimate child, child support obligation, vacating, initiating, obligor, general principle, obligee, decree, previous order, grandmother, vacated, duty to support, reimbursement, terminating, nullifying, visitation, remedial, obligation to pay, authorize, terminated, custody, Paternity Act, illegitimate children, amount of support, husband and wife

COUNSEL: Joseph B. Spillman, Jr., Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Warren B. Duckett, Jr., State's Attorney for Anne Arundel County, and Cynthia M. Ferris, Assistant State's Attorney for Anne Arundel County, on the brief, for appellant.

   Steven F. Brown, with whom were The Legal Clinics of Cawley & Schmidt, P.A. on the brief, [***3] for appellee.

JUDGES: Murphy, C. J., and Smith, Eldridge, Cole, Davidson and Rodowsky, JJ. Davidson, J., delivered the opinion of the Court.

OPINIONBY: DAVIDSON

OPINION: [*54] [**1057] This case presents the question whether a Maryland court, acting pursuant to the Uniform Reciprocal Enforcement of Support Act (URESA), Maryland Code (1957, 1979 Repl. Vol.), Art. 89C, has the authority to order a parent to support an illegitimate child, notwithstanding the fact that a court in another jurisdiction has vacated its prior order imposing a duty of support.
 
   On 4 January 1972, the Juvenile and Domestic Relations Court for Bergen County, New Jersey (New Jersey Court), adjudicated the appellee, Kenneth Autry (father), to be the father of Cynthia Halsey (child), born 31 October 1971.  The New Jersey Court ordered the father to pay $10.00 per week to the Bergen County Welfare Board for the support of the child.  On 23 April 1973, the New Jersey Court ordered the father to pay $20.00 per week for the support of the child. On 4 June 1975, the New Jersey Court, at the request of the child's mother, vacated the 23 April 1973 order of support, reserving any arrearages to the Bergen County Welfare[***4] Board. n1

n1 The 23 April 1973 order does not appear in the record.

   [*55] Since 1 May 1978, the child has been in the physical custody of Helen Halsey, her maternal grandmother (grandmother).  She has resided with her grandmother in Virginia, and has received public assistance benefits from that state.  The grandmother has been designated as the payee of these benefits.

   On 14 November 1979, in the Juvenile and Domestic Relations District Court of Wythe County, Virginia (Virginia Court), the Virginia Department of Welfare filed a petition on behalf of the grandmother pursuant to the provisions of the Revised Uniform Reciprocal Enforcement of Support Act, Va. Code § 20-88.19 (1950, 1975 Repl. Vol.).  The petition sought support in the amount of $119.00 per month and reimbursement for public assistance paid from 1 May 1978.

   At the time the petition was filed the father was residing in Glen Burnie, Maryland.  The Virginia Court, pursuant to Va. Code § 20-88.22, transmitted the petition to Maryland where[***5] it was filed in the Circuit Court for Anne Arundel County pursuant to Md. Code, Art. 89C, § 18.

   On 14 October 1980, after a hearing, the trial court entered an order dismissing the petition.  In that order, the trial court, relying on Chance v. LaPausky, 43 Md.App. 84, 402 A.2d 1329 (1979), stated:

   "It appears to the Court that the New Jersey Court at Complainant's request by Order dated June 4, 1975, circumscribed the obligation of Respondent, Kenneth Autry, to pay support reserving only the [**1058] New Jersey Welfare Support arrearages.  By doing so it left no obligation imposed or imposable within the meaning of Section 7 of Article 89C.

   . . .

   "It is significant that Petitioners here provided support for the child from May 1, 1978 to the present, such support beginning after the New Jersey Court had terminated Autry's obligation to pay any support.

   [*56] "Assuming that the New Jersey Court's Order of June 4, 1975 means what it says and does in fact terminate Autry's duty to support (either imposed or imposable as referred to in Section 7 of Article 89C) then there is no right in Virginia to collect from Autry that which Autry has no lawful obligation[***6] to pay." (Emphasis added.)

   The Virginia Department of Welfare appealed to the Court of Special Appeals. We issued a writ of certiorari before consideration by that Court.  We shall vacate the judgment of the trial court.

   The relevant statutory provisions of Art. 89C are § 2 (g), § 4, and § 7.

   Section 2 (g) provides:
 
"'Duty of support' includes any duty of support imposed or imposable by law, or by any court order, decree or judgment, whether interlocutory or final, whether incidental to a proceeding for divorce, judicial separation, separate maintenance or otherwise." (Emphasis added.)

   Section 4 provides:

   "Duties of support arising under the law of this State, whether applicable under § 7, bind the obligor, present in this State, regardless of the presence or residence of the obligee." (Emphasis added.)

   Section 7 provides:

   "Duties of support applicable under this article are those imposed or imposable under the laws of any state where the obligor was present during the period for which support is sought.  The obligor is presumed to have been present in the responding state during the period for which support is sought until otherwise[***7] shown." (Emphasis added.)

   The general purposes of Art. 89C are to improve and [*57] extend the enforcement of duties of support.  Art. 89C, § 1. n2 More particularly, one of the purposes of Art. 89C is to provide liberal enforcement in Maryland of the claims of nonresident parents and children entitled to support.  Zouck v. Zouck, 204 Md. 285, 300-01, 104 A.2d 573, 580 (1954). Still another purpose is to provide liberal enforcement in Maryland of the claims of out-of-state welfare departments which have made support payments to nonresident parents and children entitled to support.  Art. 89C, § 8. n3 The Act has broad remedial purposes and, therefore, [**1059] should be liberally construed.  E.g., Lambrou v. Berna, 154 Me. 352, 356, 148 A.2d 697, 700 (1959); State of Illinois ex rel. Shannon v. Sterling, 248 Minn. 266, 274, 80 N.W.2d 13, 19 (1956); Davidson v. Davidson, 66 Wash.2d 780, 785, 405 P.2d 261, 265 (1965); see, e.g., Keesling v. State, 288 Md. 579, 589, 420 [*58] A.2d 261, 266 (1980); James v. Prince George's County, 288 Md. 315, 335, 418 A.2d 1173, 1184 (1980); Smith v. Higinbothom, 187 Md. 115, 130, 48 A.2d 754, 762 (1946);[***8] see also 3 Sutherland, Statutory Construction § 60.01-02 (4th ed. C. Sands 1974).

n2 Art. 89C, § 1 provides:

   "The purposes of this article are to improve and extend by reciprocal legislation the enforcement of duties of support and to make uniform the law with respect thereto."
n3 Art. 89C, § 8 provides:

   "Whenever the State or a political subdivision thereof furnishes support to an obligee it has the same right to invoke the provisions hereof as the obligee to whom the support was furnished for the purpose of securing reimbursement of expenditures so made and of obtaining continuing support." (Emphasis added.)

   Article 89C is patterned upon the URESA prepared by the Council of State Governments and the National Conference of Commissioners on Uniform State Laws. The Commissioners' Prefatory Note to the 1950 Act states:
 
"Of course the destitute family (the obligee) may exercise rights under the act. But the state or political subdivision thereof may also seek reimbursement for support already furnished to the family (Section 8).  This section will allow the states to recapture a good part of the $200,000,000 a year now spent in supporting deserted families and is perhaps the most important provision of the act." URESA, 9A U.L.A. 752 (1979) (emphasis added).

   The Commissioners' Prefatory Note to the 1968 Revised Act states:

   "Over the years many thousands of cases have been brought under the Act and many millions of dollars have been recovered.  As a result the duty of family support is placed where it belongs, on the shoulders of the one who, under state law, owes the duty. The state is thus relieved from keeping on its relief rolls those, often in destitute circumstances, to whom the duty is owed." URESA, 9A U.L.A. 644 (1979) (emphasis added).

[***9]

   Article 89C embodies a statutory scheme by which nonresident parents and children entitled to support, as well as welfare departments, can enforce duties of support across state lines.  URESA, 9A U.L.A. 748 (1979).  A URESA proceeding is commenced when a person to whom a duty of support is owed files a petition, Art. 89C, § 9, n4 in a court of the initiating state, the state in which that person resides.  Art. 89C, § 2 (c). n5 After determining that a duty of support exists, the court in the initiating state forwards the petition to a court of the responding state, the state where the parent allegedly owing a duty of support resides.  Art. 89C, § 14(a). n6 The court of the responding state, Art. 89C, § 2(d), n7 must obtain jurisdiction over the parent, Art. 89C, § 18(a)(1), n8 [*59] hold a hearing, Art. 89C, § 18 (b), n9 and determine whether a duty of support exists, and if so, the extent of that duty. Art. 89C, § 23. n10 In determining whether and to what extent a duty of support is imposed or imposable, ordinarily it is the law of the responding state, and not the law of the initiating state, which governs.  Art. 89C, §§ 2, 4, & 7.  E.g., Engelson v. Mallea, 180[***10] N.W.2d 127, 131 (Iowa 1970); Rosenberg v. Rosenberg, 152 Me. 161, 163, 125 A.2d 863, 864 (1956); Mahan v. Read, 240 N.C. 641, 648, 83 S.E.2d 706, 712 (1954); Childers v. Childers, 19 N.C.App. 220, 224-25, 198 S.E.2d 485, 488 (1973); see McCabe v. McCabe, 210 Md. 308, 314-15, 123 A.2d 447, 450 (1956). If the court of the responding state finds a duty of support, it may order the parent to furnish support or reimbursement, and may take appropriate steps to enforce compliance with that order.  Art. 89C, § 23. n11 The remedies provided by the Act are in addition to any other remedies that may exist.  Art. 89C, § 3. n12 See Barrell v. Barrell, 288 Md. 19, 22, 415 A.2d 579, 580-81 (1980).

n4 Art. 89C, § 9 provides:

   "All duties of support, including arrearages, are enforceable by petition irrespective of relationship between the obligor and obligee."
n5 Art. 89C, § 2 (c) provides:
 
"'Initiating state' means any state in which a proceeding pursuant to this or a substantially similar reciprocal law is commenced."
n6 Art. 89C, § 14 (a) provides in pertinent part:
 
"If the court of this State acting as an initiating state finds that the petition sets forth facts from which it may be determined that the obligor owes a duty of support and that a court of the responding state may obtain jurisdiction of the obligor or his property, the court shall so certify and shall cause three copies of (1) the petition, (2) the certificate and (3) this article to be transmitted to the court of the responding state."
[***11] 

n7 Art. 89C, § 2 (d) provides:
 
"'Responding state' means any state in which a proceeding pursuant to the proceeding in the initiating state is or may be commenced."
n8 Art. 89C, § 18 (a) (1) provides:
 
"After the court of this State acting as a responding state has received from the court of the initiating state the aforesaid copies the clerk of the court shall docket the case and give notice of his action to the obligee's representative."
n9 Art. 89C, § 18 (b) provides in pertinent part:
 
"It shall be the duty of the obligee's representative . . . to . . . request . . . a hearing."
n10 Art. 89C, § 23 provides:

   "If the court of the responding state finds a duty of support it may order the obligor to furnish support or reimbursement therefor and subject the property of the obligor to such order."
n11 See n.10 above.

n12 Art. 89C, § 3 provides:

   "The remedies herein provided are in addition to and not in substitution for any other remedies."

   [**1060] Here the record shows that at the time the petition was [***12]filed, the child resided in Virginia and the father resided in Maryland.  The petition was filed in a court in Virginia, the initiating state, and was forwarded to a court in Maryland, the responding state.  Thus, whether and to what extent a duty of support is imposed or imposable is governed by Maryland law.  Art. 89C, §§ 2, 4, & 7.

   [*60] At common law, a father of an illegitimate child owed no duty of support. Fiege v. Boehm, 210 Md. 352, 358, 123 A.2d 316, 320 (1956); see 10 Am.Jur.2d Bastards § 68 at 895 (1963).  As long ago as 1781, such a duty was imposed in Maryland by a statute that provided criminal penalties for nonsupport of an illegitimate child. n13 Thereafter, this Court, applying that Act and its successors, has consistently enforced a father's duty to support an illegitimate child. Dorsey v. English, 283 Md. 522, 529-30, 390 A.2d 1133, 1138 (1978); State v. Hardesty, 132 Md. 172, 176, 103 A. 461, 462 (1918); Oldham v. State, 5 Gill 90, 93 (1847).

n13 1781 Md. Laws, ch. 13, § 1 provided in pertinent part:
 
"[A]ny justice of the peace . . . informed of any female person having an illegitimate child . . . shall call on her for security to indemnify the county from any charge that may accrue by means of such child, and, upon neglect or refusal, to commit her . . . to be . . . safely kept until she shall give such security; but in case she shall on oath discover the father, then the said justice is hereby required to discharge her . . . and directed to call such father . . . before him, and shall cause him to give security . . . to indemnify the county from all charges that may arise for the maintenance of such child. . . ."

[***13]

   In 1962, as part of a broad legislative plan to restructure the criminal bastardy laws, Art. III, § 38 of the Maryland Constitution was amended. n14 The amendment expressly provides that a father's obligation to support an illegitimate child is a duty enforceable by attachment and imprisonment.  Brown v. Brown, 287 Md. 273, 282, 412 A.2d 396, 401 (1980).

n14 Art. III, § 38, as amended by 1962 Md. Laws, ch. 121 and ratified 6 November 1962, provides:

   "No person shall be imprisoned for debt, but a valid decree of a court of competent jurisdiction or agreement approved by decree of said court for the support of a wife or dependent children, or for the support of an illegitimate child or children, or for alimony, shall not constitute a debt within the meaning of this section." (Emphasis added.)

   The Paternity Act, Md. Code (1957, 1981 Repl. Vol.), Art. 16, §§ 66A to 66P, was enacted by the 1963 Maryland Laws, ch. 722.  That Act repealed Md. Code (1957), Art. 12 "Bastardy and Fornication," the then[***14] most recent successor to the 1781 Maryland Laws, ch. 13, § 1, and transformed the character of the proceeding in which a father's paternity and [*61] his duty to support an illegitimate child were determined from criminal in nature, Oldham, 5 Gill at 93, to civil in nature.  Thompson v. Thompson, 285 Md. 488, 490-91, 404 A.2d 269, 271 (1979).

   The primary purposes of the Paternity Act are to impose the basic obligations and responsibilities of parenthood upon both parents of illegitimate children, and to insure that illegitimate children enjoy the same right of support as legitimate children.  Dorsey, 283 Md. at 529, 390 A.2d at 1138; Corley v. Moore, 236 Md. 241, 243, 203 A.2d 697, 698 (1964); Art. 16, § 66A.  An additional purpose is to shift the burden of support from the taxpayers to the parents of the illegitimate child. Mayor of Rockville v. Randolph, 267 Md. 56, 61, 296 A.2d 574, 576 (1972); Shelley v. Smith, 249 Md. 619, 630, 241 A.2d 682, 688 (1968). The Paternity Act effectuates these purposes by assigning to parents of illegitimate children the same support responsibilities as are assigned to parents of legitimate children by Md. Code (1957, [***15] 1978 Repl. Vol.), Art. 72A, § 1. n15

n15 Art. 72A, § 1 provides in pertinent part:

   "The father and mother are the joint natural guardians of their child under eighteen years of age and are jointly and severally charged with its support, care, nurture, welfare and education."

   There can be no question that under Maryland law a duty of support is imposed upon the father of an illegitimate child. [**1061] The question here concerns the circumstances under which such a duty of support is "imposable" by a Maryland court acting as a responding state court in a URESA proceeding.

   Ordinarily, as conceded by the father here, a duty of support is imposable by a responding state court in a URESA proceeding even though no previous order of support exists.  E.g., Clarkston v. Bridge, 273 Or. 68, 72, 539 P.2d 1094, 1096 (1975); Brown v. Thomas, 221 Tenn. 319, 323, 426 S.W.2d 496, 498 (1968); Yetter v. Commeau, 84 Wash.2d 155, 162, 524 P.2d 901, 905 (1974); see also Banks v. McMorris, 47 Cal.App.3d[***16] 723, 727, 121 Cal.Rptr. 185, 188 (1975); Harmon v. Harmon, 160 Cal.App.2d 47, 53, 324 P.2d 901, 905 (1958): Johnson v. Ross, Ind.App., 405 N.E.2d 569, 571 [*62] (1980). As stated by W. Brockelbank and F. Infausto in their book, Interstate Enforcement of Family Support 39 (2d ed. 1971):
 
"[The duty of support], of course, may grow out of the order of support or a judgment or decree but is equally a duty if it never has received judicial attention and now is the basis of litigation for the first time under the Act."

   Illustrative of this general principle is the case of Johnson v. Ross, Ind.App., 405 N.E.2d 569 (1980). There, a husband and wife were divorced but no support was ordered because the husband alleged that no children were born of the marriage.  Subsequently, the wife instituted a URESA proceeding for support of her child.  The husband answered, stating that he was not the child's father and contending that there had never been an adjudication imposing a duty on his part to support the child.  In concluding that the responding court had the authority to impose a duty of support, the Court of Appeals of Indiana stated:

   "We note at the outset[***17] Johnson is mistaken in his assertion that an action under the Act requires a pre-existing judicial determination of support duty. He correctly concludes the Act does not 'create' obligations of support.  It does, however, enforce such responsibilities, and broadly defines 'duty of support' to include 'any duty of support imposed or imposable by law, or by any court order, decree or judgment, whether interlocutory or final, whether incidental to a proceeding for divorce, legal separation, separate maintenance or otherwise.' IC 31-2-1-2(f).  It is evident no previous court judgment is required to create an obligation which is 'imposable' by law. Banton v. Mathers, (1974) 159 Ind.App. 634, 309 N.E.2d 167 (the Act's remedy need not be predicated upon a divorce decree); Olson v. Olson, (Mo. App. 1976) 534 S.W.2d 526; Banks v. McMorris, (1975) 47 Cal.App.3d 723, 121 Cal.Rptr. [*63]185. Olson correctly observed '[a] duty of support "imposable by law" is one arising out of a relationship -- a duty of support to be adjudicated' (emphasis in original).  534 S.W.2d 530." Johnson, Ind.App., 405 N.E.2d at 571.
 
Under this general principle, if the New[***18] Jersey Court had not imposed a previous order of support in the instant case, a duty of support would have been imposable by the Maryland court acting as a responding state court.
 
   Here, however, the New Jersey Court had imposed a duty of support upon the father in an order that it subsequently vacated. In our view, the effect of the vacating order was to nullify the previous order imposing a duty of support and, therefore, to leave the case in the same posture as if the previous order of support had never been imposed.  If the general principle were to be applied here, the duty of support existing under Maryland law would be imposable by a Maryland court acting as a responding state court in a URESA proceeding.  Such a result would be consonant with the broad remedial purposes of the Act.

   Moreover, even if we did not view the New Jersey Court's vacating order as a nullifying order, we would reach the same conclusion.  That vacating order can be modified by the New Jersey Court when required in the best interests of the child by a change in circumstances N.J. Stat. Ann. § 9:16-2 to 4 (1976); N.J. Stat. Ann. § 2A:34-23 (1976); e.g. Kopak v. Polzer, 4 N.J. 327, 332-33, [**1062][***19] 72 A.2d 869, 871 (1950); C.M. v. C.C., 170 N.J. Super. 586, 591, 407 A.2d 849, 852 (1979); see also Bergen County Welfare Bd. v. Cueman , 164 N.J. Super. 401, 404, 396 A.2d 620, 622 (1978). Thus, we do not agree with the trial court's assumption that the New Jersey Court's vacating order established that the father's duty to support the child was permanently terminated. Indeed, that vacating order did nothing more than determine that at a given time, under given circumstances, under New Jersey law, the father was not required to pay any amount of money for child support. Thus, in our view, the vacating order, if not viewed as a nullifying order, is no different from any other [*64] order affecting child support issued by a court of a jurisdiction other than Maryland.

   Ordinarily, a responding state court in a URESA proceeding has the authority to consider child support matters and to enter whatever support orders are proper, notwithstanding any action taken in a prior judicial proceeding.  Thus, a responding state court has the authority to issue an independent order fixing an amount of support different from that previously ordered by a court.  E.g., Elkind v. Byck[***20] , 67 Cal.Rptr. 404, 407, 439 P.2d 316, 319 (1968); Thompson v. Thompson, 93 So.2d 90, 93 (Fla. 1957); Moore v. Moore, 252 Iowa 404, 411, 107 N.W.2d 97, 100-01 (1961); Balestrine v. Jordan, S.C., 272 S.E.2d 438, 439 (1980); Davidson, 66 Wash.2d at 786, 405 P.2d at 264-65; see also Rohrer v. Kane, Colo.App., 609 P.2d 1121, 1122 (1980); Abb v. Crossfield, 23 Md. App. 232, 237, 326 A.2d 234, 238 (1974); Olson v. Olson, 534 S.W.2d 526, 530 (Mo.App. 1976); Jaramillo v. Jaramillo, 27 Wash.App. 391, 395, 618 P.2d 528, 530 (1980). But see Bushway v. Riendeau, 137 Vt. 455, 463-64, 407 A.2d 178, 182 (1979).

   Illustrative of this general principle is Rohrer v. Kane,    Colo.App.   , 609 P.2d 1121 (1980). There, a husband and wife were divorced by a California court that ordered the husband to pay support for two children.  Subsequently, the wife instituted a URESA proceeding for an increase in the amount of child support previously awarded by the California court.  In concluding that the responding Colorado court had the authority to increase the amount of support, the court recognized that a proceeding under URESA is an independent action and stated: [***21] 

   "We disagree with respondent's assertion that URESA cannot be used if the effect is to increase the amount of support over that ordered by the court originally dissolving the marriage.  The purpose of URESA is to provide for the enforcement of duties of support.  To achieve this end, the act provides that any remedies under the act are in [*65] addition to, and are not in substitution for any other remedies.  In light of the purposes of the act and the legislative grant of broad powers to fashion the necessary remedies, we conclude that URESA must be liberally construed, and thus, that Colorado courts have authority to order child support under the provisions of this act commensurate with the current needs of the children and the abilities of the respondent, without being limited by previous support orders." Rohrer, Colo.App., 609 P.2d at 1122 (citations omitted).
 
Under this general principle, if the New Jersey Court had entered an order of support in the instant case, the Maryland court would, nonetheless, have the authority to consider the matter of child support and to enter an order in an amount different from that previously entered by the New Jersey Court. [***22]

   Here, however, the New Jersey Court had entered an order of support which it subsequently vacated. That vacating order, if not viewed as a nullifying order, is no different from any other order affecting child support issued by a court of a jurisdiction other than Maryland.  If the general principle were to be applied here, the Maryland court would have the authority to enter an order, if warranted by the child's needs, requiring the father to pay child support. Such an order would, if issued, do nothing more, in effect, than increase the amount of child support previously ordered by the [**1063] New Jersey Court's vacating order.  Again, such a result would be consonant with the broad remedial purposes of the Act.

   Courts in some jurisdictions, under circumstances other than those here, have viewed an order establishing that a father need not make previously ordered child support payments as an order "terminating," "excusing," "suspending," "relieving," or "discharging" child support obligations.  Such courts have determined, on the basis of varying rationales, that URESA does not authorize a responding state court to enter a support order after a prior [*66] judicial [***23] order explicitly or implicitly establishing that a father need not make previously ordered child support payments.  E.g., State ex. rel. Arvayo v. Guerrero, 21 Ariz.App. 173, 176, 517 P.2d 526, 529 (1974) (child support obligation "terminated"); Moffat v. Moffat, 27 Cal.3d 645, 659-60, 165 Cal.Rptr. 877, 885-86, 612 P.2d 967, 975-76 (1980) (child support obligation "excused"); Ray v. Pentlicki, 375 So.2d 875, 878 (Fla.App. 1979) (child support obligation "suspended"); Cochran v. Cochran, 263 So.2d 292, 293 (Fla.App. 1972) (child support obligation "relieved"); Chance, 43 Md.App. at 87, 402 A.2d at 1331) (child support obligation "implicitly discharged").

   In virtually all of these cases, the order establishing that a father need not make previously ordered child support payments was entered because the mother had violated previously existing court orders awarding visitation rights to the father.  In these cases, the withholding of child support was not premised upon the child's needs, but rather, was utilized for the purpose of compelling the mother to comply with the court's previous visitation orders. Moreover, courts in still other jurisdictions, under circumstances[***24] in which a mother had violated previously existing custody orders, have reached the opposite conclusion and have held that URESA authorizes a responding state court to enter whatever support orders are proper, notwithstanding a previous judicial order "terminating," "relieving," or "abating" child support obligations.  E.g., Gruber v. Wallner, 198 Colo. 235, 238-39, 598 P.2d 135, 137 (1979) (child support obligation "relieved"); Kansas State Dept. of Social & Rehabilitation Servs. v. Henderson, Colo.App., 620 P.2d 60, 61 (1980) (child support obligation "abated"); Cobbe v. Cobbe, 163 A.2d 333, 335-36 (D.C. 1960) (child support obligation "abated"); State of Maine, Dept. of Human Servs. ex rel. Horton v. Horton, 99 Mich.App. 90, 92, 297 N.W.2d 622, 623 (1980) (child support obligation "terminated"); cf. Clark v. Clark, 246 Cal.App.2d 619, 623, 54 Cal.Rptr. 875, 877 (1966) (custody awarded to father -- no explicit order "terminating" father's obligation to pay child support to mother).  But cf. [*67]Hethcox v. Hethcox, 146 Ga.App. 430, 432-33, 246 S.E.2d 444, 446 (1978); State of New Jersey v. Morales, 35 Ohio App.2d 56, 61-3, 299 N.E.2d 920, 924 (1973)[***25] (custody awarded to father -- no explicit order "terminating" father's obligation to pay child support to mother).

   All of these cases are inapposite.  In the instant case, the mother is not a recalcitrant violator of a previous visitation or custody order.  We are, therefore, not concerned with the propriety of withholding support payments in order to compel a recalcitrant mother's compliance. n16 Rather, we are here concerned solely with the child's needs.  Under the circumstances here, we shall apply the general principle that a responding state court in a URESA proceeding has the authority to consider child support matters and to enter whatever orders are proper, not only when a previous order of child support does not exist, but also when an order affecting child support has been entered in a prior judicial proceeding.

n16 We note that in Maryland the fact that a custodial parent violates a previously existing court order awarding visitation rights to the noncustodial parent does not terminate the noncustodial parent's obligation of support. Stancill v. Stancill, 286 Md. 530, 538, 408 A.2d 1030, 1035 (1979); Seltzer v. Seltzer, 251 Md. 44, 45, 246 A.2d 264, 265 (1968).

[***26]

   Here, on 4 June 1975, the New Jersey Court, at the request of the mother, vacated a previous order requiring the father to pay child support. Subsequently, there has [**1064] been a substantial change in circumstances. Since 1 May 1978, the child has been in the physical custody of her grandmother, has resided in Virginia with her grandmother, and has received public assistance benefits from that State.

   This URESA proceeding was initiated by the Virginia Department of Welfare. It is an independent action.  Its purpose is to provide for the enforcement of duties of support.  The remedies available in this proceeding are in addition to and not in substitution for any other remedies.  In light of URESA's purposes, the Act must be liberally construed to authorize the Maryland court to order child support commensurate [*68] with the child's current needs without being limited by previous court orders.

   In this URESA proceeding, in which the Maryland court is acting as the responding state court, the law of Maryland governs so that whether and to what extent a duty of support is imposed or imposable is dependent upon Maryland law.  Under Maryland law, a duty of support is constitutionally[***27] and statutorily imposed upon the father of an illegitimate child. Whether the New Jersey Court's vacating order be viewed as a nullifying order or as an order affecting support, the Maryland court has the authority to enter an order, if warranted by the child's needs, requiring the father to pay child support. This result is consonant with the broad remedial purposes of the statutory scheme embodied in the Act.

   Under the present circumstances, the trial court erred in dismissing the URESA petition. n17 Accordingly, we shall vacate the judgment of the trial court and shall remand the case to that court for further proceedings.

n17 The trial court's reliance on Chance v. LaPausky, 43 Md.App. 84, 402 A.2d 1329 (1979), was misplaced.  There, a husband and wife were divorced.  The decree stated that the mother was to have custody of the child and "be chargeable with her support and maintenance." The Court of Special Appeals, interpreting that decree as implicitly discharging the father from a statutorily imposable duty to support the child, and, therefore, as an order terminating his support obligation, held that URESA did not authorize the entry of a support order.  No petition seeking a writ of certiorari was filed.

   This Court has not yet considered the issue decided by the Court of Special Appeals in Chance.  Because the question whether an order charging a custodial parent with support and maintenance of a child implicitly and permanently terminates the noncustodial parent's duty of support is not the question presented in this case, we express no opinion as to whether we would reach the same conclusion reached by the Court of Special Appeals in Chance.

[***28]

   Judgment of the Circuit Court for Anne Arundel County vacated.

   Case remanded to that Court for further proceedings in accordance with this opinion.

   Costs to be paid by appellee. 

GEOFFREY D. CANT and F. CARVEL PAYNE v. EVELYN M. BARTLETT,Pers. Rep. of the Estate of J. Kemp Bartlett 
No. 50, September Term, 1981
 
Court of Appeals of Maryland
 
292 Md. 611; 440 A.2d 388; 1982 Md. LEXIS 208

 February  9, 1982, Decided

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals.  Circuit Court for  Anne Arundel  County, Wray, J.

DISPOSITION: Judgment of the Court of Special Appeals dismissing the appeal affirmed; costs to be equally divided between the parties.

CORE TERMS:  slander, libel, defamation, final judgment, appealable, personal representative, spoken, common law, immediately appealable, deceased, verbal, final order, slanderous, abated, administrator, decree, speaking, revival, collateral order, actionable, scandal, executor, decedent, revivor, founded, final judgment rule, interlocutory, substitution, abatement, appealability

COUNSEL: Robert A. Zarnoch and Linda H. Lamone, Assistant Attorneys General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellants.

   W. [***3]  Porter Ellington, with whom was Alan V. Cecil on the brief, for appellee.

JUDGES: Murphy, C. J., and Smith, * Digges, Eldridge, Cole, Davidson and Rodowsky, JJ.  Smith, J., delivered the opinion of the Court.

* Digges, J., 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: SMITH

OPINION: [*612] [**388] We shall hold in this case that the order of a trial judge permitting substitution of the personal representative of a deceased litigant as plaintiff in an action for libel was not an appealable final order. Hence, we shall affirm the order of the Court of Special Appeals dismissing the appeal from the trial judge's action.  Because, however, it would be a waste of time for these parties to go back, try the case, and then learn on appeal that the action abated by the death of the plaintiff, we shall set forth the basis of our view that the trial judge erred when he permitted substitution of the personal representative of the deceased.

   J. Kemp Bartlett sued Geoffrey D. Cant and F. [***4] Carvel Payne in the Circuit Court for Anne Arundel County.  Only an action [**389] for libel remained in the suit after demurrers to certain counts were sustained.  Bartlett died.  Thereafter, a motion was made to substitute his personal representative as the party plaintiff.  Cant and Payne opposed the motion, [*613] contending that the defamation action had abated by the death of Bartlett.  They appealed to the Court of Special Appeals.  Upon motion of Mrs. Bartlett, who is the personal representative, the intermediate appellate court dismissed the appeal on the ground that it was not an appeal from a final order. We then granted the writ of certiorari in order that we might address the issue.

   I Appealability

   At issue here is whether the circuit court's order of substitution and revival is a final judgment for the purposes of appeal within the meaning of Maryland Code (1974) § 12-301, Courts and Judicial Proceedings Article.  That section provides in pertinent part:

   "Except as provided in § 12-302, a party may appeal from a final judgment entered in a civil . . . case by a circuit court.  The right of appeal exists from a final judgment entered by a court in the[***5] exercise of original, special, limited, statutory jurisdiction, unless in a particular case the right of appeal is expressly denied by law.  . . ."
 
There is no contention here that the appeal comes within one of the exceptions set forth in § 12-302.  Likewise, there is no claim that the order here is from one of the interlocutory orders listed in § 12-303 from which an appeal is permitted.

   The leading case of Peat & Co. v. Los Angeles Rams, 284 Md. 86, 394 A. 2d 801 (1978), sheds considerable light on what constitutes an appealable final judgment. That case involved an accounting firm's motion to require the withdrawal of a Baltimore City law firm from further representation of the Rams. The circuit court denied the motion.  An appeal then was taken to the Court of Special Appeals, which dismissed the appeal as not permitted by law.

   When the case reached us, we dealt with the issue of whether the order refusing to disqualify the law firm from further participation in the proceedings was a "final judgment" [*614] within the contemplation of § 12-301.  We noted in that case that the General Assembly in § 12-101 (f) of the Courts and Judicial Proceedings Article[***6] had defined "final judgment" as "a judgment, decree, sentence, order, determination, decision, or other action by a court . . . from which an appeal, application for leave to appeal, or petition for certiorari may be taken." Judge Digges pointed out for the Court, however, that, "as this definition implies, it is ultimately for this Court to decide which judgments or orders are final and therefore appealable under section 12-301.  Warren v. State, 281 Md. [179], 183, 377 A. 2d [1169], 1171 [(1977)]." 284 Md. at 91. Quoting United States Fire Ins. v. Schwartz, 280 Md. 518, 521, 374 A.2d 896 (1977), overruled, Department of Public Safety v. LeVan, 288 Md. 533, 419 A.2d 1052 (1980), we said that the prior attempts of this Court to determine if a particular trial court action is appealable do not always involve questions readily capable of delineation.  The underlying policy of the final judgment rule is that piecemeal appeals are disfavored. Accordingly, we have stated that as a general rule an appealable judgment is one that "must be so final as to determine and conclude rights involved, or deny the appellant means of further prosecuting or defending his rights and[***7] interests in the subject matter of the proceeding." 280 Md. at 521.

   In the course of the discussion in Peat & Co. we said that the trial court's refusal to disqualify the attorneys in question had in no way precluded Peat & Co. from fully defending its interest in the pending law suit, or concluded the question of its liability.  We held that in that context the order was not a final judgment. 284 Md. at 91.

   The Court addressed the argument that the circuit court's order was appealable as a "collateral order," which is an exception to the final order requirement.  Citing the Court's application of the collateral order exception in Stewart v. State, 282 Md. 557, 571, [**390] 386 A.2d 1206 (1978), and Jolley v. State, 282 Md. 353, 357, 384 A.2d 91 (1978), Judge Digges reiterated for the Court in Peat & Co. the ambit of the exception:
 
[*615] "The concept is narrow in scope, however, for, as the Supreme Court has articulated, if the order is to come within the 'small class' of cases included in the final judgment rule under Cohen it must meet four requirements: '[T]he order must [(1)] conclusively determine the disputed question, [(2)] resolve[***8] an important issue [,(3) be] completely separate from the merits of the action, and [(4)] be effectively unreviewable on appeal from a final judgment.' Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S. Ct. 2454, 57 L.Ed.2d 351 (1978) (footnote omitted); see Cohen v. Beneficial Industrial Loan Corp., 337 U.S. [541,] 546 [, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949)]." 284 Md. at 92.

   As indicated, we deemed the circuit court's order refusing disqualification as not immediately appealable. In support of this conclusion, Judge Digges noted for the Court: (1) the potential floodgate effect incident to appeals concerning the propriety of a trial court's ruling on particular facts; (2) that the question of whether to disqualify counsel was one addressed to the discretion of the trial court; and (3) the absence of sufficient import to warrant immediate appellate review because serious and unsettled questions were not presented. Id. at 96-97. We also declined application of the interlocutory appeal statute. Id. at 98.

   As recently pointed out in Lewis v. Lewis, 290 Md. 175, 182, 428 A.2d 454 (1981), and Pappas v. Pappas, 287 Md. 455, 460, 413 A.2d 549[***9] (1980), generally it is only those interlocutory orders specified in § 12-303, Courts and Judicial Proceedings Article, which are immediately appealable.

   Thus, as was stated in In re Buckler Trusts, 144 Md. 424, 125 A. 177 (1924), a decree or an order, to be appealable, "must be so far final as to determine and conclude the rights involved in the action.  . . ." 144 Md. at 427 (emphasis added).  At issue in that case was the appealability of a decree appointing substituted trustees pursuant to a deed of trust, and an order striking from the files a document submitted in opposition to that appointment.  In dismissing the [*616] appeal, the Court observed that the appellant had no direct interest in the subject matter of the litigation and that the appellant improperly intervened.  Id. at 427-28. Nothing in the order and decree appealed from precluded a proper proceeding to enforce or to defend the rights and interests at stake.  Id. at 428; see Rowe Co. v. Rowe, 154 Md. 599, 604, 141 A. 334 (1928) (order directing intervention was interlocutory and nonfinal; thus order was not immediately appealable).  Finality for the purposes of appeal requires settlement[***10] of the rights of the parties.  D. C. Transit Systems v. S.R.C., 259 Md. 675, 682, 270 A.2d 793 (1970); Concannon v. State Roads Comm., 230 Md. 118, 125, 186 A.2d 220 (1962); and Hopkins v. Easton Nat. Bank, 171 Md. 130, 135, 187 A. 874 (1936).

   Examination of the plethora of case law bearing on the question of finality for the purposes of appeal produces the following catalog: Clark v. Elza, 286 Md. 208, 211-13, 406 A.2d 922 (1979) (order denying motion to enforce oral settlement of tort action, albeit not final, nonetheless was appealable as within the collateral order exception); Schlossberg v. Schlossberg, 275 Md. 600, 606-15, 343 A.2d 234 (1975) (order which did not finally determine proper parties and issues to be tried, or send issues from an orphans' court to a law court for trial was not final and thus not immediately appealable); Ventresca v. Weaver Brothers, 266 Md. 398, 402-03, 292 A.2d 656 (1972) (order striking an enrolled judgment divested a substantial right and thus was immediately appealable); Griffin v. St. Mary's College, 258 Md. 276, 279, 265 A.2d 757 (1970) (order sustaining demurrer to petition for writ of mandamus with leave to amend[***11] was not a final judgment or immediately appealable); Lawrence v. Dept. of Health, 247 Md. 367, 371-72, 231 A.2d 46 (1967) (denial of plaintiff's motion for summary judgment was [**391] not a final order from which an appeal might be taken); Commissioner v. Steudl, 233 Md. 543, 545, 197 A.2d 432 (1964) (order striking declaration but granting leave to amend within a specified period of time did not conclude rights of the parties on the facts of that case or constitute a final judgment); Concannon, 230 Md. at 119-25 (order [*617]granting the State Roads Commission leave to amend its petition to condemn and the accompanying plat was an appealable final order because it determined substantial rights of the property owners); Eisel v. Howell, 220 Md. 584, 586-90, 155 A.2d 509 (1959) (denial of order denying challenge to jurisdiction and staying proceedings to permit arbitration did not settle or conclude rights of any party and thus was not appealable); and Bonner v. Celanese Corporation, 193 Md. 132, 135, 66 A.2d 400 (1949) (trial court's granting or refusing a motion for a new trial was not an appealable final order).

   When one turns to cases from foreign[***12] jurisdictions, the nonappealability of the revivor order in this case becomes more apparent.  In Mackaye v. Mallory, 79 F. 1 (2d Cir. 1897), the court addressed the appealability of an order reviving a suit upon the plaintiff's death.  It viewed the order as merely a continuation of an original suit, saying:
 
"A decision is final, in the sense in which an appeal from it is permitted, when it decides and disposes of the whole merits of the cause as between the parties to the appeal, reserving no further questions or directions for the future judgment of the court; so that to bring the cause again before the court for decision will not be necessary.  When a bill of revivor is dismissed, as this would practically determine the original cause by leaving it in a situation in which no further proceedings could be had in it, doubtless an appeal would lie in favor of the party seeking a revival; but, if the revival is allowed, the order or decree allowing it does not finally dispose of the cause, and can be reviewed, if it becomes necessary, by an appeal from the final decree therein." Id. at 2 (citing cases).
 
In dismissing the appeal, the court then concluded:[***13]

   "In the present case there was no decree upon the bills of review, and the orders are merely interlocutory orders in the cause, and are strictly analogous to an order in a suit at law entered on a [*618] suggestion upon the record admitting the legal representative of a deceased party to continue the action." Id.

   The Supreme Court of Alabama was faced with a situation strikingly similar to the circumstances now before us in Land v. Cooper, 244 Ala. 141, 12 So. 2d 410 (1943). Although the court determined there was no appealable final order, it decided the ultimate issue, as do we here, finding that the litigation had been abated by the death of the sole complainant and could not be revived.  In that case an administrator was substituted as a party plaintiff for the deceased original plaintiff.  The court held, "The order of the trial court substituting the appellees as parties complainant in lieu of L. M. Cooper is not such an order or decree as will support an appeal." 244 Ala. at 142. On this subject, see Annot., 167 A.L.R. 261 (1947). There is a distinct split of authority around the country on the issue of an order granting or denying revival.

   A revivor order[***14] is simply not the kind of order contemplated by this Court as deserving the right to immediate appeal.  In addition to the disfavored status of piecemeal litigation and appeals, this Court, as well as courts from other jurisdictions, has repeatedly emphasized that the determination or conclusion of a party's rights is a necessary predicate of appealability. The revivor order here has not finally determined either party's rights, is not within the collateral order exception otherwise permitting immediate appeal, does not affect an absolute constitutional right, does not divest substantial rights of the parties, and is amenable to correction upon appeal after a final judgment has been entered.  The trial court's order determined only that Mrs. Bartlett as personal representative may [**392] now prosecute her deceased husband's libel action.

   We say that the order is amenable to correction upon appeal because Rule 887 provides that on appeal from a final judgment "every interlocutory order which has previously been entered in the action shall be open to review by this Court, unless an appeal has theretofore been taken from [*619] such interlocutory order and been decided on[***15] the merits by this Court." Rule 1087 provides for such appeal in similar language relative to the Court of Special Appeals.  On the other hand, if a trial judge were to deny a motion to revive an action, that would be an appealable final judgment since, to borrow the language used by Chief Judge Brune for the Court in Concannon, 230 Md. at 125, that order would deprive the parties "of the means of proceeding further to enforce the right which they assert . . . ."

   Cant and Payne contend there is another reason that this order should be appealable. They say that the order in question was beyond the jurisdiction of the trial court and hence appealable. We do not see it that way.  Circuit courts are courts of general trial jurisdiction, described in some of our older cases as the successors to the King's Bench.  The fact that in this instance the trial judge erred in his conception of what was authorized does not make the order beyond the jurisdiction of the court.  Recently, in Brown v. Baer, 291 Md. 377, 435 A.2d 96 (1981), Judge Eldridge said for the Court:
 
"[W]e have held that merely because a trial court's order violates a statute or a rule does not render the[***16] order beyond the court's jurisdiction and a nullity; instead, it is only subject to reversal on a direct appeal." 291 Md. at 387 (citing cases).
 
Also, see generally the discussion in Stewart v. State, 287 Md. 524, 526-29, 413 A.2d 1337 (1980).

   II Propriety of the revival

   Pursuant to the provisions of Rule 885 and in accordance with the procedure we followed in Equitable Tr. Co. v. State Comm'n, 287 Md. 80, 411 A.2d 86 (1980), we shall express our views on this abatement issue for the guidance of trial courts generally and in the interest of judicial economy insofar as this particular case is concerned.

   Cant and Payne contend here that Maryland Rule 220 a 4 and Code (1974) § 6-401 (a), Courts and Judicial Proceedings [*620] Article, do not permit revival of this action.  Rule 220 a 4 states, "Where a party to an action for slander shall die, the action shall abate as to such party." Section 6-401 (a) says, "A cause of action at law, whether real, personal, or mixed, except slander, survives the death of either party." Cant and Payne suggest:

   "The key issue in this case is not whether libel is historically or conceptually different from slander. Rather, [***17] the question is whether, in a century-old jurisdictional statute, use of the term 'slander' was intended generically so as to include written slander as well as oral."

   The matter of the survival of actions was explained for the Court at some length by Chief Judge McSherry in Stewart v. United Elec. L. & P. Co., 104 Md. 332, 65 A. 49 (1906). In that instance an administrator brought suit to recover damages for the wrongful death of his decedent. n1 Chief Judge McSherry there said for the Court:

   "At the common law the right of action arising from an alleged wrongful act and negligence of the character charged in the narr. before us would have abated upon the death of the person thus injured.  It was a principle of the common law, that if an injury were done either to the person or property of another, for which damages only could be recovered in satisfaction, the action died with the person to whom or by whom, the wrong was [**393] done.  So fixed was this rule that it crystallized into a maxim.  It was considerably altered, however, by the Statute of 4 Edw., 3 C. 7, de bonis asportatis in vita testatoris, which though in force in Maryland prior[***18] to the adoption of the Act of 1798, ch. 101 (Kennerly's ex v. Wilson, 1 Md. 107), has no application [*621] to this case.  Where the cause of action was founded on any malfeasance or misfeasance was a tort, or arose ex delicto -- where the declaration imputes a tort done either to the person or property of another, and the plea must be not guilty, the rule was actio personalis moritur cum persona.  Note 1, Wheatley v. Lane, 1 Wms. Saund. 216. But statutes have been adopted in Maryland as well as in many, if not most, of the States of the Union, and fashioned after similar enactments in England, which have materially changed the common law rule; and the question involved on this record comes down to the inquiry as to whether the legislation of this State has abrogated that rule as it would have applied to this case; since if the rule has not been abrogated or modified it will defeat the pending action.  Now, there are two distinct lines of legislation on this subject, both of which are in force though adopted at widely different periods of time.  The one, beginning with the Act of 1785, ch. 80, has relation to the survival of certain[***19] personal actions instituted in the lifetime of the plaintiff but which would have abated at the common law upon his death; the other, the Act of 1852, ch. 299, almost a literal transcript of Lord Campbell's Act (9 and 10 Vic., ch. 93), gives a right of action under certain conditions to designated relatives of a deceased person, but not to his personal representatives, when death has been caused by a wrongful act or by negligence." 104 Md. at 333-34 (emphasis in original).
 
Judge Robinson put it a bit more succinctly in Ott v. Kaufman, 68 Md. 56, 11 A. 580 (1887), when he said for the Court:
 
"At common law personal actions of every kind abated on the death of the sole plaintiff or sole defendant, and if the action was founded on contract a new action would lie against the executor or administrator. But if the action was founded on a [*622] tort, for a wrong committed by the defendant, it did not survive, the maxim being 'actio personalis moritur cum persona.' Hambly v. Troth , Cowp. 374; Wheatley v. Lane, 1 Saund. 216a; Wentworth v. Cock, 2 Per. & Dav. 251.

   "In the language of Lord Mansfield the wrong and the wrong doer were buried together." [***20] 68 Md. at 57-58.

n1 It will be recalled that under Maryland's version of Lord Campbell's Act, currently codified in Code (1974) §§ 3-901 to -904, Courts and Judicial Proceedings Article, wrongful death actions are not brought by the personal representative of the deceased. We thus differ from some jurisdictions.

   The reaction of the present generation of attorneys and judges might well be that slander refers to words which are spoken while libel refers to words which are written and, thus, that the contention of Cant and Payne is without merit. However, Cant and Payne claim that slander "was commonly used as a term encompassing all forms of defamation." They point to works such as 36 Corpus Juris Libel and Slander [§ 4]2, at 1145 (1924), and 1 J. Poe, Pleading § 179 (4th ed. 1906), as using "slander" to refer to both oral and written defamation. As a matter of fact, they could very well have referred to C.J.S. and to a later edition of Poe.  For instance, it is said in 53 C.J.S.  Libel and [***21] Slander § 1 (b) (1948):
 
   "The word 'slander' is the general and original word for all kinds of defamation; and at an early day in the history of the common law the term applied both to oral and written defamations of character.  In this sense it has been defined to be the defaming of a man in his reputation by speaking or writing words from whence any injury in character or property arises, or may arise to him of whom the words are used.  However, in modern usage it has been limited to defamation by words spoken, and in this sense may be defined as the speaking of base and defamatory words which tend to the prejudice of the reputation, office, trade, business, or means of getting a living of another." Id. at 33.
 
1 J. Poe, Pleading and Practice § 179 (5th ed. H. Tiffany 1925), states:

   [*623] "The gravamen of both oral and written slander is the malicious design to [**394] defame and injure by the false charge; and hence, in all actions for redress of either of these wrongs, the effort of the plaintiff in the first instance is to show the existence of this design on the part of the defendant." Id. at 136 (emphasis in original).
 
In[***22] § 178 Poe refers to "reasons for considering slander in writing or in print a graver and more serious wrong and injury than slander by word of mouth . . . ."

   Cant and Payne point out that in Miles v. McGrath, 4 F. Supp. 603, 603 (D. Md. 1933), Judge Coleman said:

   "The second ground alleged in the demurrer is that the suit is barred by the one-year limitation statute of Maryland expressly applicable to actions 'for words' (Maryland Code, article 57, § 1), which, in the absence of a decision of the Court of Appeals of Maryland to the contrary, we must assume is applicable alike to slanderous statements, whether oral or written."
 
Code (1924) Art. 57, § 1, to which Judge Coleman referred, said that "all actions on the case for words" should be brought "within one year from the time the cause of action accrued . . . ." It might well be that the decision in Miles was responsible for the enactment of Ch. 54 of the Acts of 1933 a short time later so that the reference in the statute became to "all actions on the case for libel and slander . . . ." The language of the 1933 enactment is found today in Code (1974) § 5-105, Courts and Judicial Proceedings Article.  The[***23] statement relative to an action on the case for words is the same as that appearing in the original Maryland statute of limitations on the subject, Ch. 23, § 2 of the Acts of 1715.

   Historically, reference to slander in situations similar to that before the Court has been made in two contexts, the question of abatement and the right of a personal representative to bring litigation.  The present Rule 220 a 4 has as its source Code (1951) Art. 75, § 29.  That section, after [*624] referring to certain actions which were not to abate by death, stated, "This not to apply to actions for slander." Rule 220 was adopted as a result of the Twelfth Report of our Standing Committee on Rules.  That report indicated:

   "While the codification is intended primarily to codify the existing procedural law of the State, some modifications and additions seemed necessary or desirable.  In the June edition these changes were italicized.  A comparison of the draft herewith submitted with the June edition will acquaint the Court with the changes thus noted."
 
When one examines that "June edition," one notes that there was no italicization appearing relative to Rule 220 a 4.  Hence, it apparently[***24] was the intent of the Rules Committee, and thus of the Court, merely to incorporate the substance of the preceding statute.

   Code (1974) § 7-401 (x) (1), Estates and Trusts Article, states, "A personal representative may not institute an action against a defendant for slander against the decedent during the lifetime of the decedent." The Revisor's Note to that section states, "The subsections are rearranged for order and consistency. The only other changes are in language, style, and consistency." Code (1957, 1969 Repl. Vol.) Art. 93, § 7-401 (n), was enacted in the words of the Second Report of the Governor's Commission to Review and Revise the Testamentary Law of Maryland (1968).  Section 7-401 (n) provided, "[N]o personal representative may institute an action for slander against the decedent . . . ." The comment of the Commission was, "Subparagraph (n) is intended to cover the substantive provisions now contained in § 270 . . . ." The Commission stated, "The limitations on slander suits . . . contained in subsection (n) are derived from [Code (1957) Art. 93,] § 112 . . . ." That section provided that executors and administrators should "have full power to commence and[***25] prosecute any personal action whatever, at law or in equity, which the testator or intestate might have commenced and prosecuted, except actions of slander . . . ." It further provided that they should "be liable to be sued in any [*625] court of law or equity, in any action (except [**395] slander) which might have been maintained against the deceased . . . ." The origin of the section was Ch. 101 of the Acts of 1798.  This chapter provided that an executor or administrator might commence or prosecute any personal action "which the testator or intestate might have commenced and prosecuted, except actions of slander, and for injuries or torts done to the person . . . ."

   The Maryland statute relative to actions not abating, which is found in Code (1951) Art. 75, § 29, and is the basis for our present Rule 220, had its origin with Ch. 80 of the Acts of 1785.  We have been unable to find any mention of slander, or libel for that matter, in the abatement statute until the enactment of Code (1860) Art. 2, § 1, which is very similar in its terms to that which became Code (1951) Art. 75, § 29, and which was repealed upon the adoption of Rule 220. n2 The last clause of Art. 2, [***26] § 1 states, "this not to apply to actions for slander or for injuries to the person." The 1860 Code, like that of 1888 and Code (1974), Courts and Judicial Proceedings Article, is the law, not evidence of the law as, e.g., the Codes of 1912, 1924, 1939, 1951, and 1957.  See Wash. Sub. San. Comm'n v. Pride Homes, 291 Md. 537, 543 n.4, 435 A.2d 796 (1981). We can only surmise that since executors and administrators by the enactment of Ch. 101 of the Acts of 1798 had no power to commence and prosecute an action for slander, in the process of code revision the General Assembly determined to make the abatement statute consistent.

n2 Code (1974) § 6-401 (a), Courts and Judicial Proceedings Article, now provides, "A cause of action at law . . . except slander, survives the death of either party." This had its origin with the enactment of Ch. 558 of the Acts of 1963, § 12 adding a new § 15 A to Code (1957) Art. 75.

   It must be remembered that, as Judge Aldisert put it for the Third Circuit in Quinones v. [***27]  United States, 492 F.2d 1269, 1274 (3d Cir. 1974), "The word 'slander' is the general and original word for all kinds of defamation," notwithstanding the fact that "in modern usage it has been limited to defamation by words spoken rather than written . . . ." This begins to fall in place when one notes the [*626] beginnings for defamation actions.  For example, Folkard's Starkie on Slander and Libel (4th Eng. ed. H. Folkard 1877), states:

   "At a very early period in the history of the English law, Slander was recognised as an individual wrong, and an offence against the public peace. Libel, however, was scarcely known; nor, indeed, is it to be supposed that it would have been, among an unlettered and illiterate people, few of whom could write, and not many could read.  The offence of libel must therefore have been rare, until education and learning had made considerable advances, and with them art and science.  But in rude and despotic times libel had only very narrow limits, and not the same precision it acquired in the days of liberty and science." Id. at 1.
 
That author goes on to state:

   "The term Slander was formerly used to embrace written as[***28] well as oral defamation; thus, in Bacon's Abridgment, slander is (defined to be) the publishing of words in writing or by speaking; by means of which the person to whom they relate becomes liable to suffer some corporal punishment, or to sustain some damage.

   * * *

   "Again, In Buller's Nisi Prius, slander is defined to be 'the defaming a man in his reputation, by speaking or writing words which affect his life, office, or trade; or which tend to his loss of preferment in marriage or service, or to his disinheritance, or which occasion any other particular damage.'" Id. at 3 (emphasis in original).

   More recently, 1 F. Harper & F. James, The Law of Torts § 5.9 (1956), has stated:
 
"The early law of defamation, antedating the [*627] development and use of modern printing in England and western Europe, recognized no distinction between slander and libel. With the use of printing and its possibilities for disseminating scurrilous matter, the Star Chamber extended [**396] its criminal jurisdiction to printed defamation as tending to a breach of the peace, and at once the distinction was set up between libel and slander. By 1812 it was thoroughly[***29] established that an action would lie for a libel when one would not lie for slander, although the same ideas were conveyed in the same words.  It thus developed that all libels became actionable without proof of special damage, while only certain types of slander were so actionable.

    "'If the matter were for the first time to be decided at this day,' said Mansfield, C.J., in 1812, 'I should have no hesitation in saying, that no action could be maintained for written scandal which could not be maintained for the words if they had been spoken.'" Id. at 372.
 
In Thorley v. Lord Kerry, 4 Taunt. 355, 364, 128 Eng. Rep. 367 (1812), from which Messrs. Harper and James were quoting, Lord Mansfield said, "But the distinction has been made between written and spoken slander as far back as Charles the Second's time, and the difference has been recognised by the courts for at least a century back."

   M. Newell, The Law of Slander and Libel in Civil and Criminal Cases § 30 (3d ed. 1914), in discussing libel, says:
 
"In Delaware, after an elaborate discussion, it was decided that written slander to be actionable must impute something which tends to disgrace a man, [***30]lower him in or exclude him from society or bring him into contempt or ridicule; and that the court must be able to say from the publication itself, or such explanations as it may admit of, that it does contain such an imputation and has legally such a tendency; but mere general abuse and scurrility, [*628]however ill-natured and vexatious, is no more actionable when written than spoken, if it does not convey a degrading charge or imputation." Id. at 32-33 (emphasis added).
 
In the Delaware case to which the author was referring, Rice v. Simmons, 2 Del. 417 (1838), Judge Harrington said for the court:

   "The question reserved in this case presents some interesting points of consideration in the law of libel, the more interesting because of the novelty of this action in our courts.  Actions on the case for verbal slander have been of more frequent occurrence; in the trial of which, the principles relating to that form of slander have been investigated, and to some extent settled.  But the law governing civil actions for written slander has few precedents in the judgments of our courts; and on many points, the principles which are to govern our decisions, [***31] do not rest upon any authoritative adjudication in this country.

   "Going back, then, to the common law fountain, if we are to yield to the weight of learned opinions, or recognize the force of adjudged cases, we must assent to the distinction, (regretted though it has been by high authority, and argued against, as having no foundation in reason or expediency,) between spoken and written slander. The same words which may be spoken with impunity, without subjecting to legal responsibility, may be actionable if written and published. So frequent and uniform have been the decisions founded on this distinction, that Sir James Mansfield yields to it, though reluctantly, in Thorley vs. Lord Kerry, (4 Taunt. 365,) as established by some of the greatest names known to the law, including Lord Hardwicke, Hale, chief justice, Holt, and others.  The reasons by which this distinction has been vindicated are, that written slander is much more extensively and [*629] permanently injurious to character than verbal, being more widely circulated; that it is, therefore, more aggravated and dangerous, as tending to breaches of the peace; and that the deliberation necessary[***32] to prepare and circulate a written slander evinces greater malice in the slanderer, and is worthy of stricter punishment." Id. at 422-23 (emphasis in original).
  
Newell also refers to definitions of slander by a number of different authorities.  He quotes in one instance from Bacon's Abridgment as quoted by Folkard.  Id. § 32, at 39.

   [**397] 1 J. Chitty, A Treatise on Pleading 86 (11th Am. ed. 1851) (from 6th & 7th London eds. n.d.), comments, "[A] joint action cannot be supported against two for verbal slander . . . ." 1 J. Chitty, The Practice of the Law 43 (1st Am. ed. 1834) (from 1st Eng. ed. n.d.), states, "Injuries to reputation are written or verbal slander . . . ." (Emphasis in original.)

   The headnote in Davis v. Griffith, 4 G. & J. 342 (1832), refers to the suit as "an action upon the case for publishing a libel," but the first words written are:
 
"This was an action upon the case for slander. The declaration, with the necessary innuendoes, charged the defendant (the now appellant,) with publishing of, and concerning the plaintiff, (now appellee,) a certain false, scandalous, malicious, and defamatory libel, viz. [***33] 'A card.  . . .'" Id. at 342.
 
Then in Hagan v. Hendry, 18 Md. 177, 190 (1862), Chief Judge Bowie referred for the Court to "[t]he slander, complained of, being written or printed, (not oral or verbal,) . . . ."

   A number of cases outside of Maryland have referred to slander as embracing the written word.  See, e.g., Macurda v. Globe Newspaper Co., 165 F. 104, 107 (C.C.D. Me. 1908) ("It seems, then, that the well-known authorities in the common law of the last century used 'slander' as the more general term, and sometimes included 'libel' in the general [*630] designation of 'slander' or 'slanderous words.'"); Fenstermacher v. Indianapolis Times P. Co., 102 Ind. App. 189, 192, 1 N.E.2d 655 (1936) ("Our conclusion is that the legislature in the said act creating the Superior Court of Marion County used the word slander in its generic sense which includes the word libel."); Johnson's Administratrix v. Haldeman, Etc., 102 Ky. 163, 164, 43 S.W. 226 (1897) ("The word slander is the general and original word for all kinds of defamation. One can be defamed by words spoken, words written, or by signs or pictures, and when so defamed it is called slander; [***34] and the word slander in the statute, we think, was intended to embrace all these varieties of defamation. There is nothing in the statute which shows that the word was intended to be limited in its meaning to oral slander. Webster defines slander as defamation generally, whether oral or written; but goes on to say that in modern usage it has been limited to defamation by word spoken. Bacon's Abridgement says: 'Slander is the publishing of words in writing or by speaking, by reason of which the person to whom they relate becomes liable to suffer some corporal punishment.'"); Menter v. Stewart, 3 Miss. 698, 699 (1838) ("A libel may be defined to be written slander. . . . We understand what is meant by a prosecution for a libel, but when the private remedy is spoken of, it is known by the name used in the statute, an action for slander."); and Belo & Co. v. Smith, 91 Tex. 221, 224, 42 S.W. 850 (1897) ("The question is, does the word 'slander' as used in the article include within its meaning actions for libel? The authorities leave but little doubt that at an early day in the history of the common law the term was applied both to oral and written defamations of character. [***35] Starkie on Slander and Libel, 3, and authorities there quoted.  But we think it equally clear that in modern usage it is applied to oral defamation only.").
 
   Finally, we refer to a work from our English brethren across the sea from whence came much of our law.  G. Bower, A Code of the Law of Actionable Defamation pt. XVI, art. 64, app. 1, § 4 (2d ed. 1923), states:
 
"It is remarkable that 'scandal' in early times, and [*631] afterwards 'slander,' even when they came to be applied to injury by defamation rather than to injury in general, were not used to indicate oral defamation exclusively, but always at first, and occasionally even now, as a general term.  Thus in Coke's Reports (see the passage cited above) 'scandal' is used in connection with 'libelli famosi': in Thorley v. Lord Kerry (1812), 4 Taunt. 355, Sir James Mansfield, C.J., at 364, speaks of 'written and parol scandal': and Comyns' Digest and Bacon's Abridgment, define 'libel' as 'written scandal' (a).

   "[**398] Similarly, as to the later terms 'slander' and 'slanderous.' In Anon. (temp. Eliz.), Owen 30, we find 'if a man speak any slanderous words of another,' followed by 'if a[***36] man write any slanderous things of another.' In the following cases the expression 'oral and written slander' is used in the judgments: Maitland v. Gouldney (1802), 2 East 425 (per Lord Ellenborough C.J. at p. 436, and Lawrence J. at p. 437, 'written slander'); McGregor v. Thwaites (1824), 3 B. & C. 24 (per Bayley, J., at p. 25); Tuam (Bp. of) v. Roleson (1828), 5 Bing. 17 (per Best C.J., at p. 21); M'Pherson v. Daniels (1829), 10 B. & C. 263 (at pp. 267, 272, 273, 275).  In Bell v. Byrne (1811), 13 East 554, Le Blanc J., at p. 562, made use of the phrase 'whether the slander be in writing or in words.' In Harrison v. King (1817), 1 B. & Ald. 161, the expression 'verbal' (meaning 'oral') 'slander,' appears, which imports that there may be written slander. In R. v. Harvey (1823), 2 B. & C. 257, 'slanderous matter' is applied to a libellous publication.  'Verbal slander' is mentioned in Toogood v. Spyring (1834), 1 C. M. & R. 181 (Cur. per Parke B. at p. 193), 'written slander' in Malachy v. Soper (1836), 3 Bing. N. C. 371 (Cur. per Tindal C.J. at p. 385), and 'verbal and written slander' in[***37] Hopwood v. Thorn (1849), 8 C. B. 293 (Cur. per Wilde C.J. at pp. 311, 316).  In Kennedy v. Hilliard (1859), 1 L. T. 578, Little v. Pomeroy (1873), Ir. R. [*632] 7 C. L. 50, and in most of the other Irish cases of this period, the term 'oral slander' (implying, of course, the existence of slander which is not oral) is frequent.  Coming still nearer to the present day, we find that a judge, the soundness of whose reasoning was rivalled only by his lucidity and accuracy of exposition, Bowen L.J., at p. 316 of Hermann Loog v. Bean (1884), 26 C. D. 306, speaks of 'written slander,' 'spoken slander,' 'a slander which is contained in a document, and a slander which is not,' and, at p. 530 of Ratcliffe v. Evans, [1892] 2 Q. B. 524, 'oral slander.' The only instance of the generic use of 'slander' by the legislature is to be found in sect. 19 of 6 & 7 W. 4 cap. 76, which refers to 'slanderous or libellous matter contained in any newspaper,' obviously treating the two adjectives as either synonymous, or related to one another as genus to species.  In Com. Dig. the expressions 'write slander,' and 'insert slander in an affidavit,' appear; whilst[***38] in Bacon's Abridgm. it is roundly stated that 'slander is the publishing of words in writing or by speaking,' etc.  The Scotch law, which (see App. XVIII) knows no distinction between libel and slander, describes an action for libel as 'an action for damages for slander': see, for instance, Ellis v. National Free Labour Assocn. (1905), 7 F. 629; Browne v. D. C. Thomson & Co., [1912] S. C. 259.

   "However, notwithstanding that both reason and authority would amply justify the use of the term 'slander' to designate the genus, it cannot be denied that general usage, convenience, and the legislature have now definitely dedicated the word to one species only, viz. oral defamation." Id. at 232-33 (emphasis in original).

   Given what we believe from that which we have quoted and cited to have been the understanding of the word "slander" at the time of the original enactments in 1798 and 1860, and the references by our predecessors of the last century to [*633] "slander" as embracing what we would understand today as an action in libel, we conclude that the action of Bartlett in this case abated at his death. 

   Judgment of the Court of Special Appeals dismissing [***39]  the appeal affirmed; costs to be equally divided between the parties. 

MARY ANNE MOORE v. AVOCET DEVELOPMENT CORPORATION 
No. 102, September Term, 1981
 
Court of Appeals of Maryland
 
292 Md. 593; 440 A.2d 386; 1982 Md. LEXIS 211

 February  5, 1982, Decided

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals; Circuit Court for  Anne Arundel  County, Goudy, J.

DISPOSITION: Judgment of the Court of Special Appeals vacated and case remanded to that Court for further remand to the Circuit Court for Anne Arundel County for purpose of entry of a judgment of non pros in favor of the defendant against the plaintiff for costs, pursuant to the request of appellee, the plaintiff in that proceeding.  Costs in this Court to be paid by appellee.

COUNSEL: H. Thomas Howell on the motion to dismiss, with whom were Sidney G. Leech and Semmes, Bowen & Semmes on the brief, for appellant.

   Submitted on motion by Russell D. Karpook, with whom were Power & Mosner on the brief, for appellee.

JUDGES: Smith, Eldridge, Cole, Davidson and Rodowsky, JJ., and J. Dudley Digges, Associate Judge of the Court of Appeals retired, specially assigned.

OPINIONBY: PER CURIAM

OPINION: [*593] [**387] We granted the writ of certiorari in this case in order that we might address important public issues relative to the law of [***2]defamation.  However, before the filing of a brief in this Court respondent Avocet Development Corporation, the [*594] original plaintiff, had a change of heart.  It announced a desire to dismiss its cause of action and to start the new year on a clean slate.  To that end, it moved to dismiss the appeal with prejudice.  Petitioner Mary Anne Moore has resisted.  She is disturbed by the unreported opinion of the Court of Special Appeals and fears that others "may rely upon the erroneous decision by the Court of Special Appeals as justification for harassing lawsuits." The fear is misplaced since under our rules it may not be cited as authority.

   We are of the view that if the party plaintiff wishes to abandon its claim it should be permitted to do so and the issues raised thus become moot.
 
   Judgment of the Court of Special Appeals vacated and case remanded to that Court for further remand to the Circuit Court for Anne Arundel County for purpose of entry of a judgment of non pros in favor of the defendant against the plaintiff for costs, pursuant to the request of appellee, the plaintiff in that proceeding.

   Costs in this Court to be paid by appellee. 

R. CHARLES AVARA et al. v. THE BALTIMORE NEWS AMERICANDIVISION, THE HEARST CORPORATION 
No. 85, September Term, 1981
 
Court of Appeals of Maryland
 
292 Md. 543; 440 A.2d 368; 1982 Md. LEXIS 204; 8 Media L.Rep. 1272

 January  26, 1982, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Hopper, J., pursuant to certiorari to the Court of Special Appeals.

DISPOSITION: Case remanded to the Circuit Court for Anne Arundel County with directions that it vacate the declaratory judgment and dismiss the action. Costs to be paid by the appellee.

CORE TERMS:  public body, budget, public policy, public funds, declaratory judgment, deliberation, appropriating, Sunshine Law, authorize, advisory, declaration of rights, enacting, override, appropriation, compelling reason, public business, recommendations, applicability, appointed, subtitle, general public, quasi-legislative, closure, declare, voted, coverage, ambit, Declaratory Judgments Act, declaratory relief, Senate Rules

COUNSEL: Stephen H. Sachs, Attorney General, with whom were Robert A. Zarnoch and Linda H. Lamone, Assistant Attorneys General, on the brief, for appellants.

   Theodore Sherbow, with whom were Stephen M. Hearne and Sherbow, Shea & Tatelbaum, P.A. on the brief, for appellee.

JUDGES: Murphy, C. J., and Smith, * Digges, Eldridge, Cole, Davidson and Rodowsky, JJ.  Murphy, C. J., delivered the opinion of the Court.

* Digges, J., participated in the hearing of the case, in the conference in regard to its decision and in the adoption of the opinion, but he had retired from the Court prior to the filing of the opinion.

OPINIONBY: MURPHY

OPINION: [*544] [**369] The[***4] primary issue in this case is whether a Conference Committee of the Maryland General Assembly appointed to resolve differences between the two Houses arising over enactment of the Fiscal Year 1982 Budget Bill (H.B. 620) violated the provisions of Maryland Code (1957, 1980 Repl. [*545] Vol.), Article 76A, §§ 7-15 (the Act), by excluding the public from its working sessions.

   (1)

   The Act requires that meetings of public bodies, with some exceptions, be open to the public.  In § 7, the General Assembly declared:

   "It is essential to the maintenance of a democratic society that except in special and appropriate circumstances public business be performed in an open and public manner and that the citizens be advised of and aware of the performance of public officials and the deliberations and decisions that go into the making of public policy."
 
Section 9 provides that the Act applies to a "public body when it is exercising legislative, quasi-legislative or advisory functions." Section 8 (g) defines a "'Public body'" as "an entity consisting of two or more persons that is created by the State Constitution, by State statute, local charter or ordinance, or rule, resolution[***5] or bylaw, or by executive order of the Governor or the chief executive authority of a political subdivision of the State." Section 8 (f) defines a "'Meeting'" to mean "the convening of a quorum of the constituent membership of a public body for the purpose of considering or transacting public business."

   Section 10 requires that meetings of every public body covered by the Act "shall be open to the public unless closed in accordance with § 11." Section 11 authorizes meetings to be closed for any of thirteen specified reasons, one of which (§ 11 (a) (13)) permits a meeting to be closed on an individually recorded affirmative vote of two-thirds of the members present, for an "exceptional reason so compelling as to override the general public policy in favor of open meetings." Section 11 (b) (2) requires:

   "A statement of the time, place, and purpose of any closed meeting, the record of the vote of each [*546] member by which any meeting was closed, and the authority under this section for closing any meeting shall be included in the minutes of the next public meeting or public session of the public body."
 
Section 12 (a) requires that public bodies give reasonable advance[***6] notice of open meetings.  Section 14 entitled "Enforcement of subtitle" authorizes the filing of civil actions by a person "adversely affected by an action in violation of §§ 10 or 12 . . . for the purpose of requiring compliance with the provisions of these sections, determining the applicability of these sections, or voiding the action." Section 14 (e) (1) authorizes the court "to issue an injunction, to determine the applicability of this subtitle to the discussions or decisions of public bodies, or to grant such other relief as may be appropriate." Section 14 (e) (2) authorizes the court to "declare void any final action taken at a meeting held in wilful violation of §§ 10 or 12 . . . [if it] finds that no other remedy would be adequate under the circumstances." Subsection 14 (g) declares: "This section does not apply to an action appropriating public funds, levying taxes, or providing for the issuance of bonds, notes or other evidences of public obligation." Section 14 (h) recites that the provisions of [**370] § 14 "do not affect or preclude the application of any other available remedies."

   (2)

   House and Senate Rules 60 and 61, which are identical in substance, authorize [***7] the appointment of conference committees where the two Houses "are unable to concur on the final form of a Bill." The rules provide that the report of the committee may not be amended and if the report recommends passage of the bill in any form, the bill shall be submitted to a vote of each House.

   On April 2, 1981, a House-Senate Conference Committee on the Budget Bill, consisting of three members of each House, was appointed to make recommendations involving a number of items in the Budget Bill concerning which the two [*547]Houses were not in agreement.  The Committee met on April 2, 3 and 6 in closed session.  On each occasion, the members unanimously voted to exclude the public and press from attending the meeting and observing the Committee's deliberations. On April 6, 1981, the report of the Conference Committee was submitted to the General Assembly and the Budget Bill was enacted on the same day.

   The Baltimore News American, a daily and Sunday newspaper, filed a bill of complaint in the Circuit Court for Anne Arundel County, seeking a declaratory judgment that the Budget Conference Committee, and all other Conference Committees of the General Assembly, were public[***8] bodies whose meetings were required to be open to the public.  The case was tried on a stipulation of facts between the parties.  It was thereby agreed that on April 2, 1981, after the Committee voted to exclude the press and the public from its meetings, Senator Laurence Levitan, one of the conferees, gave as "compelling reasons" justifying closure "the uniqueness and importance of the budget and the budget bill and the necessity to preserve free and open discussion concerning resolution of the conflicts between the two Houses." It was also stipulated that the constitutional deadline for enacting the Budget Bill was 12 midnight, April 6, 1981; that the Conference Committee concluded its business and submitted its report at 12 noon on that day; and that the House and Senate adopted the recommendations of the Committee and approved the Budget Bill, respectively, at 3:30 p.m. and 4:30 p.m. on April 6.  The parties further stipulated that in 1976 and 1977 the General Assembly failed to enact the Budget Bill by the constitutional deadline, necessitating a proclamation by the Governor extending the time of the regular session.  Additionally, it was stipulated that in every legislative session[***9] since 1976 a House-Senate Conference Committee had been appointed to resolve differences between the two Houses in the budget and that it was likely that a similar Conference Committee would be appointed in 1982.

   The court (Hopper, J.) stated that "The central and only substantive issue raised by the pleadings . . . [was whether] [*548] the Budget Conference Committee of the General Assembly [was] required by Article 76A of the Maryland Code to meet in open session at which the public may attend." After reviewing the provisions of the Act, and the public policy reasons underlying its passage as set forth in § 7, the court held that the Committee was a "public body" exercising an "advisory function" within the contemplation of the Act's provisions. n1 The court recognized that under § 11 (a) (13) a meeting could be closed for an "exceptional reason so compelling as to override the general public policy in favor of open meetings." It held, however, that that provision was required by § 14 (i) to be strictly construed, n2 [**371] and that the reason given by Senator Levitan for closing the meeting was not so compelling as to override the general public policy in favor[***10] of open meetings.  The court said:
 
"[T]he very reason for open meetings is so that the citizens (public) be advised of and aware of the performance of public officials and the deliberations and decisions that go into the making of public policy . . . .  [T]he very reason given for closing the meeting was itself to avoid precisely what the Public Policy set forth in Section 7 of Article 76A sought to accomplish.  The importance of the Budget and its effect on the public is self-evident, and this Court is persuaded that any fair and reasonable construction of Section 11 (a) (13) would preclude the Committee from closing the meeting to avoid or [*549]circumvent the very thing that it sought to accomplish by its public policy in Section 7.  How can the reasons furnished by the Committee be so compelling as to override the public policy when the public is entitled to be present to observe the performance of public officials, and the deliberations and decisions that go into the making of public policy. Section 11 (a) (13) cannot be so construed as to encompass an evasion or circumvention of Section 7. It must be for reasons that override Section 7."

n1 Section 8 (b) defines "'Advisory function'" to mean
 
"the study, evaluation, or the making of recommendations on matters of public concern pursuant to an official delegation of responsibility in the form of a constitutional or charter provision, law, statute, resolution, ordinance, order, rule, regulation, or other formal action by or on behalf of a public body which exercises legislative, quasi-legislative, executive, judicial or quasi-judicial functions, or by the Governor or the chief executive of a political subdivision of the State."
[***11] 

n2 Section 14 (i) provides:

   "In an action under this subtitle involving the application of § 11 (a) (13) of this subtitle, the court shall strictly construe the provisions of § 11 (a) (13)."

   The court found no merit in the argument that § 14 (g) deprived it of authority to enforce the Act because the Committee was engaged in "an action appropriating public funds." The court said that the Conference Committee performed only a "conciliatory advisory function" and its action was not, therefore, one appropriating public funds within the contemplation of § 14 (g). Even if it was such an action, the court said it nevertheless had jurisdiction under the Maryland Uniform Declaratory Judgments Act, Code (1980 Repl. Vol.), §§ 3-401 to 3-415 of the Courts and Judicial Proceedings Article to determine the applicability of the Act's provisions to the Conference Committee's actions. The court also held that the Speech and Debate clauses of Article 10 of the Maryland Declaration of Rights, n3 and Article III, § 18 of the Maryland Constitution, n4 did not operate as a bar to the plaintiff's action, [***12] as claimed by the Attorney General.  The court said that the plaintiff sought only a declaration of rights under Article 76A "and in no way whatever seeks to impeach any proceedings, or impose liability on any Defendant, either civil or criminal" in violation of the Maryland Constitution or Declaration of Rights. Finally, the Court held that the General Assembly, by enacting Article 76A, §§ 7-15, had abrogated its historical practice and custom of permitting the Budget Conference Committee to meet in [*550] closed session.  Contrary to the Attorney General's argument, the court said that nothing in Article III, § 21 of the Maryland Constitution n5 vested discretion in the Committee to close its meetings when it believed that its business should be kept secret.  The court entered a declaratory judgment as follows: "A Budget Conference Committee is a public body whose meetings are required by the provisions of Article 76A to be open to the public." n6

n3 Article 10 declares: "That freedom of speech and debate, or proceedings in the Legislature, ought not to be impeached in any Court of Judicature."

[***13] 

n4 Article III, § 18 states: "No Senator or Delegate shall be liable in any civil action, or criminal prosecution, whatever, for words spoken in debate."

n5 Article III, Sec. 21 provides: "The doors of each House, and of the Committee of the Whole, shall be open, except when the business is such as ought to be kept secret."

n6 The court declined to award counsel fees to the plaintiff.

   The Attorney General, on behalf of the Committee and its members, appealed to the Court of Special Appeals.  We granted certiorari prior to decision by the intermediate appellate court to consider the important public issues raised in the case.

   In seeking a reversal of the lower court's declaratory judgment, the Attorney General posits five arguments.  First, he [**372] maintains that a Conference Committee is not a "public body" within the meaning of § 8 (g) of the Act because, unlike Standing Committees of the General Assembly, it is not "created" by the Maryland Constitution, by statute or by rule, but is only "authorized" by rule of both Houses.  We think the argument is a specious one. Conference[***14] Committees are established and exist only in pursuance of House and Senate Rules and in the sense contemplated by § 8 (g) are plainly the creation of a rule.

   As we observed in City of New Carrollton v. Rogers, 287 Md. 56, 410 A.2d 1070 (1980), the heart of the Act is found in the public policy declaration of § 7, i.e., that "public business be performed in an open and public manner and that the citizens be advised of and aware of the performance of public officials [when exercising legislative, quasi-legislative or advisory functions] and the deliberations and decisions that go into the making of public policy." That commitment is secured by the provisions of §§ 10 and 12 of the Act which afford the public a right to observe the [*551] deliberative process and the making of decisions by the public body at open meetings.  Id. at 71-72. To conclude that a Conference Committee is not within the ambit of the § 8 (g) definition of a "public body" would be to ascribe an intention to the legislature to exclude from the Act's coverage all those entities which, although lawfully transacting public business and exercising legislative or advisory functions, were nevertheless[***15] merely authorized but not required by law to exist. Obviously, the adoption of such a strained construction would seriously undercut the Act's effectiveness and would be wholly at odds with the broad public policy underlying its passage.

   The Attorney General next argues that if the Conference Committee was a public body subject to the Act's provisions, its meetings were nevertheless properly closed to the public for compelling reasons sanctioned by § 11 (a) (13), and the lower court erred in ruling to the contrary.  The record discloses that the Committee was advised by an opinion of the Attorney General prior to its first meeting on April 2, 1981 that (1) it was not a public body under § 8 (g) and need not open its meetings to the public and (2) if it was a public body within the Act's coverage, it could close its meetings because the Committee's only purpose was "to achieve compromise and consensus, [and it] could invoke the need for free and open discussion and deliberation as a compelling reason to close a meeting pursuant to § 11 (a) (13)." The record does not reveal which of these reasons, if either, the Committee invoked in closing its meetings, nor does it indicate that[***16] the reason given by Senator Levitan for closing the meeting represented the official position of the Committee or was merely the personal view of one of the Committee's six conferees.  The state of the record does not therefore permit a determination whether the Committee closed its meetings with reliance upon § 11 (a) (13).  While we think the lower court reached the correct result in concluding that the provisions of § 11 (a) (13) did not justify closure of the Committee's [*552] meetings, it was not because the evidence was insufficient to demonstrate compliance with those provisions, but rather because no evidence at all was adduced of reliance upon that section.

   It is next contended that if the Conference Committee is a public body under the Act, and its meetings were not properly closed under § 11 (a) (13), the lower court nevertheless lacked jurisdiction to issue a declaratory judgment because civil enforcement of the Act's provisions is expressly precluded by § 14 (g) when the meeting of the public body under scrutiny involves "an action appropriating public funds." As previously indicated, § 14 provides for civil enforcement of the Act's provisions and authorizes[***17] injunctive, declaratory or other "appropriate" relief to require compliance with the Act, to determine its applicability, or to void actions of a public body taken in violation of the Act's open meeting requirements.  None of these remedies, however, is available, according to the express language of § 14 (g), "to an action appropriating public funds." Of course, the action taken by the Budget Conference Committee at its [**373] meetings, culminating in the filing of its nonamendable report with the General Assembly, together with the recommended form of the Budget Bill, was not itself an appropriation of public funds, any more than actions taken by Standing Committees of the Senate and House with reference to budgetary matters constitute an appropriation of public funds. The action of the Conference Committee was, however, a vital part of the process of enacting the Budget Bill; its report contained recommendations as to the final form of the Budget Bill and was voted upon by the General Assembly in the form presented by the Conference Committee.  The action of the Conference Committee was thus an essential step in the process of enacting the Budget Bill and appropriating the[***18] public funds necessary to operate the state government.  Indeed, the provisions of the Act apply "not only to final decisions made by the [*553] public body exercising legislative functions at a public meeting, but as well to all deliberations which precede the actual legislative act or decision, unless authorized by § 11 to be closed to the public." City of New Carrollton, supra, 287 Md. at 72. We think, therefore, that the phrase in § 14 (g) -- "an action appropriating public funds" -- encompasses the deliberations of the Budget Conference Committee in the process of enacting the Budget Bill into law.  In insulating actions taken by a public body in matters associated with the appropriation of public funds from the judicial remedies provided in § 14, the legislature undoubtedly intended to maintain the integrity of any appropriation measure, even if the disputed action was taken in violation of the open meetings provision of the Act.  This is plainly a public policy determination wholly within the domain of the legislature to make.

   The Baltimore News American suggests that § 14 (g) does not inhibit the filing of an action under the Declaratory Judgments Act to obtain[***19] a declaration of rights since § 14 (h) provides that the application of "other available remedies" is not precluded by § 14.  We think it clear, however, that the authorization to obtain declaratory relief contained in § 14 (a) of the Act is expressly made inapplicable to cases, as here, coming within the ambit of § 14 (g).  Consequently, the declaratory judgment remedy is not "available" under § 14 (h) in this case, whether brought under the provisions of § 14 (a) or under the Declaratory Judgments Act. Accordingly, although we agree that the Act requires that Conference Committee meetings be open to the public unless closed in accordance with the provisions of § 11, the lower court did not, in view of the provisions of § 14 [*554] (g), have jurisdiction to enter a declaratory judgment in this case. n7

n7 Courts consistently adhere to a policy of not deciding constitutional issues unnecessarily.  See Simms v. State, 288 Md. 712, 725, 421 A.2d 957 (1980). Consequently, in view of our disposition of this case, we do not consider the Attorney General's argument that the Speech and Debate Clauses of the Maryland Constitution and Declaration of Rights render the provisions of the Act inapplicable to members of the Legislature.  Nor do we reach the question whether, notwithstanding the Act's provisions, Article III, §§ 19 and 21 of the Maryland Constitution and Article 8 of the Declaration of Rights vest unreviewable discretion in members of the General Assembly to close committee meetings.

[***20]

   Case remanded to the Circuit Court for Anne Arundel County with directions that it vacate the declaratory judgment and dismiss the action.

   Costs to be paid by the appellee. 

RICHARD H. CARTER v. GLEN BURNIE VOLUNTEER FIRE COMPANY,INC. et al. 
No. 59, September Term, 1981
 
Court of Appeals of Maryland
 
292 Md. 165; 438 A.2d 278; 1981 Md. LEXIS 318

 December  23, 1981, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Williams, J., pursuant to certiorari to the Court of Special Appeals.

DISPOSITION: Judgment of the Circuit Court for Anne Arundel County reversed and case remanded for further proceedings.  Costs to be paid by appellees.

CORE TERMS:  dissolution, nonstock, board of directors, stockholder, entitled to vote, stock, subtitle, outstanding, subscribed, special meeting, nonprofit, charter, voted, affirmative vote, notice, dissolve, annual, revision, articles of incorporation, capital stock, recommending, forfeiture, effected, bylaws

COUNSEL: Alan Hilliard Legum, with whom were Legum, Cochran, Chartrand & Wyatt, P.A. on the brief, for appellant.

   Roger N. Powell for appellees.

JUDGES: [***2]

   Murphy, C. J., and Smith, Digges, Eldridge, Cole, Davidson and Rodowsky, JJ. Rodowsky, J., delivered the opinion of the Court.

OPINIONBY: RODOWSKY

OPINION: [*165] [**279] The single issue presented in this appeal is whether the voluntary dissolution of a Maryland nonstock corporation [*166] which has voting members may be effected based upon the action of the board of directors, or whether the dissolution additionally requires the approval of the corporation's membership.  Here we shall hold that approval by the affirmative vote of two thirds of all of the members entitled to vote on the matter is required.

   The appellee, Glen Burnie Volunteer Fire Company, Inc. (the Company), is a Maryland nonstock corporation. n1 The agreed statement of facts in this case advises that in 1980 the board of directors of the Company decided to file articles of dissolution of the Company with the State Department of Assessments and Taxation. n2 The dissolution was approved by the unanimous vote of the board of directors of the Company, but the proposed dissolution was never submitted to the members of the Company at either an annual or special meeting. Both the charter and the bylaws of the[***3] Company are silent as to the procedure for voluntary dissolution. Appellant Richard H. Carter is a member of the Company who is not a member of the board of directors. The record does not reveal how many other members of the Company there are who would be entitled to vote at a regular or special meeting of the Company and who are not members of the board of directors. On December 19, 1980 the appellant filed a bill of complaint which sought, inter alia, that the Company be enjoined from proceeding with the dissolution and any sale of its real or personal property.  An interlocutory injunction was denied.  The denial was based on the trial court's conclusion that the proposed dissolution did not require approval by the Company's members.  From that denial this appeal was taken.  We granted certiorari prior to consideration of the case by the Court of Special Appeals.

n1 The complaint in this case also joined the members of the board of directors of the Company as defendants, through a representative.  No issue is presented concerning that procedure.  For convenience of reference we shall treat the Company as the sole appellee.

[***4] 

n2 The proposed articles of dissolution are not part of the record.

   Before addressing the legal issue between the parties, which turns on a question of statutory interpretation, it is [*167] helpful to take an overall view of the structure of those parts of the Corporations and Associations Article of Md. Code (1975 and 1981 Cum. Supp.) which are involved here.  Title 1 deals with "General Provisions." Title 2 addresses "Corporations in General -- Formation, Organization, and Operation." "Corporations in General -- Extraordinary Actions" are taken up in Title 3, within which subtitle 4 deals with "Dissolution." Title 5, "Special Types of Corporations," includes subtitle 2, "Nonstock Corporations." The format of the Corporations and Associations Article does not repeat, in the nonstock corporation subtitle, the text of all of the provisions relating to corporations in general which apply to nonstock corporations.  Rather § 5-201 (1981 Cum. Supp.) states:

   The provisions of the Maryland General Corporation Law n[3] apply to nonstock corporations unless:

   (1) The context of the provisions[***5] clearly requires otherwise; or

   (2) Specific provisions of this subtitle or other subtitles governing specific classes of corporations provide otherwise.

 n3 "[T]he Maryland General Corporation Law" refers to Titles 1 through 3 of the Corporations and Associations Article.  Md. Code (1975, 1981 Cum. Supp.), § 1-103 of the Corporations and Associations Article.

   Section 1-101, dealing with definitions, in relevant part provides:

   (a) In general.  -- In this article [i.e., the entire Corporations and Associations Article], [**280] unless the context clearly requires otherwise, the following words have the meanings indicated.

   . . .

   (t) Stockholder.  -- "Stockholder" means a person who holds shares of stock in a corporation and includes a member of a corporation organized without capital stock.  [Emphasis in lines 2-4 added.]

   [*168] Title 5, subtitle 2, "Nonstock Corporations," contains § 5-208 (1981 Cum. Supp.), which directly addresses dissolution. Subsection (a) thereof [***6]provides:

   Application of Title 3 to nonstock corporations.  -- Except as otherwise provided in this section, the dissolution or forfeiture of the charter of a nonstock corporation shall be effected as provided in Title 3 of this article. In dissolution or on forfeiture of the charter of the corporation, the directors have the powers and duties of directors of a stock corporation under this article.  [Emphasis (in lines 2-5) added.]

   Subsections (b) and (c) contain special provisions dealing with the winding up phase of the dissolution of a nonstock corporation, and principally with the distribution of its assets.  However, the procedure for a dissolution is governed by Title 3.

   The issue in this case revolves around whether the Company's dissolution is governed by § 3-402 or § 3-403.  They read as follows:
 
§ 3-402.  Approval of voluntary dissolution -- No stock outstanding or subscribed for.

   (a) In general.  -- If there is no stock entitled to be voted on the dissolution either outstanding or subscribed for, the dissolution shall be approved as provided in this section.

   (b) Approval before organization meeting.  -- If the action is taken [***7]before the organization meeting of the board of directors, the dissolution shall be approved by resolution of a majority of the incorporators.

   (c) Approval after organization meeting.  -- If the action is taken after the organization meeting of the board of directors, the dissolution shall be approved by resolution of a majority of the entire board of directors.
 
[*169] § 3-403.  Same -- Stock outstanding or subscribed for.

   (a) In general.  -- If there is any stock entitled to be voted on the dissolution either outstanding or subscribed for, the dissolution shall be approved as provided in this section.

   (b) Directors' action.  -- A majority of the entire board of directors of a corporation proposing to dissolve shall:

   (1) Adopt a resolution which declares that dissolution of the corporation is advisable; and

   (2) Direct that the proposed dissolution be submitted for consideration at either an annual or a special meeting of the stockholders.

   (c) Notice to stockholders.  -- Notice which states that a purpose of the meeting will be to act on the proposed dissolution shall be given by the corporation in the manner required by Title 2 of this article to each[***8] stockholder entitled to vote on the proposed dissolution.

   (d) Stockholder approval.  -- The proposed dissolution shall be approved by the stockholders of the corporation by the affirmative vote of two thirds of all the votes entitled to be cast on the matter.

   The Company contends that "there is no stock entitled to be voted on the dissolution either outstanding or subscribed for," so that § 3-402 (c) applies and the dissolution requires only the approval of the directors.  The appellant contends that if there are members of a nonstock corporation who are entitled to vote at a meeting, then notice of the proposed dissolution must be given to them and approval of the members is required under § 3-403 (d) because the reference there to "stockholders" must, under § 1-101 (t), be read as "members."

   An analogous situation was presented in Downing Development Corp. v. Brazelton, 253 Md. 390, 252 A.2d 849 (1969). There Aviation Yacht and Country Club, Inc., a [*170] Maryland nonstock corporation, had purportedly [**281]entered into a contract to sell substantially all of its assets consisting of 700 acres of valuable real estate.  That case arose prior to the revision[***9] of the corporation law into the present Corporations and Associations Article.  Articles of sale or transfer had not been "approved by the stockholders" under Md. Code (1957, 1966 Repl. Vol.), Art. 23, § 66 (d).  In holding that the contract of sale was invalid and of no legal effect, we said (id. at 395, 252 A.2d at 852):

   While the above mentioned procedures are set forth in Part I "STOCK CORPORATIONS" of Article 23, it must be noted that Part II "NONSTOCK CORPORATIONS" of Article 23, provides in subsection 132 (a) that, "Except as otherwise provided * * *, every corporation of this state without capital stock shall comply with all provisions of Part I, Stock Corporations, * * *.", and subsection 132 (b) provides, "Wherever the term stockholders, * * * [is] used in this article, they shall be deemed to include members, * * *."

    Section 66 (a) of former Art. 23 dealt with "consolidation or merger, and every . . . sale, lease, exchange or other transfer of all or substantially all the property and assets of a corporation of this State . . . ." Former § 66 (d), requiring stockholder approval, referred to corporate articles effecting all of these types of transactions. [***10] Downing stands for the proposition that the members of a nonstock corporation must approve those transactions.  If the contention of the Company in this case is correct, the approval of the members of a nonstock corporation would never be required for voluntary dissolution because such a corporation, by definition, would never have "stock entitled to be voted on the dissolution," under the Company's reading of § 3-402 (a).  This would mean that the extraordinary corporate action of dissolution, with respect to a nonstock corporation, would be treated differently than other extraordinary corporate actions by nonstock corporations.  We can ascribe no such intent to the General Assembly.

   [*171] If the dictates of §§ 1-101 (t) and 5-201 are followed, so that the reference to stockholders in § 3-403 (b) (2), (c) and (d) is read as a reference to members entitled to vote, the resulting interpretation is not barred by the context of §§ 3-402 and 3-403.  In the context of the nonstock corporation, § 3-402 (c) applies where there are no members entitled to vote. Such a situation could arise where the directors named in the articles of incorporation n4 have held an organizational[***11] meeting and then have determined to dissolve before there are any other members. n5 On the other hand, if there are members other than the directors themselves, who are entitled to vote at a meeting of the corporation, then § 3-403 applies.

n4 Under § 2-104 (a) (8), articles of incorporation "shall include" the names of those who will initially serve as directors.

n5 Section 5-204 would operate in such an event.  It provides:

   For purposes of any law or rule relating to members of a nonstock corporation, the directors of a nonstock corporation also constitute the members of the corporation and, when meeting as directors, may exercise the rights and powers of members if:

   (1) The charter or bylaws of the corporation do not provide for members; or

   (2) The nonstock corporation in fact has no members.

   Our interpretation is consistent with modern corporation law generally. n6 16A R. Eickhoff, Fletcher Cyclopedia of the Law of Private Corporations § 8019, at 125 (rev. perm. ed. 1979), states: [***12] 
 
[T]he business-corporation statutes, like the Model Business Corporation Act, generally contemplate the adoption by the board of directors of a resolution recommending dissolution of the corporation and its submission to a vote of the stockholders . . . .  Likewise, the Model Nonprofit Corporation Act and other statutes governing nonprofit corporations similarly [**282] so provide, and if there are no members or no members entitled to vote thereon, the dissolution [*172] of a nonprofit corporation may be authorized at a meeting of the board of directors upon the adoption of a resolution to dissolve by the vote of a majority of the directors in office.  [Footnotes omitted.]

n6 Also consistent is the statement in J. France, Principles of Corporation Law § 42, at 72 (2d ed. 1914) that the "holders of a majority of the shares . . . of a stock corporation . . . and a majority of the members of a non-stock corporation, -- may authorize a bill to be filed for a voluntary dissolution."

[***13]

   The Model Nonprofit Corporation Act referred to in Fletcher was proposed by the Committee on Corporate Laws of the Section of Corporation, Banking and Business Law of the American Bar Association.  Section 45 of the 1964 revision of that model act, dealing with voluntary dissolution, recommends the following in subsection (a):
 
If there are members entitled to vote thereon, the board of directors shall adopt a resolution recommending that the corporation be dissolved, and directing that the question of such dissolution be submitted to a vote at a meeting of members entitled to vote thereon, which may be either an annual or a special meeting.

   H. Oleck, Non-Profit Corporations, Organizations, and Associations § 328, at 854 (3d ed. 1974) describes the following procedure for the voluntary dissolution of a nonstock corporation without court supervision:

   In most cases members agree upon a voluntary dissolution by adopting a resolution at a duly called meeting.  In a few states the proper number may sign the certificate of dissolution without a meeting.  Often the original resolution is first adopted by the directors and then submitted to the members for the approval[***14] required by the local statute.  In many states a surrender of franchise may be filed before any corporate activities have been begun. [Emphasis in original.]
 
For a decision involving the voluntary dissolution of a nonstock corporation in which the matter was submitted to [*173] a vote of the members, see Morris Alpert and Sons, Inc. v. Kahler, 31 Colo. App. 345, 502 P.2d 98 (1972). n7

n7 Reference to works which use the expression "nonprofit corporation" are not intended to intimate any opinion of this Court as to whether a Maryland nonstock corporation and a "nonprofit corporation" are one and the same in all cases.  See 45 Op. Att'y Gen. 44 (1960).

   Judgment of the Circuit Court for Anne Arundel County reversed and case remanded for further proceedings.

   Costs to be paid by appellees. 

BROWNING-FERRIS, INCORPORATED v. ANNE ARUNDEL COUNTY,MARYLAND 
No. 151, September Term, 1980
 
Court of Appeals of Maryland
 
292 Md. 136; 438 A.2d 269; 1981 Md. LEXIS 313; 16 ERC (BNA)1863; 12 ELR 20264

 December  15, 1981, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Wolff, J., pursuant to certiorari to the Court of Special Appeals.

DISPOSITION: Judgment of the Circuit Court for Anne Arundel County vacted, and case remanded for further proceedings consistent with this opinion.  Each party to pay one-half of the costs.

CORE TERMS:  waste, hazardous, interstate commerce, ordinance, transportation, disposal, regulation, manifest, transport, license, hazardous waste, commerce clause, radioactive, interstate, toxic, licensing, originating, transporting, inspection, shipment, commerce, incidental, dispose, landfill, enact, regulating, transporter, dominant purpose, severable, transported

COUNSEL: Thomas M. Downs, with whom were Blumenthal, May, Downs & Merrill, [***6] P.A. on the brief, for appellant/cross-appellee.

   Thomas G. Redman, Assistant County Solicitor, for appellee/cross-appellant.

JUDGES: Smith, Digges, Eldridge, Cole, Davidson and Rodowsky, JJ.  Eldridge, J., delivered the opinion of the Court.

OPINIONBY: ELDRIDGE

OPINION: [*138] [**270] Seeking to control the transportation and depositing of various hazardous and toxic wastes, and radioactive materials within its borders, Anne Arundel County enacted two ordinances in 1979, Bill Nos. 158-79 and 159-79, codified as Anne Arundel County Code § 11-401 and § 11-408 (g), (h) and (i).  This case concerns the validity of several sections of the two ordinances.

   The disputed provisions of the ordinances can be summarized as follows. Section 11-408 (g) (1) (ii) absolutely prohibits the disposal in and transportation through Anne [*139] Arundel County of various hazardous wastes n1 not originating in that county.  Section 11-408 (g) (1) mandates that all who would transport hazardous wastes through the county must have a license. The same section also requires a license to dispose of hazardous wastes in Anne Arundel County.  In order to obtain either a transportation or a disposal [***7]license, a manifest must be submitted to the county detailing the quantity and type of waste involved.  Section 11-408 (g) (1) (i) provides that a cargo manifest also accompany in transit each shipment of hazardous wastes, and that the manifest be retained at the disposal site.  Section 11-408 (i) specifies a $1,000 annual fee for the license to transport hazardous waste through Anne Arundel County, required by § 11-408 (g) (1).  The licensing section also provides that each transporting vehicle of a licensee must be annually registered for a $50 fee (but the section states that the $1,000 license fee "shall include the first registered vehicle,") and be "regularly inspected."

n1 We shall use the term "hazardous wastes" as a shorthand for the substances defined as hazardous, toxic and special waste at § 11-401 (2) of the ordinance including:
 
"[a]ny hazardous solid or liquid waste such as highly flammable or caustic materials, explosives, pathological waste, sewage sludge or effluent, poisons; infectious waste from doctors' offices such as syringes, patients' specimens, discarded dressings, etc. and radioactive materials.  This also includes the designated hazardous substances as defined in COMAR 08.05.05.04 and 08.05.05.18."

[***8]

   Finally, § 11-408 (g) (1) (iii) prohibits absolutely the disposal of radioactive materials in the county.  And § 11-408 (h) requires that a person obtain a "Certificate of Emergency Transport" in order to transport various radioactive materials through the county.  Such a certificate is made available for $50 plus any additional amount necessary to cover the cost of inspection, supervision and escort services which are "prescribed by approving agencies." The time and route to be travelled are to be specified by the County Health Officer and the Chief of Police.  Section 11-408 (i) sanctions no more than four "emergency transports" per year without obtaining a hazardous waste transportation license for $1,000.

   [*140] Browning-Ferris, Inc. is the owner and operator of a landfill located on Solley Road in Anne Arundel County, which is licensed by the State of Maryland to receive hazardous, but not radioactive, wastes. Browning-Ferris is also a hauler of hazardous (but non-radioactive) waste materials within Anne Arundel County.  The county notified the corporation that compliance with the new regulations was expected, and, as a result of that notification, Browning-Ferris[***9] filed a petition in the Circuit Court for Anne Arundel County challenging the ordinances on various grounds and seeking declaratory and injunctive relief.

    The circuit court (Wolff, J.) declared that § 11-408 (g) (1) (ii) of the Anne Arundel County ordinance, prohibiting transportation through the county and disposal in the county of hazardous wastes originating outside of the county, violated the Commerce Clause of the United States Constitution, Art. 1, § 8, cl. 3.  The court went on to declare that all other provisions of the ordinances relating to hazardous waste and radioactive materials transportation, in §§ 11-408 (g) (1), 11-408 (h) and 11-408 (i), were void on the ground of federal preemption.  On the other hand, the court upheld those portions of the ordinances in § 11-408 (g) (1) regulating the disposal of hazardous wastes and prohibiting the disposal of radioactive materials in the county.  Finally, the court permanently enjoined the [**271] county from implementing or enforcing § 11-408 (g) (1) (including its subsections) as it pertained to transportation of hazardous wastes and radioactive materials, and §§ 11-408 (h) and 11-408 (i) in their entireties.

   The county[***10] appealed, attacking the injunction and the declaratory judgment to the extent they struck down parts of the ordinances. Browning-Ferris appealed from the injunction and declaratory judgment insofar as they upheld the portions of the ordinances regulating hazardous waste disposal and prohibiting radioactive materials disposal in the county.  This Court, on its own motion, granted a writ of certiorari before oral argument in the Court of Special Appeals.

   [*141] I.

   Section 11-408 (g) (1) (ii) of the Anne Arundel County Code prohibits absolutely the transportation through and disposal in Anne Arundel County of hazardous wastes from any areas other than Anne Arundel County. n2 In this respect, the ordinance is very similar to a New Jersey law, prohibiting importation of wastes into that state, which was struck down by the United States Supreme Court in Philadelphia v. New Jersey, 437 U.S. 617, 98 S.Ct. 2531, 57 L.Ed.2d 475 (1978). The New Jersey Supreme Court, at 68 N.J. 451, 348 A.2d 505, had upheld the act as advancing vital health and environmental objectives, while posing little burden upon interstate commerce. Philadelphia v. New Jersey, supra, 437 U.S. at 620. The[***11] Supreme Court disagreed, however, holding that the act "[o]n its face . . . imposes on out-of-state commercial interests the full burden of conserving the State's remaining landfill space.  . . . [T]he State has overtly moved to slow or freeze the flow of commerce for protectionist reasons." Id. at 628. The Court stated that the New Jersey act represented an "attempt by one State to isolate itself from a problem common to many by erecting a barrier against the movement of interstate trade." Ibid.

n2 Section 11-408 (g) (1) (ii) reads:

   "(ii) Hazardous, toxic and special waste from areas other than Anne Arundel County shall not be accepted at the sanitary or other landfills in Anne Arundel County.  Such waste may not be transported on the roads of Anne Arundel County, or in the coastal zones as defined in the Coastal Zone Commission of Anne Arundel County Report, unless expressly permitted by this subtitle."

   Although recognizing that New Jersey might well have had valid health and environmental[***12] or financial reasons for enacting the law in question, the United States Supreme Court held that it was impermissible in any case to accomplish these legitimate ends "by discriminating against articles of commerce coming from outside the State unless there is some reason, apart from their origin, to treat them differently." Id. at 626-627. n3

n3 The Court held that wastes are, for commerce clause purposes, articles of commerce, and that laws affecting wastes in interstate commerce are subject to constitutional scrutiny.  Philadelphia v. New Jersey, 437 U.S. 617, 622, 98 S.Ct. 2531, 57 L.Ed.2d 475 (1978).

   [*142] It is obvious that § 11-408 (g) (1) (ii) of the Anne Arundel County Code does exactly what is forbidden by Philadelphia v. New Jersey. n4 The ordinance, while permitting transportation and disposal of hazardous waste under certain conditions if the waste originates within the county, nonetheless closes down the county's borders to all of those who would either transport or dispose of wastes[***13] originating from outside the county.  Thus the ordinance overtly discriminates against articles in interstate commerce. Since no reason has been advanced for treating out-of-county wastes differently from in-county wastes, apart from their origin, we hold that § 11-408 (g) (1) (ii) is void under Philadelphia v. New Jersey, supra, as impermissibly discriminating [**272]against articles in interstate commerce. n5 The county may not attempt to avoid [*143] what amounts to a problem of state and national scope by cutting itself off from the rest of the country.  That is clearly prohibited by the Commerce Clause.

n4 For commerce clause purposes, local ordinances have been required to withstand at least the same degree of constitutional scrutiny as state laws. See, e.g., Huron Portland Cement Co. v. City of Detroit, Michigan, 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852 (1960); City of Chicago v. Atchinson, T. & S. F. Ry., 357 U.S. 77, 78 S.Ct. 1063, 2 L.Ed.2d 1174 (1958); City of Chicago v. Willet Co., 344 U.S. 574, 73 S.Ct. 460, 97 L.Ed. 559 (1953).

n5 During oral argument, counsel for the county suggested that, if we find § 11-408 (g) (1) (ii) violative of the Commerce Clause, we should nonetheless hold the provision valid as applied to hazardous waste moving in intrastate commerce. The effect of counsel's suggestion would be to permit disposal in and transportation through Anne Arundel County of hazardous wastes from the county itself, and from everywhere else in the entire world, except wastes originating from the other counties and cities in Maryland.  In effect, counsel is requesting that we sever this section of the ordinance, holding it invalid as it applies to interstate waste, but valid for intrastate waste.

   Although there is a presumption that a legislative body intends its enactments to be severable, nevertheless that presumption is not conclusive, even if the enactment contains a severability clause.  In such cases, we have held that the issue is "what would have been the intent of the legislative body, if it had known that the statute could be only partially effective." O. C. Taxpayers v. Ocean City, 280 Md. 585, 600, 375 A.2d 541 (1977). See also, Shell Oil Co. v. Supervisor, 276 Md. 36, 48, 343 A.2d 521 (1975); Anne Arundel County v. Moushabek, 269 Md. 419, 428, 306 A.2d 517 (1973); Sanza v. Md. Board of Censors, 245 Md. 319, 338, 226 A.2d 317 (1966). This Court has indicated that "[w]hen the dominant purpose of an enactment may largely be carried out notwithstanding the statute'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. See also Shell Oil Co. v. Supervisor, supra, 276 Md. at 49; Anne Arundel County v. Moushabek, supra, 269 Md. at 430. The converse of this proposition is also true; if the dominant purpose of the enactment cannot be carried out in light of the invalid portions, that would weigh against severability.

   In the present case, there is no indication that the county would ever have enacted a measure enabling the county and the entire world to transport through and to dispose of hazardous wastes in the county, while at the same time exluding waste originating from other regions of Maryland.  Moreover, on its face, the dominant purpose of § 11-408 (g) (1) (ii) is clearly to keep all non-local hazardous wastes off the roads and out of landfills of the county. The voiding of the prohibition against transportation and disposal of hazardous wastes of interstate origin clearly thwarts the dominant purpose of the ordinance. Thus the county would not be able to advance its dominant purpose in enacting § 11-408 (g) (1) (ii) if it were permitted to enforce the ordinance only against waste originating in Maryland, but not against waste from outside of Maryland.  Section 11-408 (g) (1) (ii) is not severable, therefore, and it must fall entirely.  Moreover, to sever the provision as suggested in oral argument, would present serious equal protection issues under Art. 24 of the Maryland Declaration of Rights and the 14th Amendment of the United States Constitution.  See, Bruce v. Dir., Chesapeake Bay Aff., 261 Md. 585, 601-611, 276 A.2d 200 (1971).

[***14]

   II.

   Section 11-408 (g) (1) requires that all who would transport hazardous wastes through Anne Arundel County have on file with the county an application and a license issued by the county.  The same section requires that a manifest detailing the nature and quantity of each shipment also be on file with the county. n6 Section 11-408 (g) (1) (i) requires that the manifest accompany all shipments of hazardous wastes through the county. n7 Section 11-408 (i) imposes a $1,000 annual fee for obtaining the license required by [*144] § 11-408 (g) (1).  Section 11-408 (i) also requires that "[e]ach transporting vehicle of a licensee shall be annually registered and regularly inspected," and subject to a fifty dollar additional registration fee. n8 No details are provided revealing the specific [**273] nature or frequency of the requisite vehicle inspections.

n6 Section 11-408 (g) (1) reads, in pertinent part, as follows:

   "Before engaging in the transport . . . of hazardous, toxic and special waste, an application and a license issued by the county must be on file with the county department of inspections and permits.  Applications for a license to engage in hazardous and special waste transport . . . shall be made to the department of inspections and permits on forms provided by such department and shall be accompanied by a manifest detailing the quantity and quality of the waste. The following conditions and prohibitions shall apply to the transporting . . . of hazardous, toxic and special wastes in Anne Arundel County:"
[***15] 

n7 Section 11-408 (g) (1) (i) states:

   "A manifest of all hazardous, toxic and special waste materials shall accompany all shipments while in transit and be retained at the site of disposal."
n8 Section 11-408 (i) states:

   "The annual license fee for the privilege of transporting permitted hazardous, toxic and special wastes in or through Anne Arundel County shall be one thousand dollars ($1,000.00), and shall include the first registered vehicle, provided that any person may transport, under proper certificate, no more than four (4) emergency transports in any calendar year without obtaining a license. Each transporting vehicle of a licensee shall be annually registered and regularly inspected and shall be subject to an additional registration fee of fifty dollars ($50.00).

   The licensing and manifest requirements apply with equal force to all hazardous wastes transported through the county, including hazardous wastes originating in Anne Arundel County.  Unlike § 11-408 (g) (1) (ii) dealt with in Part I of this opinion, these provisions do not discriminate against articles [***16]in interstate commerce, and so do not fall within the scope of Philadelphia v. New Jersey, supra. It is argued, however, that the licensing and manifest requirements impose an impermissible burden on interstate commerce.

   A leading case in the Supreme Court on the subject of state-imposed burdens on interstate commerce is Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970). In that case, Arizona required that essentially all cantaloupes grown and offered for sale in the state be packed according to mandatory specifications.  The Supreme Court, in reviewing the validity of the measure in the context of whether it unduly burdened interstate commerce, indicated the general approach to follow in making such a determination (Pike v. Bruce Church, Inc., supra, 397 U.S. at 142, quoted approvingly in Philadelphia v. New Jersey, supra, 437 U.S. at 624):
 
"Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its [*145] effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.  . [***17] . . If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities."
 
Having already determined that the county's licensing and manifest requirements apply evenhandedly, the inquiry should now be focused on whether the effects on interstate commerce are only incidental; what the burden imposed on interstate commerce is; what the putative local benefits of the regulations are; whether those benefits might be promoted in some other way with less burden on interstate commerce; and, ultimately, whether the burden on commerce is, in light of the total analysis, clearly excessive in relation to the putative local benefits.

   The first of these questions is whether the burden on interstate commerce imposed by the county ordinances may be characterized as direct or incidental. Typically, a regulatory scheme which imposes its burdens directly and purposefully on interstate transporters or the movement of articles in interstate commerce, is characterized as directly[***18] burdening interstate commerce. See, e.g., George W. Bush & Sons Co. v. Malloy, 267 U.S. 317, 45 S.Ct. 326, 69 L.Ed. 627 (1925); Buck v. Kuykendall, 267 U.S. 307, 315, 45 S.Ct. 324, 69 L.Ed. 623 (1925) (opinions by Justice Brandeis striking down Maryland and Washington laws, respectively, which required licenses to operate certain interstate transportation businesses); Michigan Public Utilities Commission v. Duke, 266 U.S. 570, 45 S.Ct. 191, 69 L.Ed. 445 (1925) (invalidating a Michigan law similar to the Maryland and Washington laws struck down in the previous two cases cited).  On the other hand, a state statute which has been enacted for a purpose other than regulation per se of interstate commerce, but which nonetheless may have some [*146] effects upon interstate commerce, is characterized as a law only incidentally burdening such commerce. See, e.g., Pike v. [**274] Bruce Church, Inc., supra, 397 U.S. at 142-143; Shafer v. Farmers Grain Co., 268 U.S. 189, 199, 45 S.Ct. 481, 69 L.Ed. 909 (1925) (North Dakota law regulating conditions for purchase and sale of grain). See also cases cited in Shafer v. Farmers Grain Co., supra, 268 U.S. at [***19]199, nn. 3, 4.

   This court, as well as the Supreme Court, has often recognized that distinguishing between incidental and direct burdens on interstate commerce is a starting point of analysis in determining the validity of any state statute which affects such commerce. See, e.g., Davis v. State, 283 Md. 358, 369-370, 390 A.2d 1112 (1978); Governor v. Exxon, 279 Md. 410, 431-432, 370 A.2d 1102 (1977), aff'd, 437 U.S. 117, 98 S.Ct. 2207, 57 L.Ed.2d 91 (1978).

   Davis, supra, upheld a statute, partially on the ground that its effects on interstate commerce were incidental to the overriding purpose of the state which was to foster and protect the population of crabs in Maryland waters.  Similarly in Exxon, supra, we upheld a statute which, inter alia, prohibited operation of service stations within the state by oil companies.  The law, on its face, regulated intrastate activities, and its burden on interstate commerce was only incidental.

   The conclusion to be drawn is that, if the burden on interstate commerce imposed by a state or local statute is only incidental, this is a factor militating in favor of the statute's validity under the Commerce Clause. On the [***20]other hand, if the state or local statute directly imposes a burden on interstate commerce, that is a factor militating against validity of the regulation under the Commerce Clause. A determination at the outset that a statute directly imposes a burden on interstate commerce, tips the scales against validity, and substantial and important local purposes, difficult to effectuate in any other way, would have to be adduced in order for a court ultimately to find the ordinance valid.

   The burdens imposed by Anne Arundel County's ordinances on those who would transport hazardous wastes [*147] through the county are of the direct variety; they are embodied in the regulations themselves and are directly and purposefully imposed on interstate haulers.  The burdens do not arise in the context of a general scheme only incidentally affecting interstate activities, such as that involved in Governor v. Exxon, supra. Specifically, the regulations here require each transporter to obtain a license for himself ($1,000) and for each transporting vehicle ($50).  In addition, each vehicle must be "frequently" inspected.  Since the county does not specify either the nature or frequency of inspections, [***21] we presume that the county purports to allow inspections at any time and to any degree.

   Furthermore, the licensing and manifest requirements affect equally all transport of hazardous wastes through the county and not simply local operators. Thus, if a hauler in New York wished to transport hazardous wastes to Virginia, and planned to route his vehicle through Anne Arundel County, he would be in violation of the county ordinances if he did not obtain the requisite licenses and file a manifest. And if he did obtain the licenses and file a manifest, every part of his vehicle would be subject to inspection by anyone representing the county.  Under the county ordinance, these provisions would apply even to those whose transporting activities in the county were restricted to interstate or state highways, and whose vehicles never travelled on county roads. n9

n9 We note that the State of Maryland has regulations concerning transportation of hazardous substances too, but that those rules would appear not to apply to the transporter engaged in interstate commerce since they apply only to those who "transport . . . from a source within the State to a facility within the State." Maryland Code (1974, 1981 Cum. Supp.), § 8-1413.2 (1) of the Natural Resources Article.

[***22]

    In addition, if Anne Arundel County may enact such requirements consistent with the Commerce Clause, so may other counties in Maryland, and counties in every other state as well.  If each county has that power to [**275] regulate, it follows that each would have authority to enact regulations unique unto itself.  Every county, then, could have regulations in this area different from those of every other [*148] county.  If those other counties enacted regulations in the area, a person transporting hazardous wastes from New York through Maryland to Virginia would be burdened not simply with the responsibility of meeting the requirements of Anne Arundel County, and those of several other counties in Maryland, but of every other local government in every state on his route.

   The burdens imposed on interstate commerce by the county's regulations are direct and are very substantial.  They necessarily impede the free flow of articles in interstate commerce through the county by imposing broad licensing and inspection requirements on the transporters. Furthermore, while the burden imposed on interstate commerce by Anne Arundel County is alone substantial, if other localities were[***23] also to enact regulations in the same area, the resulting cumulative burden on interstate commerce might well be insurmountable. 

   The county, in its brief, argues that their regulations are not unreasonable or impermissible burdens on commerce because they were enacted in response to "increased citizen complaints and county observations of off-site problems generated by landfills [which] produce a conclusion that there is substantial likelihood or potential for traffic problems and water and soil contamination." The county attorney claims that there were two primary purposes of the ordinances:

   "1. To limit traffic and landfill generated problems by reducing truck or vehicle volume on County roads, and to reduce quantities of designated hazardous, toxic and special waste in County landfills; and

   2. To measure, by license and gathering of information, the volume and characteristics of hazardous waste carried on the roads of Anne Arundel county and/or deposited in County landfills." n10

n10 It should be noted that neither the ordinances themselves nor any proceedings of the County Council or other body have been called to our attention which reflect that these indeed were the actual purposes of the county in enacting Bill Nos. 158-79 and 159-79.  We shall assume, for purposes of this case, that the county attorney's statements do accurately reflect the purposes of the county.

[***24]

   [*149] As previously discussed, the county may not accomplish its first objective by prohibiting transportation through and disposal in the county of wastes not originating in the county.  As for the second objective, there are other means presently available for the county to determine the volume and characteristics of wastes transported and disposed of in the county other than by the county's scheme.

   The federal Department of Transportation (D.O.T.), pursuant to § 1804 of the Hazardous Materials Transportation Act, 49 U.S.C. § 1801 et seq., has issued detailed and comprehensive regulations governing transportation of hazardous wastes. 49 C.F.R. § 171.  These regulations apply expressly to all interstate motor vehicle and vessel carriage of hazardous wastes and to intrastate carriage under certain circumstances.  49 C.F.R. § 171.1.  The regulations mandate that shipping papers describe hazardous materials which are transported. In addition, Environmental Protection Agency (E.P.A.) regulations, 40 C.F.R. §§ 261-267, require that persons who transport hazardous wastes, and who are subject to the D.O.T. regulations, must carry a manifest prepared by the generator of [***25]the hazardous waste. 40 C.F.R. §§ 262.20-23.  The manifest must describe the contents of the shipment in accordance with the detailed requirements of the D.O.T. regulations at 49 C.F.R. § 172.202-.204.  The D.O.T. regulations also require that the E.P.A. manifest be carried by all transporters of the waste and be retained by each of them, the shipper and the designated final recipient of the wastes. 49 C.F.R. § 172.205.  Finally, the D.O.T. has issued detailed safety regulations covering highway carriage of hazardous goods, and specifically pertaining to [**276] labeling, 49 C.F.R. § 172.300-.558, packaging, 49 C.F.R. § 173.1-.1300, and the vehicles in which they are carried, 49 C.F.R. § 177.800-.870.

   The State of Maryland also administers a hazardous waste transportation and disposal program. n11 The State law [*150] requires, inter alia, that a producer of hazardous waste must label each shipment, and must provide the hauler with a manifest, which he must carry, detailing the contents of each shipment. Code (1974, 1981 Cum. Supp.), § 8-1413.2 (1) and § 8-1413.2 (m) (2) of the Natural Resources Article.  The statute also provides that no person may transport[***26] hazardous wastes unless certified by the Department of Health and Mental Hygiene.  In addition, no vehicle may be used to transport hazardous waste within the State unless the vehicle is certified by the Department of Health and Mental Hygiene.  § 8-1413.2 (1) of the Natural Resources Article.

n11 The State program would appear to be valid and authorized pursuant to 49 U.S.C. § 1811; 42 U.S.C. § 6941-49; 40 C.F.R. § 256; etc.  As stated at note 9, supra, the transportation portions of the State laws apply only to shipments to and from points within the State.

   Thus, the local ordinances would not appear to be necessary for Anne Arundel County to accomplish its second series of objectives, namely to have knowledge of the nature of hazardous substances being transported through the county. Between the State and federal laws and regulations, all transportation of hazardous substances through the county is already subject to the type of controls and requirements which the county seeks to impose through the [***27]portions of § 11-408 (g) (1) dealing with transportation. Thus the county's interests "could be promoted as well with a lesser impact on interstate activities," Pike v. Bruce Church, Inc., supra, 397 U.S. at 142.

   We conclude that the portions of Anne Arundel County Code § 11-408 (g) (1), § 11-408 (g) (1) (i), and § 11-408 (i), although perhaps enacted to advance laudable local purposes, pose undue burdens on interstate commerce and thus must fall.  This decision comports with the tenor of Supreme Court cases in this area.  In Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 79 S.Ct. 962, 3 L.Ed.2d 1003 (1959), for example, the Supreme Court struck down an Illinois statute which required a special design of mudguards on trucks traveling through the state as a safety device.  While pointing out that "safety measures carry a strong presumption of validity when challenged in court," id. at 524, the court nevertheless held that this particular statute was a [*151] nondiscriminatory local safety measure which placed an unconstitutional burden on interstate commerce. Id. at 529. The court found that the regulations would seriously interfere with the operations[***28] of interstate haulers, who transfer the same trailer from tractor to tractor, in moving the trailer across the nation.  In addition, the court pointed out that the Illinois regulation conflicted with an Arkansas regulation on the same subject, and that the conflict suggested that
 
"this regulation of mudguards is not one of those matters 'admitting of diversity of treatment, according to the special requirements of local conditions.'" (Ibid., quoting Chief Justice Hughes in Sproles v. Binford, 286 U.S. 374, 390, 52 S.Ct. 581, 76 L.Ed. 1167 (1932)).
 
See also Southern Pac. Co. v. State of Arizona, 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed. 1915 (1945).

   We conclude that regulating transportation of hazardous wastes moving in interstate commerce is not a subject admitting of such "diversity of treatment" as to enable every county in this or other states to enact its own rules. n12 Thus the provisions of § 11-408 (g) (1), § 11-408 (g) (1) (i) and § 11-408 (i) of the county ordinances are void to the extent that they apply to the transportation of hazardous wastes.

n12 It may be quite another matter for a State to impose regulations in this area if consistent with the provisions cited at note 11, supra.

[***29]

   III.

   We agree with the circuit court, however, that the remaining portions of [**277]§ 11-408 (g) (1) and § 11-408 (g) (1) (i), requiring a license to dispose of hazardous waste in the county, and requiring that the cargo manifest be retained at the dumpsite, are valid regulations. Once the discriminatory restrictions of § 11-408 (g) (1) (ii) are eliminated, the licensing and manifest requirements of § 11-408 (g) (1) and § 11-408 (g) (1) (i) apply across the board to all hazardous [*152] waste disposed of in Anne Arundel County, and thus do not discriminate against waste from sources outside of the county.

   Moreover, unlike the transportation requirements dealt with in Part II above, these disposal requirements do not pose an unreasonable burden on interstate commerce. In fact, the provisions affect articles in interstate commerce at the point at which they are taken out of the stream of commerce and are laid to rest.  When viewed in juxtaposition to the legitimate desire to control and supervise locally the disposal sites and actual disposal of hazardous wastes within the county, the burdensome effects on interstate commerce of the requirements are relatively[***30] insubstantial. n13

n13 The transportation requirements invalidated in Part II of this opinion, and the disposal requirements dealt with in this Part III, are largely contained in the same sections of the Anne Arundel County Code.  Sections 11-408 (g) (1) and 11-408 (g) (1) (i) provide:

   "(g) (1) Before engaging in the transport and/or disposal of hazardous, toxic and special waste, an application and a license issued by the County must be on file with the county department of inspections and permits.  Applications for a license to engage in hazardous and special waste transport and/or disposal shall be made to the department of inspections and permits on forms provided by such Department and shall be accompanied by a manifest detailing the quantity and quality of the waste. The following conditions and prohibitions shall apply to the transporting and/or disposal of hazardous, toxic and special wastes in Anne Arundel County:

   (i) A manifest of all hazardous, toxic and special waste materials shall accompany all shipments while in transit and be retained at the site of disposal."
 
Unlike § 11-408 (g) (1) (ii), prohibiting transportation and disposal of only foreign hazardous waste in the county, which we found not to be severable between its applications to interstate and intrastate commerce, the above-quoted provision is clearly severable in its applications to disposal as opposed to transportation of hazardous wastes. See note 5, supra.  It is evident from the language of the provision that the county council had two dominant purposes in enacting § 11-408 (g) (1): to regulate, through the means of licensing, disposal and transportation of hazardous waste. If either one or the other were to be found invalid, the other purpose could still be achieved effectively.  Thus the provision lends itself to severability.  We believe that had the county council known that one portion would be found invalid, it would still have enacted the other portion.

[***31]

   IV.

   We also hold that neither federal nor state law preempts the local disposal and siting regulations of § 11-408 (g) (1) and § 11-408 (g) (1) (i).  In Philadelphia v. New Jersey, [*153] supra, 437 U.S. at 620, n. 4, the court commented on the subject, stating that "Congress expressly has provided that 'the collection and disposal of solid wastes should continue to be primarily the function of State, regional and local agencies . . .,'" quoting 42 U.S.C. § 6901 (a) (4).  The State of Maryland, in turn, has apparently left open, to some degree, the field of local regulation in this area to counties.  Although prior to 1980 a very strong case for preemption by occupation might have been made, with enactment in that year of the Hazardous Waste Facility Siting Program, codified at Code (1974, 1981 Cum. Supp.), § 3-701 through § 3-713 of the Natural Resources Article, the Legislature has indicated its intent that counties may under certain circumstances enact their own hazardous waste disposal programs. Specifically, § 3-705 of the act expressly preempts local legislation on the subject of hazardous waste transportation and disposal if the operator of a disposal site[***32] obtains a State-issued Certificate of Public Necessity. Browning-Ferris does not have such a certificate, and therefore is subject to local regulation. If it obtained a certificate it would apparently be completely exempt from local ordinances such as those before us.

   It seems clear, therefore, that by virtue of § 3-701 et seq., the Legislature intended [**278] to permit local regulation of disposal of hazardous wastes where the local measures are not in conflict and are not expressly preempted by State law.

   V.

   Browning-Ferris also challenges the county ordinances insofar as they regulate the disposal and transportation of radioactive materials, § 11-408 (g) (1) (iii) and § 11-408 (h).  However, because it appears from the record that Browning-Ferris neither transports through nor disposes in Anne Arundel County any radioactive materials covered by [*154] the county regulations, Browning-Ferris is without standing to challenge these portions of the ordinances.

   VI.

   To summarize, we hold that Anne Arundel County Code, § 11-408 (g) (1) (ii), is invalid in its entirety because it overtly discriminates against articles in interstate commerce. We further hold that those[***33] portions of § 11-408 (g) (1), § 11-408 (g) (1) (i) and § 11-408 (i), regulating the transportation of hazardous wastes, are unconstitutional in light of the burden which the place on interstate commerce. n14 On the other hand, §§ 11-408 (g) (1) and 11-408 (g) (1) (i), to the extent that they regulate the disposal of hazardous waste in the county, are valid.  We express no opinion as to the validity of § 11-408 (g) (1) (iii) and § 11-408 (h) which seek to regulate the transportation and disposal of radioactive materials in the county.  Upon remand, the declaratory judgment and injunction should be modified to reflect the determinations made in this opinion.

n14 As earlier pointed out, the circuit court invalidated these portions of the ordinances on federal preemption rather than commerce clause grounds.  In our view, there was an insufficient basis for this holding by the circuit court.

   Judgment of the Circuit Court for Anne Arundel County vacted, and case remanded for further proceedings consistent [***34]  with this opinion.

   Each party to pay one-half of the costs. 

ROCHELLE K. DEERING v. DONALD A. DEERING; MARY J. ANDREWS v.SAMUEL JUSTUS ANDREWS 
Nos. 58, 60, September Term, 1981
 
Court of Appeals of Maryland
 
292 Md. 115; 437 A.2d 883; 1981 Md. LEXIS 316

 December  8, 1981, Decided

   PRIOR HISTORY: [***1]  
Two appeals from the Circuit Court for Prince George's County; McCullough, J., and the Circuit Court for  Anne Arundel  County; Thieme, J., pursuant to certiorari to the Court of Special Appeals.

DISPOSITION: In No. 60, Andrews v. Andrews, so much of the decree as relates to the adjustment of the equities in marital property vacated and case remanded to the Circuit Court for Anne Arundel County for further proceedings consistent with the views expressed herein.  Costs to be paid by the appellee.  In No. 58, Deering v. Deering, so much of the decree as relates to the adjustment of the equities in marital property vacated and case remanded to the Circuit Court for Prince George's County for further proceedings consistent with the views expressed herein.  Costs to be paid by the appellee.

CORE TERMS:  marital property, pension, marriage, divorce, spouse, chancellor, retirement benefits, retirement, pension benefits, monetary award, equitable, retirement plan, marital, vested, decree, property acquired, et seq, annulment, pension right, expectancy, termination, vesting, alimony, annuity, partner, dissolution, non-vested, contingent, allocating, military

COUNSEL: No. 58, Jeffrey B. Fisher, with whom were Fisher & Walcek on the brief, for appellant.

   No. 58, Allen J. Kruger and C. Philip Nichols, Jr., with whom were Goldman, Nichols, Kovelant, Pedersen, Hurtt & Kruger on the brief, for appellee.

   No. 60, Charles W. Ayres, Jr., for appellant.

   No. 60, No brief filed for appellee.

JUDGES: Murphy, C. J., and Smith, Digges, Eldridge, Cole, Davidson and Rodowsky, JJ.  Digges, J., delivered the opinion of the Court.

OPINIONBY: DIGGES
 
OPINION: [*117] [**884] It has been said that when a marriage begins, it is made in heaven and will last for life.  Modern earthly experience, however, has frequently proven otherwise.  Thus, when the marital bond is terminated by law, there inevitably arises a profound necessity to determine as between the former partners what is to be the property of each. n1 To this end, Maryland's new Property Disposition in Divorce and Annulment Law, Md. Code (1974, 1980 Repl. Vol.), §§ 3-6A-01 et seq. of the Courts and Judicial Proceedings Article, has substantially modified the traditional property rights of the husband and wife in a[***5] divorce proceeding by allowing the chancellor to grant a monetary "adjustment of the equities . . . of the parties concerning marital property . . . ." With this opinion, in which we decide two cases involving the same basic issues, we shall address the scope of a spouse's rights in civilian retirement benefits acquired by his or her marriage partner during the coverture period. n2 In the cases here, each wife [**885] has appealed from the chancellor's decision that the husband's pension rights do [*118] not in any way constitute marital property under the statutory scheme.  We disagree with these sweeping determinations, however, and remand these cases for further consideration of the claims here asserted.  Before addressing the merits, we set forth the relevant facts of each action.

n1 See Pattiz, In a Divorce or Dissolution Who Gets the Pension Rights: Domestic Relations Law and Retirement Plans, 5 Pepperdine L. Rev. 191 (1978).

n2 Concerning military retirement benefits, see Hill v. Hill, 291 Md. 615, 620-621, 436 A.2d 67, 70 (1981), where this Court, relying on the recent United States Supreme Court decision of McCarty v. McCarty, 453 U.S. 210, 101 S. Ct. 2728 (1981), held that "under the Supremacy clause, upon the dissolution of a marriage, [the federal military retirement statute] precludes a Maryland court from dividing military nondisability retired pay as marital property pursuant to 3-6A-05." Because of this decision, Hill did not address whether military retired pay constitutes marital property under the Maryland statute.  Id. n.6.

[***6]

   In the first case we consider, the appellant, Rochelle K. Deering, was granted a divorce a vinculo matrimonii from Donald A. Deering, the appellee, by the Circuit Court for Prince George's County, in March, 1981, after a marriage of sixteen years.  At the time of the divorce, the husband had been employed by the Maryland National Capital Park and Planning Commission as a park police officer for fifteen years and had attained the rank of captain.  As a result of this employment, appellee possesses certain unmatured, fully vested pension rights based on obligatory contributions deducted from his pay. n3 The record discloses that between April, 1966, and June, 1972, Captain Deering contributed 5.5% of his base wages to a pension fund under a mandatory payroll deduction; since that time, 7% of his salary has been taken for this purpose.  All of the husband's payments to the pension fund, as of the divorce date, were made during the marriage, and, by December, 1980, these remittances, including interest, amounted to $18,181.68.  The only way for appellee to withdraw his contributions to the retirement [*119] plan in a lump sum, however, is to resign his position and surrender[***7] all future rights to the plan benefits.  In an effort to determine the value of the husband's retirement annuity obtained during the marriage, Mrs. Deering adduced actuarial testimony to the effect that if the husband were to terminate his employment at the time of the divorce but leave his pension contributions in the park police retirement system, then in 1991, when appellee could begin to receive full benefits, he would collect $7,775.00 per year.  The actuary calculated the present value of this stream of future pension income to be $64,233.00.

n3 At this point, it is appropriate that we define some of the terms we use in this opinion.  In the context of disputes over marital property arising in an action for divorce, a pension is generally regarded as "vested" when the minimum terms of employment necessary to receive retirement pay has been completed; a vested pension thus "survives the discharge or voluntary termination of the employee.  In Re Marriage of Brown, 15 Cal. 3d 838, 842, 126 Cal.Reptr. 633, 635 (1976); Robert C.S. v. Barbara J.S., 434 A.2d 383, 386 n.5 (Del. 1981); In Re Marriage of Hunt, 78 Ill.App.3d 653, 397 N.E.2d 511, 515 (1979). A vested pension right is not the same as a "matured" or unconditional right to immediate receipt of retirement payments, and we note that "pensions are generally said to mature . . . at the time benefits become presently payable." Robert C.S. v. Barbara J.S., supra, n.3; In Re Marriage of Brown, supra; In Re Marriage of Hunt, supra.  Thus, depending on the provisions of a particular retirement plan, an employee's pension entitlement may vest after several years of work, although it does not mature until he reaches a specified age and is compelled or elects to retire and receive benefits.  Finally, a "non-contributory" plan is one funded solely by the employer, while a "contributory" pension scheme requires payments by the employee usually in the form of payroll deductions.  In Re Marriage of Hunt, supra.

[***8]

   In the trial court, Mrs. Deering claimed that, along with other enumerated items, her husband's retirement fund constituted marital property, thus requiring a monetary award to adjust the equities between the parties.  The chancellor, in granting the divorce, ruled that this pension right did not constitute marital property and denied the wife's prayer for relief in this regard.  Appellant was, however, awarded custody of the parties' two children and exclusive possession of the family home and the family use personal property for a period of three years.  See Md. Code (1974, 1980 Repl. Vol.), §§ 3-6A-01, 3-6A-06 of the Courts and Judicial Proceedings Article.  In addition, [**886]the husband was ordered to pay $150.00 per month in technical alimony and $300.00 per month for child support.  The wife appealed from that part of the decree which denied her assertion that the husband's pension constituted marital property and we granted certiorari before the Court of Special Appeals ruled on the matter.

   Mary J. Andrews, the appellant in the other case before us, obtained in November, 1980, a divorce a vinculo matrimonii from appellee Samuel Justus Andrews in the Circuit Court[***9] for Anne Arundel County.  The parties, by stipulation, settled in this case all issues concerning the termination of their sixteen-year marriage except one; Mr. and Mrs. Andrews could not agree on the proper consideration to be given the husband's civil service pension when adjusting the equities of each spouse in marital property pursuant to §§ 3-6A-01, et seq. of the Courts and Judicial Proceedings Article.

   [*120] The record discloses that the husband, age 52, is employed by the United States Government as a pipe fitter and that he has worked in that capacity for fifteen years; Mr. Andrews served in the military for about six years before he obtained his present job.  This combined 21 year government service entitled the husband to a civil service pension upon retirement at age 59. n4 Like that of Captain Deering in the other case now before us, appellee Andrews' pension has vested and is funded in part by obligatory deductions from his basic pay.  5 U.S.C. §§ 8334(a) (1), 8338(a).  Mr. Andrews acknowledges that he had contributed approximately $12,675.00 toward his retirement and that all of these payments were made during the marriage period.  For her part, Mrs. Andrews[***10] pointed out to the chancellor that, "she stayed at home, . . . worked, . . . [and] helped [the husband] during [the] entire time that he was earning this pension. . . ." The wife then argued that "she shouldn't be cut out entirely . . ." from enjoyment of a portion of the husband's retirement benefits "just because [the parties] are getting a divorce" on the eve of the husband's retirement, and that it was the intention of the new divorce statute "to make this type of property marital property." The chancellor, however, declared that Mr. Andrews' pension rights were not marital property within the statute's purview, prompting the wife to bring this appeal which we also examine on certiorari before the intermediate court has passed judgment on it.

n4 See 5 U.S.C. §§ 8333-8338 determining eligibility for benefits and various amounts to be paid based on length of service and age of retiree.

   This State's recently enacted Property Disposition in Divorce and Annulment Act, which spawned these twin controversies, [***11] is codified in sections 3-6A-01 through 3-6A-07 of the Courts and Judicial Proceedings Article (1974, 1980 Repl. Vol.), and, before discussing the merits of the issues presented here, we set forth its pertinent provisions.  Preliminarily, we are informed by section 3-6A-01 (e) of the act that
 
"[m]arital property" is all property, however titled, acquired by either or both spouses during their [*121] marriage. It does not include property acquired prior to the marriage, property acquired by inheritance or gift from a third party, or property excluded by valid agreement or property directly traceable to any of these sources.
 
In dealing with such property, section 3-6A-05 (a) directs that
 
[i]n granting an absolute divorce or annulment, or at any time within 90 days thereafter, if in its decree granting the divorce or annulment the court has expressly reserved the power to do so, the court shall determine which property is marital property if the division of property is an issue.  Family use personal property or the family home shall not be considered marital property so long as it is the subject of a use and possession order.
 
Next, part (b) of[***12] section 3-6A-05 commands the court to determine the value of all such marital property. Part (b) then continues:
 
After making the determination [of value of marital property], the court may grant [**887] a monetary award as an adjustment of the equities and rights of the parties concerning marital property, whether or not alimony is awarded. The amount of the award and the method of its payment shall be determined after considering each of the following factors:

   (1) The contributions, monetary and nonmonetary, of each party to the well-being of the family;

   (2) The value of all property interests of each spouse;

   (3) The economic circumstances of each spouse at the time the award is to be made;

   (4) The circumstances and facts which contributed to the estrangement of the parties;

   (5) The duration of the marriage;

   (6) The age and the physical and mental condition of the parties;

   [*122] (7) How and when specific marital property was acquired, including the effort expended by each party in accumulating the marital property;

   (8) Any award or other provision which the court has made under this Subtitle 6A with respect to family use personal property or the family[***13] home, and any award of alimony; and

   (9) Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.
 
Finally, part (c) of section 3-6A-05 provides that "[a] monetary award made under this section may be reduced to a judgment to the extent that any part of the award is due and owing."

   Our initial task under this statutory outline, therefore, is to review the determination of the trial courts in these cases that the pension benefits acquired by the husbands did not constitute "marital property." In considering the answer to this query, it is well to recognize that section 3-6A-01 et seq. represents a new legislative approach to the concept of marriage. This is made clear by the preamble to that law where the General Assembly has declared "that marriage is a union between a man and a woman having equal rights under the law [and that] [b]oth spouses owe a duty to contribute his or her best efforts to the marriage, and both, by entering into the marriage, undertake to benefit both spouses. . . ." 1978 Md. Laws, ch. 794; see Report of Governor's Comm. on Domestic Relations Laws (1978).  In this[***14] regard, it is significant that over the past several years, pension benefits have become an increasingly important part of an employee's compensation package which he or she brings to a marriage unit. n5 Moreover, in a situation where economic circumstances prevent a husband and wife from saving or investing a portion of the wage earner's income, the pension right swells in importance as retirement or [*123] vesting approaches, and may well represent the most valuable asset accumulated by either of the marriage partners. See In Re Marriage of Brown, 15 Cal.3d 838, 847, 126 Cal.Rptr. 633, 638 (1976); In re Marriage of Miller, 609 P.2d 1185 (Mont. 1980); Fay v. Fay, 437 N.Y.S.2d 601, 602 (1981); Rogers and Rogers, 45 Or.App. 885, 609 P.2d 877, 880-81 (1980). Accordingly, those states, which, like Maryland, confer authority on courts considering divorce matters to make some form of distribution of joint and separate property upon termination of a marriage, with near unanimity, subject retirement benefits in general to division between the former spouses. E.g., Malone v. Malone, 587 P.2d 1167 (Alaska 1978); Van Loan v. Van Loan, 116 Ariz. 272, 569 P.2d 214[***15] (1977); n6 In Re Marriage of Mitchell, [**888] 579 P.2d 613 (Colo. 1978) (en banc); In Re Marriage of Brown, 15 Cal.3d 838, 126 Cal.Reptr. 633, 544 P.2d 561 (1976) (en banc); Robert C.S. v. Barbara J.S., 434 A.2d 383 (Del. 1981); Tavares v. Tavares, 58 Hawaii 541, 574 P.2d 125 (1978); Ramsey v. Ramsey, 96 Idaho 672, 535 P.2d 53 (1975); In Re Marriage of Hunt, 78 Ill.App.3d 653, 397 N.E.2d 511 (1979); Libunao v. Libunao, 388 N.E.2d 574 (Ind.App. 1979); In Re Marriage of Schissel, 292 N.W.2d 421 (Iowa 1980); Foster v. Foster, 589 S.W.2d 223 (Ky.App. 1979); Sims v. Sims, 358 So.2d 919 (La. 1978); Miller v. Miller, 83 Mich.App. 672, 269 N.W.2d 264 (1978); Elliott v. Elliott, 274 N.W.2d 75 (Minn. 1978); In Re Marriage of Powers, 527 S.W.2d 949 (Mo.App. 1975); Vert v. Vert, 613 P.2d 1020 (Mont. 1980); Kullbom v. Kullbom, 306 N.W.2d 844 (Neb. 1981); Kruger v. Kruger, 375 A.2d 659, 73 N.J. 463 (1977); LeClert v. LeClert, 80 N.M. 235, 453 P.2d 755 (1969); Majauskas v. Majauskas, 441 N.Y.S.2d 900 [*124] (1981); Keig v. Keig, 270 N.W.2d 558 (N.Dak. 1978); Rogers v. Rogers, 45 Or.App. 885, 609 P.2d 877 (1980);[***16] Hansen v. Hansen, 273 N.W.2d 749 (S.D. 1979); Cearley v. Cearley, 544 S.W.2d 661 (Tex. 1976); Englert v. Englert, 576 P.2d 1274 (Utah 1978); Payne v. Payne, 82 Wash.2d 573, 512 P.2d 736 (1973) (en banc); Bloomer v. Bloomer, 84 Wis.2d 124, 267 N.W.2d 235 (1978). See generally Annot., Pension or Retirement Benefits as Subject to Award or Division by Court in Settlement of Property Rights Between Spouses, 94 A.L.R.3d 176.

n5 See 29 U.S.C. §§ 1001 (Employee Retirement Security Act (ERISA), Congressional findings and declaration of policy).

n6 The eight community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, and Washington) have, upon dissolution of a marriage, traditionally divided equally between the parties all property acquired by the marriage partners, however titled.  Although Maryland's statute, providing solely for an equitable, monetary adjustment of marital property rights between former spouses, neither requires equal partitioning of marital property nor authorizes a court to change title to such property, the rationale of decisions from community property jurisdictions has proven useful in determining whether pension rights represent "marital property" under common law state statutes.  See Robert C.S. v. Barbara J.S., 434 A.2d 383, 387 (Del. 1981); In Re Marriage of Hunt, 78 Ill. App. 3d 653, 397 N.E.2d 511, 516-17 (1979).

[***17]

   This compendium of representative cases essentially views pension benefits as an economic resource acquired with the fruits of the wage earner spouse's labors which would otherwise have been utilized by the parties during the marriage to purchase other deferred income assets.  In this regard, the New Jersey Supreme Court, in interpreting the provisions of that state's marital property act, which is similar to that of Maryland, stated:
 
[t]he equitable distribution provision is not concerned with income but with a person's assets in an economic sense on a date certain.

   The right to receive monies in the future is unquestionably such an economic resource.  In most situations its present dollar value can be computed.  . . . No one would quarrel with the proposition that the recipient of a life estate created by a testamentary or inter vivos trust owned a valuable asset which would be subject to equitable distribution.  So, too, if one purchased or acquired an insurance annuity which paid a weekly sum certain to the beneficiary for life, the right to collect those funds would also be considered property subject to distribution.  There are many different types of employee[***18] benefits, which employees or former employees receive, which everyone would readily admit are assets that have been acquired during employment.  Deferred compensation, stock options, profit-sharing and pensions are typical examples. [Kruger v. Kruger, supra, 375 A.2d at 662.]
 
[*125] We agree with the analysis used by our sister state, for there is no reason to exclude one form of deferred income asset from the marital estate while including others.  Both the nonemployed spouse and his or her wage earning marital partner have the same retirement goals and expectancies regarding the pension benefits as they would if they provided for their later years by using wage income to purchase other investments.  And it is manifestly contrary to the language and purpose of section 3-6A-05 to strip the nonemployee spouse of the value of the retirement asset by precluding the chancellor from evaluating its worth prior to adjudicating the property rights of the estranged marriage partners. This determination is certainly supported by the sweeping language of section 3-6A-01 (e).  There, "marital property" is defined [**889] as "all property, however titled, acquired by[***19] either or both spouses during the marriage." (emphasis supplied). n7 The term property, "when considered in a broad sense, is a term of wide and rather comprehensive signification.  . . . It has been stated that the term embraces everything which has exchangeable value or goes to make up a man's wealth -- every interest or estate which the law regards of sufficient value for judicial recognition." Diffendall v. Diffendall, 239 Md. 32, 36, 209 A.2d 914, 915 (1965). See Bouse v. Hutzler, 180 Md. 682, 686, 26 A.2d 767, 769 (1942).

n7 Although the statute contains exclusions from the marital estate of "property acquired prior to the marriage, property acquired by inheritance or gift . . . or property excluded by valid agreement," they are not relevant to the facts in the cases now before us.

   We recognize that there are, of course, a wide variety of retirement plans available to both private and public employees.  Funding and administration of retirement annuities often differ, and most important, the rights[***20] which the beneficiaries possess depend on many factors -- some flowing from the contract establishing the plan, others from statute.  See discussion in Robert C.S. v. Barbara J.S., 434 A.2d 383, 385-86 (Del. 1981). n8 While the appellate tribunals [*126] in jurisdictions requiring distribution of marital property generally acknowledge a spouse's right, co-extensive with that of the wage earner spouse, to a portion of retirement benefits earned during the marriage, some of these courts attempt to distinguish among the various types of retirement plan benefits, determining one to constitute marital property while another variety of pension right is not so classified.  For example, a few jurisdictions, while characterizing vested, unmatured pension benefits as marital property, have declined to so classify a non-vested retirement annuity. E.g., Miller v. Miller, 83 Mich.App. 672, 269 N.W.2d 264 (1978); Daffin v. Daffin, 567 S.W.2d 672 (Mo.App. 1978). It is on this basis, also, that some courts which recognize spousal rights in accumulated retirement benefits upon termination of a marriage have held that military retirement pay was not marital property. E.g., Paulsen [***21]  v. Paulsen, 601 S.W.2d 873 (Ark. 1980); In Re Marriage of Mitchell, 579 P.2d 613 (Colo. 1978) en banc); see note 2 supra. In New Jersey, there appears to be some disagreement over whether an employee's rights in a noncontributory retirement plan constitute marital property. Compare, Mueller v. Mueller, 166 N.J.Super. 557, 400 A.2d 136 (1979), with Weir v. Weir, 173 N.J.Super. 130, 413 A.2d 638 (1980). The dominant trend in this area of the law, [*127] however, rejects such distinctions between pension benefits when making the threshold determination of whether a retirement plan constitutes marital property and postpones consideration of the possibly contingent nature of such rights until valuing the asset or apportioning the marital property between the parties.  As was cogently noted by the court in Weir:

   [t]he fact is that the concept of vesting, though embodied in the [retirement] plan [**890] document itself, really has little meaning from the standpoint of the ultimate decision which must be made under [the marital property act].  Our equitable distribution statute requires that property . . . acquired during marriage . . . be subject[***22] to equitable distribution upon divorce. There is no requirement of vesting. In the final analysis, one must determine whether a property right has been acquired during the marriage and whether equity warrants its inclusion in the marital estate in light of its limitations.  If deemed includable, the court must mold its judgment to assure a fair allocation of that right.  [Weir v. Weir, supra, 413 A.2d at 640 (citations omitted).]
 
Thus in In Re Marriage of Brown, 15 Cal.3d 838, 126 Cal.Reptr. 633, 544 P.2d 561 (1976) (en banc), the California Supreme Court, in what has become the leading case in this area, concluded that prior decisions were erroneous in excluding non-vested pension benefits from the marital estate.  In holding that a non-vested, non-contributory pension interest is a variety of marital property rather than a mere expectancy of gain, the Brown court reasoned that "[s]ince pension benefits represent a form of deferred compensation for services rendered, the employee's right to such benefits is a contractual right, derived from the terms of the employment contract.  Since a contractual right is not an expectancy but a chose in action, a form[***23] of property, . . . an employee acquires a [judicially recognized] property right to pension benefits when he enters upon the performance of his employment contract." Id. at 845, 126 Cal.Reptr. at 637 [*128] (citations omitted).  Moreover, the court explained, the fact that a nonvested pension interest may be contingent upon continued employment does not "degrade that right to an expectancy [because] [t]he law has long recognized that a contingent future interest is property." Id. at 847 n.8, 126 Cal.Reptr. at 638, 544 P.2d at 566. Such contingencies, explained Brown, should be taken into account by the trial court, not when determining whether the retirement plan is properly includable in the marital estate, but, rather, when allocating the property rights between the parties to the divorce. Id. at 848, 126 Cal.Reptr. at 639, 544 P.2d at 567. We are persuaded that the view expressed in Brown and Weir, square with the concept embodied in section 3-6A-01, which on its face includes all forms of "property" as marital property to be considered by the chancellor when adjusting the equities of the husband and wife, and we here embrace it.  We find a substantial [***24] number of courts, in states requiring some form of marital property division, including our Court of Special Appeals, which have arrived at the same conclusion regarding the proper treatment of pension benefits in this context. Ohm v. Ohm, 49 Md.App. 392, 431 A.2d 1371 (1981); e.g., Van Loan v. Van Loan, supra (Arizona); Robert C.S. v. Barbara J.S., supra (Delaware); Linson v. Linson , 618 P.2d 748 (Haw.App. 1980); Shill v. Shill, 100 Idaho 433, 599 P.2d 1004 (1979); In Re Marriage of Hunt, supra (Illinois); Cearley v. Cearley, supra (Texas); DeRevere v. DeRevere, 5 Wash.App. 741, 491 P.2d 249 (1971); Leighton v. Leighton, 81 Wis.2d 620, 261 N.W.2d 457 (1978); compare Weir v. Weir, supra (New Jersey) with Mueller v. Mueller, supra (New Jersey).  Consequently, we conclude that a spouse's pension rights, to the extent accumulated during the marriage, constitute a form of "marital property" subject to consideration by the chancellor in accordance with the section 3-6A-05 mandate unless otherwise prohibited by statute.  See note 2 supra.

n8 For example, the Employee Retirement Security Act, (ERISA), 29 U.S.C. § 1001 et seq., expressly preempts state law and comprehensively regulates all aspects of private pension plans.  Both Mr. Deering's and Mr. Andrews' retirement benefits in these cases accrued under a "governmental plan" which is specifically excepted from compliance with ERISA, 29 U.S.C. §§ 1002 (32), 1003 (b) (1), and we do not discuss what effect, if any, that federal enactment may have on the issues presented here.  See Ohm v. Ohm, 49 Md.App. 392, 400-03, 431 A.2d 1371, 1376-77 (1981). Moreover, 5 U.S.C. § 8345 (j) (1), the enactment governing Mr. Andrews' federal civil service pension, expressly provides that:
 
[p]ayments under this subchapter which would otherwise be made to an employee, . . . or annuitant based upon his service shall be paid (in whole or in part) by the Office to another person if and to the extent expressly provided for in the terms of any court decree of divorce, annulment, or legal separation, or the terms of any court order or court-approved property settlement agreement incident to any court decree of divorce, annulment, or legal separation.
  
Consequently, the issue of whether this federal pension statute preempts this State's divorce law does not arise.  Compare McCarty v. McCarty, supra, (military pension), and Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979) (federal railroad retirement benefits).

[***25]

   Having determined that the retirement benefits accrued by the husbands in the cases now before us constitute "marital property" under section 3-6A-01 of the Courts and Judicial Proceedings Article, it is appropriate that we express [*129]our views on the treatment to be given those assets.  We recognize that trial courts are presented with a complex task in properly valuing and allocating retirement benefits between former spouses. In Bloomer v. Bloomer, 84 Wis.2d 124, 267 N.W.2d 235, 238 (1978), the Wisconsin Supreme Court aptly noted that:
 
[t]he problem of valuing prospective benefits under a pension plan is frequently exacerbated by the fact that unmatured [**891] rights may be terminated by death, discharge, or other contingencies.  Valuation is further complicated by the dual nature of most pension plans.  If the employee continues to work until retirement, the payments to the employee, to the extent derived from employer's contributions, are in the nature of deferred compensation.  If, however, the employee terminates work before retirement age, the usual plan provides at least for the return of employee contributions.  [(citations omitted).]
 
It[***26] is thus apparent that an elastic approach to this problem is required, see I. Baxter, Marital Property § 11.2 (1973 ed., 1980 Cum. Supp.), and it is equally clear that section 3-6A-05 provides the chancellor in this State with the necessary flexibility to fairly devise a marital property adjustment.  Although the law commands the trial court both to "determine which property is marital property," if its division is an issue, and to "determine the value of all [such] marital property," the enactment further provides that, "after making the [required] determination, the court may grant a monetary award as an adjustment of the equities and rights of the parties concerning marital property. . . ." Code (1974, 1980 Repl. Vol.), § 3-6A-05 (emphasis added). n9 Moreover, the amount, if any, of the monetary award and its method of payment is to be fixed by the trial court after its [*130] evaluation of several enumerated considerations, including "[s]uch other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award." Id.

n9 This State's property disposition upon divorce or annulment law is unique among those of other states in that the chancellor is given no authority to transfer title to marital property under the act.  See Grosman, Identification and Valuation of Assets Subject to Equitable Distribution, 56 N.Dak.L.Rev. 201, 207 (1980).

[***27]
 
   Consequently, when determining the proper allocation of retirement benefits between the parties, the trial court should evaluate various alternatives including those developed by the courts of our sister states.  The more salient of these were summarized by the Wisconsin Supreme Court in Bloomer v. Bloomer, supra, as follows:
 
First, the trial court could consider the amount of [the husband's] contributions to the fund, plus interest, and award [the wife] an appropriate share.  . . . Second, the trial court could attempt to calculate the present value of [the husband's] retirement benefits when they vest under the plan. Under this approach, the benefits payable in the future would have to be discounted for interest in the future, for mortality . . . and for vesting. . . . The benefits would then have to be calculated with respect to [the husband's] life expectancy as a retiree.  This calculation involves considerable uncertainty, and the amount yielded changes as different assumptions are used with respect to mortality, job turn-over, etc.  . . . It has been recognized that this kind of calculation can be very difficult and that, where it becomes too speculative, [***28] the trial court should use a different method of valuation.  In re Marriage of Pea, 17 Wash.App. 728, 566 P.2d 212 (1977); Robbins v. Robbins, 463 S.W.2d 876 (Mo. 1971); In Re Marriage of Brown, 15 Cal.3d 838, 126 Cal.Reptr. 633, 544 P.2d 561 (1976).

   Under either of the above two methods, the trial court would have the discretion to order the payment to [the wife] of her share in either a lump sum or in installments, depending primarily on the other assets and relative financial positions of the parties.  The third method, which has been used [*131]widely . . . is to determine a fixed percentage for [the wife] of any future payments [the husband] receives under the plan, payable to her as, if, and when paid to [the husband].  Blitt v. Blitt, 139 N.J. Super. 213, 353 A.2d 144 (Ch.Civ. 1976); DeRevere v. DeRevere, 5 Wash.App. 741, 491 P.2d 249 (1971); In Re Marriage of Rister, 512 S.W.2d 72 (Tex.Civ.App. 1974); In Re Marriage of Brown, supra. Under this approach, of course, it is unnecessary to determine the value of the pension fund at all.  The court need [**892] do no more than determine the appropriate percentage to which the non-employee[***29] spouse is entitled.  [84 Wis.2d 124, 267 N.W.2d 235, 241 (1978); see In Re Marriage of Hunt, 78 Ill.App.3d 653, 397 N.E.2d 511, 519 (1979); Kullbom v. Kullbom, 209 Neb. 145, 306 N.W.2d 844 (1981).]
 
In our view, any of the just articulated approaches may represent the proper one for the trial courts of this State to take.  And whether any particular option represents an appropriate exercise of discretion depends, of necessity, upon the circumstances of the individual case.  In this regard, we point out that section 3-6A-05 does not require an equal division of marital property, nor does it contemplate a decretal award which is so harsh as to force a wage earner spouse to liquidate his or her pension interest in order to satisfy it.  Moreover, we reiterate that the provision does not authorize a property award without the chancellor first giving due consideration to any alimony decreed.  § 3-6A-05 (b) (8).  Thus, in selecting an appropriate method of allocating retirement benefits between estranged spouses (should the chancellor conclude it to be proper to do so), it is important that he carefully consider all relevant factors beginning with those expressly set forth[***30] in 3-6A-05 (b) (quoted supra).  One other vital consideration, as identified by the Delaware Supreme Court in Robert C.S. v. Barbara J.S., supra, 434 A.2d at 388, "is the likelihood whether (and the time when) the employee spouse who holds the pension right will come [*132]into the right of enjoyment." See Wilder v. Wilder, 85 Wash.2d 364, 534 P.2d 1355, 1358 (1975).

   Accordingly, we vacate the decree of the chancellor in each of these cases and remand for the entry of a new decree structured by section 3-6A-05 and the views we expressed in this opinion.

   In No. 60, Andrews v. Andrews, so much of the decree as relates to the adjustment of the equities in marital property vacated and case remanded to the Circuit Court for Anne Arundel County for further proceedings consistent with the views expressed herein.

   Costs to be paid by the appellee.

   In No. 58, Deering v. Deering, so much of the decree as relates to the adjustment of the equities in marital property vacated and case remanded to the Circuit Court for Prince George's County for further proceedings consistent with the views expressed herein.

   Costs to be paid by the appellee. 

MAE H. HILL v. THEODORE R. HILL, JR.; LOIS F. RAUTH (MYERS)v. JAMES A. RAUTH 
Nos. 19, 31, September Term, 1981
 
Court of Appeals of Maryland
 
291 Md. 615; 436 A.2d 67; 1981 Md. LEXIS 287

 October  27, 1981, Decided

   PRIOR HISTORY: [***1]  
No. 19, Hill v. Hill -- Certiorari to the Court of Special Appeals.  Circuit Court for  Anne Arundel  County, Thieme, J.

   No. 31, Rauth (Myers) v. Rauth -- Appeal from the Circuit Court for  Anne   Arundel  County; Lerner, J., pursuant to certiorari to the Court of Special Appeals.

DISPOSITION: No. 19, Hill v. Hill: Judgment of the Court of Special Appeals affirmed.  Costs to be equally divided.  No. 31, Rauth (Myers) v. Rauth: Judgment of the Circuit Court for Anne Arundel County affirmed in part and reversed in part.  Case remanded to that court for the entry of an order in accordance with this opinion.  Costs to be paid by appellant.

CORE TERMS:  retired pay, military, marital property, monetary award, federal law, military retirement, nondisability, retirement, community property, marriage, alimony, equitable, decree, military retirement pay, division of property, dividing, veterans, absolute divorce, wife filed, dissolution, divisible, spouse, community property right, disability benefits, confined, vacated, writ of certiorari, property acquired, common question, divorce

COUNSEL: No. 19, Ellen Levy Widen, with whom were Joel Marc Abramson and Talkin & Abramson on the brief, for appellant and cross-appellee.

   No. 19, Stephen N. Goldberg, with whom was Jerome F. Cohn on the brief, for appellee and cross-appellant.

   No. 31, Michael J. Ragland, with whom were Bell & Ragland, P.A. on the brief, for appellant.

   No. 31, Basil E. Moore, Jr., for appellee.

JUDGES: Murphy, C. J., and Smith, Digges, Eldridge, [***3] Cole, Davidson and Rodowsky, JJ.  Davidson, J., delivered the opinion of the Court.
 
OPINIONBY: DAVIDSON

OPINION: [*616] [**68] On 11 September 1981, Case No. 19, Hill v. Hill, and Case No. 31, Rauth (Myers) v. Rauth, were argued before this Court.  We shall consider these cases together because they both present the common question whether, under the Supremacy Clause of the United States Constitution, n1 upon dissolution of a marriage, federal law n2 precludes the division of military retired pay pursuant to Md. Code (1974, 1980 Repl. Vol.) § 3-6A-01 (e) and § 3-6A-05 (a) and (b) of the Courts and Judicial Proceedings Article, effective 1 January 1979.  Section 3-6A-01 (e) provides in pertinent part:
 
"'Marital property' is all property, however titled, acquired by either or both spouses during their marriage. It does not include property acquired [*617] prior to the marriage, property acquired by inheritance or gift from a third party, or property excluded by valid agreement or property directly traceable to any of these sources."
 
Section 3-6A-05 (a) and (b) provide in pertinent part:

   "(a) In granting an absolute divorce or annulment . . . the court[***4] shall determine which property is marital property if the division of property is an issue.

   "(b) The court shall determine the value of all marital property. After making the determination, the court may grant a monetary award as an adjustment of the equities and rights of the parties concerning marital property, whether or not alimony is awarded.  The amount of the award and the method of its payment shall be determined after considering each of the following factors:

   (1) The contributions, monetary and nonmonetary, of each party to the well-being of the family;

   (2) The value of all property interests of each spouse;

   (3) The economic circumstances of each spouse at the time the award is to be made;

   (4) The circumstances and facts which contributed to the estrangement of the parties;

   (5) The duration of the marriage;

   (6) The age and the physical and mental condition of the parties;

   (7) How and when specific marital property was acquired, including the effort expended by each party in accumulating the marital property;

   (8) Any award or other provision which the court has made under this Subtitle 6A with respect to family use personal property or the family home, and any [***5]award of alimony; and

   [*618] (9) Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award."

n1 U.S. Const. art. VI, cl. 2 provides in pertinent part:

   "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
n2 10 U.S.C. §§ 3911-3929, §§ 6321-6332 (1976 & Supp. III 1979).

   The record in Hill shows that the Appellant and Cross-Appellee, Mae H. Hill (wife), and the Appellee and Cross-appellant, Theodore R. Hill, Jr. (husband), were married in 1955.  The husband served as an enlisted man in the United States Army from 1945 until his retirement in 1972.  Upon his retirement, he became eligible for and received military retirement benefits.

   On 30 November 1979, in the Circuit Court for Anne Arundel[***6] County, a decree was entered granting the wife an absolute divorce, alimony, counsel fees, and a monetary award pursuant to the provisions of § 3-6A-05.  The trial court held that the husband's military retirement benefits were not subject to the provisions of that section and did not consider their value in determining the amount of the monetary award. [**69] The trial court, however, did consider the husband's interest in the military retirement benefits in determining the amount of alimony awarded to the wife.

   The wife appealed to the Court of Special Appeals.  Hill v. Hill, 47 Md.App. 460, 424 A.2d 779 (1981). That Court confined its inquiry to the question whether military retirement pay is "marital property" under § 3-6A.01(e).  While the Court of Special Appeals recognized that "military retirement pay is an economic resource and may be considered in fixing the amount of alimony and child support," it held "that as a matter of state law . . . military retirement pay is income and not 'marital property' subject to division upon divorce." Hill, 47 Md.App. at 469, 424 A.2d at 783. In view of that decision, the Court of Special Appeals found it unnecessary to determine[***7] whether federal law precludes the division of military retirement benefits under § 3-6A-05.  The Court of Special Appeals affirmed the trial court's judgment. n3

n3 The Court of Special Appeals remanded the case to the trial court for the limited purpose of modifying the decree to award counsel fees and costs to the wife rather than the wife's law firm.

   [*619] The wife filed a petition for a writ of certiorari and the husband filed a conditional cross-petition.  We granted both.

   The record in Rauth shows that the Appellant, Lois F. Rauth (Myers) (wife), and the Appellee, James A. Rauth (husband), were married in 1961.  The husband served as a commissioned officer in the United States Navy from 1961 until his retirement in 1979.  Upon his retirement, he became eligible for and received military retired pay.

   In the Circuit Court for Anne Arundel County, decrees were entered granting the wife, among other things, an absolute divorce and a monetary award pursuant to § 3-6A-05.  The trial court held that[***8] under the Supremacy Clause, federal law precludes the division of military retired pay under § 3-6A-05 and did not consider its value in determining the amount of the monetary award.

   The wife filed an appeal to the Court of Special Appeals.  While that appeal was pending, the wife filed a petition for a writ of certiorari. We issued the writ to the Court of Special Appeals before consideration by that Court.

   In McCarty v. McCarty, 453 U.S. 210, 1010 S. Ct. 2728 (1981), the United States Supreme Court considered the question whether, upon the dissolution of a marriage, federal law precludes a state court from dividing military nondisability retired pay pursuant to state community property laws.  After reviewing the language, structure, legislative history, and congressional intent of federal statutes relating to retired pay for military personnel, the Supreme Court concluded that there was "a conflict between the terms of federal retirement statutes and the community property right asserted.  . . ." In determining whether the "'consequences of that [community property right] sufficiently injure the objectives of the federal program to require nonrecognition,'" the Supreme[***9] Court found that "the application of community property principles to military retired pay threatens grave harm to 'clear and substantial' federal interests." In reaching this conclusion, the Supreme Court said:
 
[*620] ". . . Congress has enacted a military retirement system designed to accomplish two major goals: to provide for the retired service member, and to meet the personnel management needs of the active military forces.  The community property division of retired pay has the potential to frustrate each of these objectives." McCarty, 453 U.S. at 232-33, 101 S. Ct. at 2741.
 
The Supreme Court held that the federal law precludes a state court from dividing military nondisability retired pay pursuant to state community property laws.

   We recognize that the analysis in McCarty was premised on a division of [**70]property in a community property state, not an "equitable distribution" state such as Maryland. n4 In our view, the rationale in McCarty is equally applicable to a division of property in an equitable distribution state and its holding is dispositive of the common question presented in Hill n5 and Rauth.  We now hold that, under[***10] the Supremacy Clause, upon the dissolution of a marriage, federal law [*621] precludes a Maryland court from dividing military nondisability retired pay as marital property pursuant to § 3-6A-05. n6 Accordingly, in Hill, we shall affirm the judgment of the Court of Special Appeals on a ground other than the one relied upon by that Court. n7 In Rauth, we shall affirm that portion of the trial court's decree that held that federal law precluded the husband's military retired pay from being divisible as marital property. In view of the parties' agreement that the appropriate amount of the monetary award was $4,032.75, we shall reverse that portion of the trial court's decree that granted the wife a monetary award in the amount of $2,950.01.  Accordingly, we shall remand the Rauth case to the trial court for the entry of an order granting the wife a monetary award in the amount of $4,032.75.

n4 We note that subsequent to its decision in McCarty, the Supreme Court denied certiorari in Russell v. Russell, 605 S.W.2d 33 (Ky. 1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3158 (1981), and Cose v. Cose, 592 P.2d 1230 (Alas. 1979), cert. denied, 453 U.S. 922, 101 S. Ct. 3158 (1981). Both of these cases involved a division of property in "equitable distribution" states.  See Ky. Rev. Stat. § 403.190 (1970) and Alaska Stat. § 09.55.210 (1973).  In each it was held that military nondisability retired pay was not divisible.

   In addition, the Supreme Court vacated the judgment of the Supreme Court of Montana in In re Marriage of Miller, Mont. 609 P.2d 1185 (1980), vacated and remanded, Miller v. Miller, 453 U.S. 918, 101 S. Ct. 3152 (1981), in which it was held in an "equitable distribution" state that military nondisability retired pay was divisible. See Mont. Rev. Codes Ann. § 48-321 (1977).  The case was remanded "for further consideration in light of McCarty v. McCarty," 453 U.S. at 213, 101 S. Ct. at 3152.

[***11] 

n5 In McCarty, the Supreme Court specifically stated:

   "Under current law, there are three basic forms of military retirement: nondisability retirement; disability retirement; and reserve retirement. For our present purposes, only the first of these three forms is relevant." McCarty,    U.S. at    , 101 S. Ct. at 2731 (citation omitted) (footnote omitted).
 
The Supreme Court considered and decided the sole question whether federal law (10 U.S.C. § 3911 et seq.) precludes a state court from dividing military nondisability retirement pay pursuant to state community property laws.

   In addition to the three basic forms of military retirement referred to in McCarty, 38 U.S.C. §§ 521-23 (1976 & Supp. III 1979) provides for pensions for veterans for nonservice-connected disability or death.  We recognize that when Hill was pending in the Court of Special Appeals, the husband proffered, for the first time, that his military retirement benefits consisted of military nondisability retired pay and veterans' disability benefits. The Court of Special Appeals drew no distinction between these two types of benefits and confined its inquiry to the question "whether military retirement pay is 'marital property'" under § 3-6A-05.  The question whether federal law precludes the division of veterans' disability benefits was not specifically raised, briefed, argued or decided in either the trial court or the Court of Special Appeals.  Accordingly, it will not be considered here.  Md. Rule 885.

[***12] 

n6 In light of this decision, Appellants' contentions in both Hill and Rauth that military retired pay constitutes marital property under § 3-6A-01 (e) and § 3-6A-05 need not be considered here.

n7 In reaching this conclusion, we have determined, after a careful review of the record, that Cross-Appellants' contentions that "the chancellor erred in his award of alimony, counsel fees and costs" and "in his calculation of the monetary award" are without merit.

   No. 19, Hill v. Hill:

   Judgment of the Court of Special Appeals affirmed.

   Costs to be equally divided.

   No. 31, Rauth (Myers) v. Rauth:

   Judgment of the Circuit Court for Anne Arundel County affirmed in part and reversed in part.

   Case remanded to that court for the entry of an order in accordance with this opinion.

   Costs to be paid by appellant. 

VINCENT N. VALENTINE t/a Sandbar Lounge v. BOARD OF LICENSECOMMISSIONERS OF ANNE ARUNDEL COUNTY 
No. 146, September Term, 1980
 
Court of Appeals of Maryland
 
291 Md. 523; 435 A.2d 459; 1981 Md. LEXIS 280

 October  15, 1981, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Thieme, J., pursuant to certiorari to the Court of Special Appeals.

DISPOSITION: Judgment of the Circuit Court for Anne Arundel County affirmed. Appellant to pay the costs.

CORE TERMS:  license, liquor, State Documents Law, administrative construction, regulation, Administrative Procedure Act, contested, subtitle, acquiescence, judicial review, effective, repeal, administrative practice, legislative intent, declaration, rule-making, expenditures, adjudicate, publish, notice, gency, amend, construction placed, long-continued, manufacture, appointed, salaries, clerk, dicta, regulations adopted

COUNSEL: Thomas A. Pavlinic, with whom were Alan S. Forman and Pavlinic & Forman on the brief, for appellant.

   William A. Franch, with whom were L. Dale Burgmeier and Goldsborough, Franch & Collett, P.A. on the brief, for appellee.

JUDGES: Murphy, C. J., and Smith, Digges, Cole, Davidson and Rodowsky, JJ. Rodowsky, J., delivered the opinion of the Court.

OPINIONBY: RODOWSKY

OPINION: [*524] [**460] The question presented in this case is whether the Board of License Commissioners of Anne Arundel County (the Board) is an agency subject to the Administrative Procedure Act (APA), Md. Code (1957, 1978 Repl. Vol.), Art. 41, §§ 244-256A.  We shall hold that it is not.

   Appellant, Vincent N. Valentine, trades as the "Sandbar Lounge" on Fort Smallwood Road in the Pasadena section of Anne Arundel County.  For the year beginning May 1, 1979 he held a class D (taverns), beer, wine and liquor license for those premises, with special licenses permitting Sunday operation and dancing.  On March 7, 1980 the Board summonsed the appellant to show cause why his license should not be suspended or revoked.  A number of alleged violations were charged under the rules and regulations[***4] of the Board which had been generally revised and adopted effective July 1, 1977.  There was no publication of the 1977 rules of the Board in the Maryland Register.  Nor were the Board rules [*525] approved by the Attorney General of Maryland. Asserting that review by the Attorney General and publication in the Maryland Register were prerequisites to the validity of the rules, appellant filed a bill of complaint in the Circuit Court for Anne Arundel County, seeking a declaration that the rules were invalid and an injunction against their enforcement.  Both parties moved for summary judgment.  After taking testimony, the circuit court concluded that the statutes establishing the requirements on which appellant relied did not apply to the Board.  By reference to the declaration requested in the Board's motion for summary judgment, the trial court declared that the Board was not a state agency subject to the APA.  We granted appellant's petition for certiorari prior to consideration of the appeal by the Court of Special Appeals. 

   The statutory requirements on which appellant relies involve three subtitles of Art. 41: the APA, the State Documents Law (§§ 256B-256T) and, under the [***5]subtitle, "General Provisions," § 9.  In each instance we are concerned with the provisions of those statutes as of July 1, 1977.

   In the APA subtitle, § 245 (c) provided, in relevant part, that "prior to the adoption of any rule authorized by law, or its amendment or repeal, the adopting agency shall publish notice of its intended action in the Maryland Register . . . ." n1 Section 246 provided:

   [*526] Each agency shall comply with the provisions of § 9 of this article and the State Documents Law.

   A rule is effective as provided in the State Documents Law, unless otherwise provided by law.

n1 The full text of Art. 41, § 245 (c), as of July 1, 1977, is:

   Except for emergency regulations adopted pursuant to Article 40, § 40A, prior to the adoption of any rule authorized by law, or its amendment or repeal, the adopting agency shall publish notice of its intended action in the Maryland Register, and afford interested persons opportunity to submit data or views orally or in writing.  An agency may not adopt or amend any rule or administrative act which increases the agency's expenditures beyond budgetary limitations without the express approval of the General Assembly; or if the General Assembly is not then in session, without the express approval in writing of the President of the Senate and the Speaker of the House of Delegates, acting jointly and after consulting with and receiving the advice in writing of the joint budget and audit committee.  Approval by the General Assembly or its presiding officers, as provided in this section, is not required if the Governor by proclamation declares that the rule or administrative act to increase an agency's expenditures beyond budgetary limitations is necessary and a matter of emergency.  This limitation with respect to the agency's budget is applicable to every agency in the executive, judicial, and legislative branches of government notwithstanding any exemptions from the provisions of this subtitle contained in § 244(a) of this subtitle.

   There is no contention in this case that the special provision of § 245 (c) relating to rules which increase an agency's expenditures is applicable to the Board's rules of July 1, 1977, and we intimate no opinion on the construction or application of that provision.

[***6]

   For the purpose of the APA subtitle, § 244 (a) defined "agency," in relevant part, to mean "any State board, commission, department [**461] or officer authorized by law to make rules or to adjudicate contested cases, except those in the legislative or judicial branches . . . ." n2

n2 As of July 1, 1977 § 244(a) provided in full as follows:

   "Agency" means any State board, commission, department or officer authorized by law to make rules or to adjudicate contested cases, except those in the legislative or judicial branches, and except the Maryland Parole Commission, the Division of Parole and Probation, the Workmen's Compensation Commission, the State Accident Fund, the State Insurance Department of Maryland, the Public Service Commission, the Employment Security Board and the State Tax Commission. The Maryland Automobile Insurance Fund shall not be considered an "agency" within the meaning of this section as to any matter or action with regard to which the Insurance Commissioner has made an express, written finding or determination that compliance with the provisions of the Administrative Procedure Act and/or the State Documents Law by the Maryland Automobile Fund is unnecessary.

[***7]

   The State Documents Law, in § 256C, establishes the Code of Maryland Regulations, and on July 1, 1977 required, inter alia, that there "shall be compiled" therein "[e]very administrative rule adopted by any agency pursuant to the procedures of the Administrative Procedure Act . . . ." n3 The Maryland Register, published at least once every two weeks, is a temporary supplement to the Code of Maryland Regulations. Under § 256F (b), the "Register shall include: (1) [e]very document required to be published in the Code of Maryland Regulations . . . ." For purposes of the State Documents Law as of July 1, 1977, § 256B (c) said that "'[a]gency' [*527] has the same meaning as under the Administrative Procedure Act."

n3 Md. Code (1957, 1978 Repl. Vol.), Art. 41, § 256C (b) (2).

   Section 9 of Art. 41 read as follows on July 1, 1977:

   Prior to the adoption of any rule or regulation by an officer or department of the executive branch of the State of Maryland under any rule-making power granted[***8] by the General Assembly of Maryland, the rule or regulation shall be submitted to the Attorney General of Maryland for approval as to its legality.  Every officer, department, board, commission, bureau and similar agency of the State government other than those within the Legislative and Judiciary Departments who has power to make, promulgate, adopt or enforce rules and regulations shall file copies of them pursuant to the provisions of the State Document Law.  No rule or regulation hereafter made, promulgated or adopted is effective until after compliance with this section.

   Appellant does not assert that Art. 41, § 9 applies directly to the Board. The relevance of § 9 to appellant's argument is its incorporation by reference into § 246 of the APA.  It is appellant's position that the Board is an agency which must comply with the provisions of the APA.

   A board of license commissioners, or "liquor board," such as that for Anne Arundel County, exists and generally functions under Md. Code (1957, 1981 Repl. Vol.), art. 2B.  These boards are granted rule making authority under Art. 2B, § 184 (a). n4 This rule making power can be traced to Ch. 2 of the Acts of the Special Session[***9] of 1933, Md. Code (1924, 1935 Cum. Supp.), Art. 2B, § 50. n5 Article 2B has never set forth [*528] any procedure by which rules are to be adopted by a board of license commissioners.

n4 Art. 2B, § 184 (a) reads:

   In addition to the powers otherwise provided by this article, the Comptroller, the board of license commissioners from any county or Baltimore City, or the State Appeal Board shall, 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.
n5 The General Assembly of Maryland convened in extraordinary session on November 23, 1933, in anticipation of the repeal of U.S. Const. amend. XVIII by U. S. Const. amend. XXI, which was declared ratified on December 5, 1933. Governor Albert C. Ritchie signed Ch. 2 that same day.

   Other principal functions of liquor boards include determining, after notice and hearing, [**462] whether applications[***10] for the issuance of alcoholic beverage licenses should be approved or disapproved (Art. 2B, § 60 (a)), whether, upon protest, existing licenses should be renewed (Art. 2B, § 68 (a)), and whether licenses should be suspended or revoked for violation of law (Art. 2B, §§ 69 (a), 69A and 70).

   In support of his position that the Board is an "agency" under the APA, appellant points out that boards of license commissioners are created by act of the General Assembly and that they administer statutes enacted by the General Assembly, all pursuant to a policy of this State, declared in Art. 2B, § 1, "that it is necessary to regulate and control the manufacture, sale, distribution, transportation and storage of alcoholic beverages within this State.  . . ." However, a mere glance at Art. 2B reflects that it is replete with provisions which apply in only a single county. n6 The Board points out that it may exercise its jurisdiction only within Anne Arundel County. n7 It cites Bernstein v. Board of Education of Prince George's County, 245 Md. 464, 471, 226 A.2d 243, 248 (1967) in which that appellee was held not to be an agency under the APA and where we said that "[a] county board of[***11] education has control of educational matters affecting only the county, subject to the by-laws and policies of the State Board [of Education]." Appellant emphasizes that the Board is appointed by the Governor pursuant to Art. 2B, § 148 (a) and (b-1), and that its members are subject to removal by the [*529] Governor under § 156 (a).  Indeed, in Nesbitt v. Fallon, 203 Md. 534, 102 A.2d 284 (1954), this Court held that a member of the Board of License Commissioners of Anne Arundel County was a civil officer "of the State" within the meaning of Md. Const., Art. II, § 10. n8 The Board counters with Art. 2B, §§ 150 and 151. Liquor boards are appointed by the boards of county commissioners in Carroll, Cecil, Charles and Queen Anne's counties, and by the county executives in Montgomery and Baltimore counties.  The county commissioners constitute the board of license commissioners in Dorchester and Kent counties.  In Howard County, the County Council constitutes the liquor board.  Appellant thrusts with § 155 (c) of Art. 2B which sets the maximum salaries of members of the Board and with § 158 (d) which fixes the salaries of the Board's inspectors, clerk and attorney.  The[***12] Board parries with the fact that its operations are included in the Anne Arundel County annual operating budget, that it occupies, free of rent, premises owned by Anne Arundel County, that its equipment is owned by Anne Arundel County, that, under Art. 2B, § 63 (c), the fees collected for alcoholic beverage licenses approved by it are remitted by the Clerk of the Circuit Court for Anne Arundel County to the county government for its general purposes and that, under § 199 (a), fines imposed by the Board are payable to Anne Arundel County.

n6 The Express Powers Act, Md. Code (1957, 1981 Repl. Vol.), Art. 25A, § 5 (S) specifically withholds from charter counties, such as Anne Arundel, the power to legislate "with reference to licensing, regulating, prohibiting or submitting to local option, the manufacture or sale of malt or spiritous liquors."

n7 Art. 2B, § 152, however, provides:

    In Annapolis, the mayor, counsellor and aldermen of the City of Annapolis, shall constitute the board of license commissioners for said city.  The board of license commissioners of Anne Arundel County shall have no jurisdiction in the City of Annapolis.
[***13] 

n8 Md. Const. art. II, § 10 provides:

   [The Governor] shall nominate, and, by and with the advice and consent of the Senate, appoint all civil and military officers of the State, whose appointment, or election, is not otherwise herein provided for, unless a different mode of appointment be prescribed by the Law creating the office.

   The Attorney General of Maryland has ruled that members of the Board of License Commissioners for Prince George's County are not public officials of Prince George's County for purposes of that jurisdiction's ethics code and its financial disclosure requirements, because they are state officers.  58 Op. Att'y Gen. 3 (1973).

   We add that the license certificate for the Sandbar Lounge in this case reads that the appellant "is licensed by the State of Maryland and the County of Anne Arundel to keep for sale and sell alcoholic beverages . . . ."

   [*530] [**463] There is at least one conclusion which clearly emerges from the foregoing review.  It is that when Art. 41, § 244 (a) says that "'[a]gency' means any State board [or] commission," and[***14] one attempts to apply that definition to a board of license commissioners, the statute does not have so plain a meaning as to preclude resort to administrative construction. See Smith v. Higinbothom, 187 Md. 115, 132-33, 48 A.2d 754, 763 (1946). The administrative construction of the APA from its inception has been that liquor boards are not included, and the General Assembly has acquiesced in that interpretation.

   The APA took effect on June 1, 1957.  Chs. 94 and 428 of the Acts of 1957. Because of the difference between the provisions of the APA relating to appeals from agencies in contested cases and certain provisions of Art. 2B relating to appeals from liquor boards, the Board of License Commissioners for Baltimore City requested the Attorney General to render an opinion on whether it was subject to the APA. n9 By an opinion dated November 21, 1957, he ruled that the APA did not apply.  42 Op. Att'y Gen. 63. The Attorney General placed principal reliance on Md. Code (1957), Art. 41, § 3, which was not a part of the APA, but which provided that "[a]ny officers, boards or commissions not referred to in this article shall not be affected hereby." Inasmuch as liquor boards[***15] were not referred to in Art. 41, it was reasoned that no part of Art. 41, including the APA, affected such boards.  42 Op. Att'y Gen. 63, 64-65 (1957).

n9 The Board of License Commissioners for Baltimore City was, and is, the only such board for which the Attorney General serves as legal adviser.  See Md. Code (1957, 1976 Repl. Vol., 1981 Cum. Supp.), Art. 32A, § 2.

   On May 8, 1962, this Court decided Pearce v. Board of Liquor License Commissioners of Baltimore County, 228 Md. 515, 180 A.2d 651 (1962), involving a protestants' appeal to the circuit court from the grant of a liquor license. One issue related to the timeliness of the applicant's intervention in the circuit court.  By way of dicta we then said: "The Administrative Procedure Act (which is not applicable in this case) does appear to recognize a distinction [*531]between time limitations in regard to the appearance of a party to a proceeding as opposed to an intervenor." Id. at 523, 180 A.2d at 655. Pearce does not give the reason[***16] underlying this parenthetical statement. However, Pearce was authored for this Court by Judge C. Ferdinand Sybert who, as Attorney General, had issued the opinion of November 21, 1957.

   By Ch. 305 of the Acts of 1963, the APA definition of "agency," Md. Code (1957), Art. 41, § 244 (a), was repealed and re-enacted with amendments in order to include the State Insurance Department among those departments which are specifically excepted from the definition.  No change was made in the statute at that time to reject the construction which the Attorney General had placed upon it.

   Art. 41, § 3 was substantially rewritten by Ch. 156 of the Acts of 1969, and further amended by Ch. 415 of the Acts of 1970, all as part of the movement toward a general reorganization of the executive and administrative departments of state government.  As rewritten, § 3 of Art. 41, Md. Code (1957, 1978 Repl. Vol.) provides:

   The executive and administrative departments, offices, boards and other units of the State government now existing or created during this or any subsequent session of the General Assembly which are not assigned to and do not constitute one of the principal departments may be placed[***17] at the discretion of the Governor in one of the principal departments at the time of or at any time after the establishment of the appropriate principal department.  Each of the principal departments shall be constituted and shall have and exercise the rights, powers, duties, obligations and functions provided by law.  Any officers, agencies, boards or commissions specifically exempted in this or any other article shall not be affected hereby.
 
We find no statute or executive order of the Governor assigning boards of license commissioners to a principal [*532] department.  [**464] Nor do we find any statute which specifically exempts boards of license commissioners from the plan for executive department reorganization.

   Again, in 1972, by Ch. 569, the General Assembly re-enacted Art. 41, § 244 (a) to exempt the State Accident Fund, but no change was made affecting the gloss as to liquor boards which the Attorney General had put on "agency."

   It might be contended that the 1969 repeal of old § 3 of Art. 41, on which the Attorney General relied in his 1957 opinion, eliminated the basis for excluding liquor boards from the Art. 41, § 244 (a) definition of "agency," [***18]so that it should thereafter automatically be construed to include license commissioners.  However, the construction lived on after the reason given by the Attorney General for the construction had disappeared.  This is made plain by administrative practice under the State Documents Law, which was enacted by Ch. 600 of the Acts of 1974.

   From 1974 until 1978, § 256B (c) of the State Documents Law said that "agency" has "the same meaning as under the Administrative Procedure Act." The State Documents Law is administered by the Division of State Documents of the Office of the Secretary of State.  In the court below the assistant administrator of the Division of State Documents testified without contradiction that that division has never published the rules and regulations of any liquor board in the State of Maryland.  Indeed, the chairman of the Board, who has served on it for 10 years, testified that on two occasions he submitted rules and regulations of the Board for publication in the Maryland Register but they were turned down by the Secretary of State.

   In 1976, by Ch. 648, and in 1977, by Ch. 528, the APA definition of "agency" was further amended with respect to the Maryland[***19] Automobile Insurance Fund and the Parole Commission, but without the Legislature making any change in the Attorney General's 1957 construction or in the administrative practice of two decades which had resulted therefrom.

   [*533] What we said in Smith v. Higinbothom, supra, 187 Md. at 132-33, 48 A.2d at 763, is applicable here:
 
This Court considers that the construction placed upon a statute by administrative officials soon after its enactment, when not changed by legislative or judicial decision, is generally the best construction.  It is true that the administrative construction of a statute does not preclude an inquiry by the Court into the correctness of such construction, for no custom, however long and generally it has been followed by officials of the State, can nullify the plain meaning and purpose of a statute.  But where the language of a statute is susceptible of two constructions, a long-continued and unvarying construction applied by administrative officials is strong persuasive influence in determining the judicial construction of the statute, and it should not be disregarded except for the strongest and most urgent reasons.  Leitch v. Gaither, 151[***20] Md. 167, 176, 177, 134 A. 317; American-Stewart Distillery v. Stewart Distilling Co., 168 Md. 212, 217, 177 A. 473; Bouse v. Hutzler, 180 Md. 682, 687, 26 A.2d 767, 141 A.L.R. 843 . . . .  By re-enactment of the section now before the Court in exactly the same words contained in the Act of 1908, the Legislature gave tacit approval to the construction placed upon the section by administrative officials.  In declaring the meaning of a statute, the Court may avail itself of the construction put upon it by the Legislature itself through long-continued acquiescence. The Legislature's acquiescence in the administrative construction furnishes a strong presumption that the intention has been interpreted correctly.

   In Read Drug & Chemical Co. v. Claypoole, 165 Md. 250, 257-58, 166 A. 742, 745 (1933), we said the following with respect to opinions of the Attorney General construing statutes:
 
This was an official interpretation and the adoption [*534] of an administrative construction in a case very analogous to, if not identical with, the one now being [**465] considered; and, while courts are not bound by an Attorney General's opinion, or an administrative[***21] construction in conformity therewith, yet, when the meaning of the legislative language is not entirely clear, such legal interpretation and administrative construction should be given great consideration in determining the legislative intent. The Legislature knew, or must be presumed to have known, of this interpretation and administrative construction at the time of the passage of the act of 1933, and must be held to have employed the language it did with that interpretation in view.
 
Accord, Williams v. Loyola College, 257 Md. 316, 329, 263 A.2d 5, 11-12 (1970); Benco Vending v. Comptroller, 244 Md. 377, 382, 223 A.2d 759, 762 (1966); Comptroller v. Rockhill, Inc., 205 Md. 226, 233, 107 A.2d 93, 97 (1954); Vaughan v. Boone, 191 Md. 515, 521-22, 62 A.2d 351, 354 (1948). Here, there was not only an administrative construction, but also a contemporaneous dicta statement by this Court in Pearce v. Board of Liquor License Commissioners, supra, which reinforces the legislative acquiescence in the construction of "agency" in this case.

   In addition to the legislative acquiescence in the administrative construction, there are two other factors which support our[***22] conclusion that "agency" in the APA is not intended to embrace boards of license commissioners.  The State Documents Law definition of "agency" was amended by Ch. 858 of the Acts of 1978 to eliminate the incorporation of the APA definition.  "Agency" now means "any State board, commission, department or officer authorized by law to make rules or adjudicate contested cases, except those in the legislative or judicial branches." Md. Code (1957, 1978 Repl. Vol., 1981 Cum. Supp.), Art. 41, § 256B (c) (1).  The title to Ch. 858 states that the purpose of changing the definition was "to require additional State agencies to comply" with the State Documents Law. Then, by Ch. 464 of the Acts of 1981, § 256B (c) was divided into two subsections.  The first subsection [*535] continues the immediately pre-existing definition but subsection (2) states that "'[a]gency' does not include any Board of License Commissioners in the State." By § 2, Ch. 464 further enacts that it "may not be construed to affect the status of Boards of License Commissioners for any purpose other than exclusion from the State Documents law." n10 We need not in this case determine whether rules and regulations[***23] promulgated by a board of license commissioners in the period between June 1, 1978 and July 1, 1981 n11 were required to be adopted in accordance with the State Documents Law. It is sufficient for present purposes to note that the first explicit declaration by the General Assembly of its intent on the applicability vel non to liquor boards of the rule making procedures of the State Documents Law is consistent with that which we have determined, from legislative acquiescence in the administrative construction, to have been the legislative intent at least up to and including July 1, 1977.

n10 House Bill 1623, which became Ch. 464 of the Acts of 1981, was accompanied in its legislative consideration by a fiscal note stating that the "Division of State Documents, Secretary of State, advises that they do not now publish any of the regulations addressed by this bill and that the legislation is clarifying in nature."

 n11 These are the effective dates of the § 256B amendments discussed above. See ch. 858, sec. 2 of the Acts of 1978; ch. 464, sec. 3 of the Acts of 1981.

[***24]

   Our conclusion is also supported by consideration of the law relative to the limited nature of judicial review of liquor board decisions in contested cases. For example, at the time the APA was enacted, the decision of a circuit court on an appeal from a liquor board was final, unless the case finally decided "a point of law at variance with any decision previously rendered by any other judge of the State on the same question . . . ." Md. Code (1957), Art. 2B, § 175 (f).  That provision continues in effect today.  Md. Code (1957, 1981 Repl. Vol.), Art. 2B, § 175 (f).  Appeals governed by the APA are not so limited. Art. 41, § 256.  [**466] This Court has consistently applied the judicial review provisions of Art. 2B to appeals in liquor board cases, most recently in Brown v. Baer [No. 145, Sept. Term, 1980, decided October 8, 1981].  If in adopting the APA the General Assembly had intended [*536] "agency," as used therein, to embrace liquor boards, it is clear that that intent did not extend to the judicial review provisions of the APA.  Thus, appellant's contention that the APA governs the rule-making function of liquor boards would lead to the seemingly anomalous[***25] result that the General Assembly intended "agency" to have a different meaning as to liquor boards in different sections of the APA, without any express language in the APA to support that distinction. Such a distinction would then necessarily have to rest on having the prior, but more specific, provisions of Art. 2B, § 175 construed to prevail over the later enacted, but more general, judicial review provisions of the APA.  We think the administrative practice shows that the legislative intent was not so subtly compartmentalized and that a liquor board was not intended to be an "agency" under the APA either as to rule-making or in deciding contested cases.

   We hold that as of July 1, 1977 when the rules in issue here were adopted, the Board of License Commissioners of Anne Arundel County was not an "agency" within the meaning of the APA.

   Judgment of the Circuit Court for Anne Arundel County affirmed.

   Appellant to pay the costs. 

WILLIE FREDERICK BRADY v. STATE OF MARYLAND 
No. 108, September Term, 1980
 
Court of Appeals of Maryland
 
291 Md. 261; 434 A.2d 574; 1981 Md. LEXIS 265

 September  14, 1981, Decided

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals.  Circuit Court for  Anne Arundel  County, Goudy, J.

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 to that court with instructions to dismiss the indictment with prejudice.  Costs to be paid by Anne Arundel County.

CORE TERMS:  speedy trial, actual prejudice, jail, incarcerated, balancing test, anxiety, weighed, impairment, breaking and entering, neglect, incarceration, pretrial, weigh, speedy trial right, arraignment, presumed, detainer, balancing, impaired, indictment, excused, intermediate, unaware, arrest, Constitutional Law, Criminal Law, oppressive, postponement, indicted, custody

COUNSEL: Michael R. Malloy, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

   F. Ford Loker, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellee.

JUDGES: Murphy, C. J., and Smith, Digges, Eldridge, Cole, [***4] Davidson and Rodowsky, JJ.  Cole, J., delivered the opinion of the Court.  Murphy, C. J., and Smith and Rodowsky, JJ., dissent.  Smith, J., filed a dissenting opinion at page 270 infra, in which Murphy, C. J., and Rodowsky, J., concur.

OPINIONBY: COLE

OPINION: [*262] [**575] This is the fourth time Willie Frederick Brady has asked an appellate court in the State of Maryland to determine whether he was denied his constitutional right to a speedy trial. The first time he asked, the Court of Special Appeals, in an unreported per curiam opinion, Willie Frederick Brady [*263] v. State of Maryland, No. 1226, September Term, 1978, filed June 11, 1979, held that because the defendant was unaware of the pending charge for most of the 14-month period of delay, a showing of actual prejudice resulting from the delay was necessary for a dismissal of the charge on speedy trial grounds.  This court reversed approximately one year later in Brady v. State, 288 Md. 61, 415 A.2d 1126 (1980) (Brady I), because we determined that the Court of Special Appeals did not weigh all of the various factors relevant to the delay, and we remanded the case to that court for application[***5] of the balancing test in accordance with the principles set forth in our opinion.  On September 22, 1980, the Court of Special Appeals again affirmed Appellant's conviction, this time in a reported opinion, Brady v. State, 46 Md. App. 518, 419 A.2d 390 (1980). We granted certiorari to settle the role of prejudice in speedy trial cases and to emphasize the role to be played by the other factors courts have stressed as important in the balancing process.

   First we shall quote from our summarization of the facts in Brady I:

   The defendant, Willie Frederick Brady, was arrested on June 7, 1977, near the scene of an apparent breaking and entering in Anne Arundel County.  He was charged with breaking and entering and released on bail.  On June 19, 1977, Brady received the following letter from the District Court, sitting in Anne Arundel County:

   "This is to advise you that the above charge(s) [Break & Enter] against you had been dismissed in the District Court.  The State's Attorney's office in Annapolis has failed to comply as to whether this case would be tried in District Court or the Circuit Court.  . . ."

   Unknown to Brady, however, on August 22, 1977, he was indicted[***6] for the same offense by an Anne Arundel County grand jury.  The arraignment was set for September 2, 1977, and a notice of the indictment [*264] and a summons for the arraignment were sent to Brady's last known address.  Both were returned undelivered.  When Brady did not appear on the date set for the arraignment, a bench warrant was issued for his arrest.

   [**576] Brady was held in the Baltimore City Jail from November 1977 to May 29, 1978, on an unrelated charge.  On May 29, 1978, upon Brady's release from the Baltimore City Jail, Anne Arundel County authorities, pursuant to a detainer that had been lodged against him, transported Brady to the Anne Arundel Detention Center.  Brady was arraigned in the Circuit Court for Anne Arundel County on the breaking and entering charge on June 9, 1978; then, for the first time, he learned of the reason for the detainer; and at the arraignment he moved for a speedy trial. A trial date of July 25, 1978, was set.  On July 14, 1978, Brady filed a motion to dismiss the indictment for lack of a speedy trial. When the case was called for trial on July 25, 1978, the State sought a postponement because one of its witnesses, a police officer, [***7] was absent.  The trial court, over the defendant's objection, granted the postponement.

   Brady was finally tried on August 8, 1978, was found guilty by the jury of breaking and entering, and was sentenced to one year's imprisonment.  At that time, the trial court denied his motion to dismiss on speedy trial grounds because Brady had failed to show actual prejudice. [288 Md. at 62-63 (footnote omitted)].

   In Brady I we set forth the constitutional standard applicable in speedy trial cases announced by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). Once there is a pre-trial delay of sufficient length, "it becomes 'presumptively prejudicial', thereby triggering a balancing test [which] necessarily compels courts to approach speedy trial cases on an ad hoc basis." 288 Md. at 65. The factors to be weighed in the balancing, a [*265] non-exclusive list, are "the length of the delay, the reasons for the delay, the defendant's assertion of his speedy trial right, and the presence of actual prejudice to the defendant." Id. The court also identified three interests to be protected in the assessment of actual prejudice: [***8] (i) preventing oppressive pretrial incarceration; (ii) minimizing the anxiety and concern of the accused; and (iii) limiting the possibility that the defense will be impaired. 288 Md. at 67.

   In the circumstances of the present case, the State candidly admits that the fourteen month delay Brady suffered gives rise to a speedy trial claim of prima facie merit.  Therefore, the operation of the presumption is conceded; the State's hurdle is set.  What remains is the application of the balancing test.

   When the Court of Special Appeals applied the test it dealt with the first three factors in one paragraph.  In that paragraph there is nothing to be found that weighs against the defendant.  In fact, when discussing reasons for delay, the second factor, that court assessed it "entirely against the State weighed by its neglect." 46 Md. App. at 519. The intermediate court excused the Appellant's failure to assert his speedy trial right because he was unaware he was being charged with a crime.  It apparently assigned no weight at all to the length of delay.  The obvious result of the appellate court's analysis, so far, is that nothing has been weighed against the defendant and the reasons[***9] for delay factor weighs against the State.  If it had stopped here then, logically, it should have reached a result for the defendant.

   The Court of Special Appeals then went on to analyze actual prejudice and found none "averred, demonstrated or apparent." 46 Md. App. at 519. However, at this point the balancing stopped.  The intermediate court equated or confused actual prejudice, the interests that have to be accommodated in an analysis of actual prejudice, with presumed prejudice.  Its conclusion was that Brady had not been able to show any prejudice, actual or presumed, and that, therefore, he was not entitled to dismissal.  There was no [*266] mention of whatever offsetting weight the State's neglect played.

   The Court of Special Appeals was apparently confused about the mechanics of the application of the Barker balancing test. [**577] Before launching into a discussion of the appellate court's mistakes, a brief explication of the test may provide some guidance.

   The Barker test shares one thing in common with all balancing tests and that is the difficulty in assigning weights to the various relevant factors.  This is particularly true in an area such as this[***10] where the circumstances of each case are different, the people involved in each case are different, and the right alleged to have been abridged is one of constitutional significance. Despite this difficulty, however, it is the function of the court to sift through the various factors, employ some reasoned analysis to determine which are more important and which have greater impact, and reach a just determination as to which way the scales tip.

   A problem peculiar to the Barker test is its use of the terms presumption of prejudice and actual prejudice.  When there has been a lengthy pretrial delay, one of constitional dimension, then a presumption arises that the defendant has been deprived of his right to a speedy trial; a presumption of prejudice.  Once this presumption asserts itself, a balancing test must be employed which involves a weighing of four factors, one of which is actual prejudice. Actual prejudice involves a consideration of three interests the speedy trial right is meant to protect.  Whatever importance it assumes in the final outcome is a function of the facts of the particular case.

   Turning our attention, then, to the application of the Barker test[***11] to the Brady case, the first factor to be weighed is the length of the delay. As the Court of Special Appeals noted, the delay was fourteen months.  What the Court of Special Appeals failed to note, however, is that this must certainly be weighed against the State.  In this case, while fourteen months is enough to invoke constitutional issues, we do not construe it as controlling.

   [*267] The next factor for examination is the reason for the delay.  As we see it, the State, in the performance of its public trust, has a duty to coordinate the efforts of its various criminal divisions in attempting to locate a defendant.  Its failure to do so in the instant case is particularly disheartening.  First, Brady was arrested, released on bail, then informed that the "charge(s)" had been dismissed.  Two months later he was indicted for the same offense.  Two months after that Brady was incarcerated on an unrelated charge in the Baltimore City Jail, where he remained for six months. Nonetheless, even though Brady was right under their noses, the authorities made no attempt to find him.  He remained totally unaware of the pending charges against him.  Upon release from City Jail he[***12] was sent to Anne Arundel County, where he had to wait several weeks between arraignment and the first scheduled date of trial.  As if the State's neglect were not manifest and egregious enough at this point, the State sought and obtained a two week postponement, during which time Brady remained in jail. This prosecutorial indifference tips the scales most heavily in Brady's favor.

   The third factor for examination is the defendant's assertion of his speedy trial right. The Court of Special Appeals excused Brady in this and indeed it should.  This was a direct result of the State's neglect in its duties. Although in most situations this factor would probably weigh against the defendant, in the circumstances of this unusual case it cannot.

   The fourth factor, and the source of some confusion, is actual prejudice. This involves an analysis of the three elements of this factor which the speedy trial right seeks to protect: (i) oppressive pretrial incarceration, (ii) anxiety and concern of the accused, and (iii) impairment of the accused's defense.

   The Court of Special Appeals found that there was "neither incarceration nor could there have been anxiety or concern in the absence of[***13] knowledge." 46 Md. App. at 519. This conclusion clearly belies the facts here. Brady spent from May 29, 1978, the date he was released from Baltimore City Jail, to August 8, 1978, the date he was tried, in Anne Arundel [*268] County Detention Center.  This period of incarceration was due entirely to the State's neglect, [**578] as the Anne Arundel County prosecution could have been instituted while Brady was confined at Baltimore City Jail or perhaps even earlier.  The intermediate appellate court was wrong in so perfunctorily dismissing this period of pretrial incarceration. On this basis alone Brady suffered at least some actual prejudice.

   As to the second element, the appellate court found that Brady had suffered no anxiety or concern as a result of the delay.  It placed no significance on the fact that Brady was placed on probation on May 29, 1978, and should have been released from confinement.  However, pursuant to the detainer, he was sent to Anne Arundel County and arraigned on June 9, 1978, where he first learned of the charges against him.  This sudden awareness that he was not free, but still being held in jail for charges which had been dismissed the year before, [***14]must have generated a response more than mere anxiety. He had to be frustrated.  In which event, the following two months in jail awaiting the outcome of the charges had to exacerbate his concern.  As we have said before:
 
"The speedy trial guarantee recognizes that a prolonged delay may subject an accused to an emotional stress that can be presumed to result in the ordinary person from uncertainties in the prospect of facing public trial or of receiving a sentence longer than, or consecutive to, the one he is presently serving -- uncertainties that a prompt trial removes." [Jones v. State, 279 Md. 1, 17, 367 A.2d 1 (1976) quoting Strunk v. United States, 412 U.S. 435, 439, 93 S. Ct. 2260, 37 L. Ed. 2d 56 (1973).]
 
It is clear that here, too, Brady suffered at least some actual prejudice.

   The Court of Special Appeals then looked at the colloquy between the trial judge and defense counsel and found that the third element, impairment of defense, had been untrammeled because defense counsel was unable to show [*269]that as a result of the delay witnesses had become unavailable or records had been lost.  46 Md. App. at 519-20. In this case it may very well [***15]be that the impairment to Brady's defense was not readily apparent or so prejudicial as to be dispositive.  However, such a long delay potentially creates obstacles in the defendant's ability to present a defense and should not be discounted.

   Counsel's comments illustrate this point:
 
COURT: . . . [A]ny of his witnesses gone, dead?
 
MR. LEGUM: Not that we know of.  . . .

   * * *
 
COURT: Inability for him to obtain records?
 
MR. LEGUM: Not that we know of, Your Honor.  [Emphasis supplied.]
 
The operation of the delay, in and of itself, decreases the chances that pro-defense witnesses can be found, that the defendant can remember the incident in question sufficiently well to assist in his defense, or that exculpatory physical evidence (either at the scene or elsewhere) will turn up.  Thus, while Brady may not have been able to articulate specific indicia of impairment to his defense, a delay of this length and under these circumstances militates against the State's assertion that there has been no impairment. Therefore, we regard the effect of this element to be neutral.

    We conclude that when the State delayed Brady's prosecution for fourteen months[***16] a presumption arose that he had been deprived of his right to a speedy trial. This required the trial court, upon Brady's assertion of his right, to analyze the circumstances attending the case according to the balancing test set forth in Barker.  Had the trial court and the appellate court followed this procedure they would have decided this issue in Brady's favor. The factor most determinative of the issue, in this case, is the reason for the delay: prosecutorial indifference.  Brady's trial was not delayed because of someone's professional judgment regarding the allocation of scarce resources, but because of the inexcusable failure of [*270] the State to check for Brady's presence within the correctional system itself.  However, in our opinion, none of the factors can be found to weigh in favor of the State.  We conclude, therefore, that Brady's speedy [**579] trial rights were unconstitutionally violated.  A dismissal was the appropriate remedy under the facts of this case.  Accordingly, the judgment of the Court of Special Appeals is reversed.

   Judgment of the Court of Special Appeals reversed; case remanded to that court with instructions to reverse the judgment [***17]  of the Circuit Court for Anne Arundel County and to remand to that court with instructions to dismiss the indictment with prejudice.

   Costs to be paid by Anne Arundel County.

DISSENTBY: SMITH

DISSENT:  
Smith, J., dissenting:

   I agree, as I must, that under Barker v. Wingo, 407 U.S. 514, 516, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), and our own cases of Brady v. State, 288 Md. 65, 415 A.2d 1126 (1980); Wilson v. State, 281 Md. 640, 644, 382 A.2d 1053, cert. denied, 439 U.S. 839 (1978); Jones v. State, 279 Md. 1, 6, 367 A.2d 1 (1976), cert. denied, 431 U.S. 915 (1977); Erbe v. State, 276 Md. 541, 546-47, 350 A.2d 640 (1976); Smith v. State, 276 Md. 521, 527-28, 350 A.2d 628 (1976); and Epps v. State, 276 Md. 96, 104-09, 345 A.2d 62 (1975), we must engage in a balancing test to determine whether or not Brady has been denied his right to a speedy trial. However, when I balance the factors here I reach the conclusion that Brady has not been denied a speedy trial. The four factors are: length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.  Let us examine them.

   [*271] a. Length[***18] of the delay

   As the majority opinion correctly indicates, Brady was indicted by the Grand Jury for Anne Arundel County on August 22, 1977.  The case was finally tried on August 8, 1978, a little less than a year later.  It must be remembered that in Barker there was a delay of approximately five years between arrest and trial. The Court considered this "extraordinary," but found it outweighed by other factors, holding there was no denial of the right of a speedy trial. In Dickey v. Florida, 398 U.S. 30, 90 S. Ct. 1564, 26 L. Ed. 2d 26 (1970), decided prior to Barker, Mr. Justice Brennan in a concurring opinion listed the four factors mentioned in Barker, saying that they "are often mentioned as the determinants of reasonableness." It is of interest here that he noted, "The length of the delay, however, appears to be significant principally as it affects the legitimacy of the reasons for delay and the likelihood it had prejudicial effects." 398 U.S. at 48, n. 12. In United States v. Spoonhunter, 476 F.2d 1050, 1057 (10th Cir. 1973), the Court said that "[t]he mere passage of time does not, per se, establish an unconstitutional denial of a right to speedy trial." [***19]

   b. Reason for the delay

   I recognize that it would be nice if the State of Maryland could afford some type of computer system by which a prosecutor or police department could ascertain at any given time whether a specific individual is incarcerated at any place in the State of Maryland.  This is not a perfect world.  So far as I know no such system exists.  The delay here purely and simply was brought about by the fact that Brady was in jail elsewhere on unrelated charges.  In Barker the Court pointed out that although "[a] more neutral reason such as negligence or overcrowded courts should be weighed less heavily [than a deliberate attempt to delay the trial] but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant." Id. 407 U.S. at 531.

   [*272] c. Assertion of the right

   Brady came into the custody of the Anne Arundel County authorities on May 29 and asserted the right on June 9.  Thus, he did in fact promptly assert the right.

   [**580] d. Prejudice

   In Barker the Court recognized three interests of defendants which should be considered in assessing prejudice[***20] to a defendant from delay: "(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired," with the latter being "the most serious . . . because the inability of a defendant adequately to prepare his case skews the fairness of the entire system." 407 U.S. at 532.

   The first interest obviously is not applicable here since Brady was incarcerated on this charge only from May 29 to August 8.  For similar reasons there can be no contention of undue anxiety and concern of the accused.  The majority opinion concedes that Brady's trial counsel commented that "no claim is made" that the defense was in any manner impaired.

   e. Balancing the factors

   When one balances the factors here one notes that although the reason for the delay must go into the balance against the State, it is one the Supreme Court in Barker said should be weighed less heavily against the State than a deliberate attempt to delay the trial.  I am not even sure that the circumstances of this delay rise to the level of negligence.  I know of no requirement that the State must at all times have an instant inventory[***21] available for each prosecutor or sheriff reflecting all persons incarcerated in the State together with their location.  However, the circumstances and the length of the delay do go into the scales against the State.  Let it be noted again that the actual elapsed time [*273] between Brady's passing into the custody of Anne Arundel County and trial was but seventy-one days, May 29 to August 8.  The time from indictment to trial was not the fourteen months to which the majority opinion constantly refers, but eleven months and eighteen days.  As previously noted, under the circumstances existing in Barker the Supreme Court did not regard a delay of approximately five years as a denial of a speedy trial.

   When the majority examine prejudice they do their best to get actual prejudice into the scales on the side of Brady rather than presumed prejudice from the length of the delay.  Let it ring loud and clear that in response to questions from the court to counsel for Brady as to whether "any of [his] witnesses [were] gone [or] dead" or otherwise "not available" or whether Brady had been unable "to obtain records" or "transcripts," the attorney replied, "Not that we know of[***22] . . . ." He went on to say, "No claim is made to that point of prejudice." He presumably was qualified to answer the questions and to make the statement.  For the life of me I cannot see how one can find actual prejudice here.  Although in the final analysis the majority says, "[W]e regard the effect of this element to be neutral," I am unable in the light of this plain statement of counsel to comprehend the majority's statement, "[A] delay of this length and under these circumstances militates against the State's assertion that there has been no impairment."

   All the majority really finds to place in the balance against the State is its failure to know that Brady was in custody. When one notes that no actual prejudice was shown in that Brady could have had no concerns relative to these charges so long as he did not know about them, that there is not the slightest sign here of an impairment of his defense, and that his actual pretrial incarceration on these charges was but seventy-one days, I do not see how one tips the balance in Brady's favor.  In this instance Brady was in the jail of a jurisdiction immediately adjoining Anne Arundel County, Baltimore City. Suppose, however, [***23] that the charge had been in Garrett County and that Brady had been incarcerated at the other end of the State, Somerset or [*274]Worcester County, for instance, would the decision here be the same? If so, are we now to understand that it is incumbent upon a sheriff possessed with a bench warrant for apprehension of an individual to make inquiry of each of the other twenty-three jurisdictions of the State as to whether by chance the accused could be residing in jail there?  If not, within what radius must [**581]inquiry be made?  It seems to me that the majority here in its disgust with the fact that we do not live in a perfect world where one may know at any given moment precisely who is incarcerated in Maryland has put its thumb on the scale on the side of the defendant in the balancing process.  In my view this man was in no way denied a speedy trial. Hence, I would affirm. 

GARY J. COFFEY et al. v. THE DERBY STEEL COMPANY, INC. etal. 
No. 107, September Term, 1980
 
Court of Appeals of Maryland
 
291 Md. 241; 434 A.2d 564; 1981 Md. LEXIS 257

 September  11, 1981, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Reconsideration Filed October 13, 1981; Denied October 23, 1981.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Wray, J., pursuant to certiorari to the Court of Special Appeals.

DISPOSITION: Judgment affirmed; appellant to pay the costs.

CORE TERMS:  steel, summary judgment, erection, beam, inspection, structural steel, principal contractor, occupation, subcontractor, Workmen's Compensation Act, general contractor, engineer, duty, erect, shop, contractor, workman, furnish, fabricator, deposition, contracted, subcontract, architect, erected, evidence adduced, contributory negligence, contradicted, testing, inspect, specification

COUNSEL: John T. Enoch and H. Patrick Donohue for appellants.

   David M. Buffington, with whom were Semmes, Bowen & Semmes on the brief, for appellee The Derby Steel Company, Inc., and by Sidney Blum for Schafer Testing Laboratories, Inc., other appellee.

JUDGES: Murphy, C. J., and Smith, Digges, Eldridge, Cole, Davidson and Rodowsky, JJ.  Smith, [***5] J., delivered the opinion of the Court.  Cole, J., concurs in Parts i, ii and iii and dissents from Part iv.

OPINIONBY: SMITH

OPINION: [*243] [**566] Two questions are presented in this case: (1) Whether appellee Derby Steel Company, Inc., is a statutory employer under Maryland Code (1957) Art. 101, § 62 and thus immune from any liability to appellant Gary J. Coffey other than for workmen's compensation, and (2) whether Coffey et al. established any liability to them on the part of appellee Philip E. Schafer Testing Laboratories, Inc.  We shall hold that Derby is a statutory employer and that Schafer's liability was not established.

   i The background

   Coffey was injured on the job at the construction site of the Careers Center Building at Anne Arundel County Community College on June 8, 1972.  He was employed as a steel erector by The Prosser Company.  Compensation under the Workmen's Compensation Act was paid to Coffey by Prosser's insurer.  Derby held a subcontract to furnish and erect the structural steel for the building.  It contracted with Prosser to do the actual erection.

   Coffey and his wife sued Derby; R.T.K.L. Associates, Inc., the architect; and Schafer.  The declaration[***6] alleged, among other things, that Derby was "engaged in the design, manufacture and sale of structural steel used in buildings such as the one under construction at Anne Arundel Community College," Coffey's fall by which he was injured, and that this fall "was caused by the carelessness, recklessness, negligence and wanton disregard of the rights of [Coffey] by [Derby], through its agents, servants and/or employees" in a [*244]number of regards.  It was alleged that the architect failed "to use proper care in the design of steel beams," etc.  The declaration said that Schafer "was engaged [in] and undertook to perform inspection and testing work which included the responsibility to inspect and test the design and manufacture of all steel beams used in said construction by structural iron workers such as . . . Coffey [ ] so that said steel beams would be free from defects and irregularities that made their use unsafe and unfit for incorporation into the building under construction," and that Coffey's fall "was caused by the carelessness, recklessness and negligence and wanton disregard of the rights of [Coffey] by . . . Schafer [ ] through its agents, servants and/or[***7] employees" in a number of regards.  Mrs. Coffey joined in a count to recover for a loss of consortium.

   The Circuit Court for Anne Arundel County granted Derby's motion for summary judgment. The trial judge made the finding required by Maryland Rule 605 a which permitted an appeal prior to the end of the whole case.  The Court of Special Appeals affirmed in an unreported opinion.  The case reached us in Honaker v. W.C. & A.N. Miller Dev. Co., 285 Md. 216, 401 A.2d 1013 (1979) (Honaker II), being consolidated for purposes of argument and opinion with the case of Dallas A. Honaker et ux. v. W.C. & A.N. Miller Development Company.  We reversed and remanded for trial.  We concluded the opinion by stating:
 
The sum total of that which was before the trial judge on the motion for summary judgment is susceptible of an inference that Derby is no longer engaged in "the trade, business or occupation" of steel erection. Accordingly, the matter should be tried so that a finding of fact may be made as to whether Derby is in the steel erection business.  [Id. at 232-33.]

   The case was fully tried.  A directed verdict was entered in favor of the architect from which no appeal[***8] has been entered.  The case was submitted to the jury on issues.  A substantial verdict was returned against Derby and Schafer.  The trial [*245] judge entered judgment n.o.v. in favor of Derby and Schafer against Coffey on the ground that Coffey was contributorily negligent and as to Derby on the additional ground that Derby was Coffey's statutory employer.  Coffey appealed to the Court of Special Appeals.  Because there seemed to be some misunderstanding relative to our earlier opinion, we granted Coffey's petition for the writ of certiorari prior to the time the case was heard in the Court of Special Appeals.  We shall not place our decision here as to Schafer on the ground of contributory [**567] negligence. In the course of our discussion we shall develop such additional facts as may be requisite.  As we shall develop, that which was before the trial judge on the motion for judgment n.o.v. was not a carbon copy of that which he considered on the motion for summary judgment.

   ii The law

   We have here essentially two cases, the one against Derby and the one against Schafer.  Two principles of law are applicable to both cases.

   The first such principle is the standard for[***9] appellate review of a judgment n.o.v.  We consider the evidence and the reasonable inferences to be drawn from it in the light most favorable to the party opposing the motion -- here, Coffey.  Wesko v. G.E.M., Inc., 272 Md. 192, 200, 321 A.2d 529 (1974), and Lusby v. First Nat'l Bank, 263 Md. 492, 499, 283 A.2d 570 (1971). This has its limitations, as pointed out by Chief Judge Prescott for the Court in Gatling v. Sampson, 242 Md. 173, 218 A.2d 202 (1966):
 
The principle that the evidence and proper inferences therefrom must be considered in a light most favorable to the plaintiff when determining whether to take a case from the jury on the ground of no proof of primary negligence does not require the taking of isolated sentences, or parts of sentences, in the testimony, and construing them out of context, without any regard to the rest of a witness's testimony.  The testimony to establish primary [*246] negligence must be credible; and that which is incredible should be disregarded.  Cocco v. Lissau, 202 Md. 196 [, 95 A.2d 857 (1953)]; York Motor Express Co. v. State, 195 Md. 525 [, 74 A.2d 12 (1950)]; Olney v. Carmichael, 202 Md. 226 [, 96[***10] A.2d 37 (1953)]. Cf. So. Md. Electric v. Blanchard, 239 Md. 481 [, 212 A.2d 301 (1965)]. [Id. at 182.]

   In reviewing the granting or denial of a motion for summary judgment, all inferences also must be resolved against the moving party.  If the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law, then the judgment sought shall be rendered forthwith.  Maryland Rule 610 d 1.  In Honaker II, 285 Md. at 231, we pointed this out and said that there all inferences were required to be considered in a light most favorable to Coffey.  The fact that the inferences there were required to be so resolved does not make the review here of the granting of judgment n.o.v. precisely the same as the review of the granting of summary judgment, however.  It is true that we said in Porter v. General Boiler Casing Co., 284 Md. 402, 396 A.2d 1090 (1979):
 
The function of the trial judge on such a motion is said to be much the same as that which he performs at the close of all the evidence in a jury trial when motions[***11] for a directed verdict or requests for peremptory instructions require him to determine whether an issue requires resolution by a jury or is to be decided by the court as a matter of law.  Washington Homes [v. Inter. Land Dev., 281 Md. 712,] 716 [, 382 A.2d 555 (1978)]; Lynx, Inc. v. Ordnance Products, 273 Md. 1, 8, 327 A.2d 502 (1974); and Salisbury Beauty Schools v. St. Bd., 268 Md. 32, 41, 300 A.2d 367 (1973). Moreover, "even where the underlying facts are undisputed, if those facts are susceptible of more than one permissible inference, the choice between those inferences [*247] should not be made as a matter of law, but should be submitted to the trier of fact." Fenwick Motor Co. v. Fenwick, 258 Md. 134, 138, 265 A.2d 256 (1970), and cases there cited.  It follows, accordingly, that if there is a conflict between the inferences which may be drawn from that before the court, summary judgment is not proper.  [Id. at 413.]
 
However, as we pointed out in Berkey v. Delia, 287 Md. 302, 326, 413 A.2d 170 (1980), quoting the opinion for the Court by Judge Emory H. Niles in Tellez v. Canton R. R., 212 Md. 423, 430, 129 A.2d 809 (1957),[***12] "the [**568] function of the summary judgment procedure is not to try the case or to decide issues of fact.  It is merely to determine whether there is an issue of fact to be tried, and if there is none, to cause judgment to be rendered accordingly." Such procedure is not a substitute for trial.  Also, as Judge Digges pointed out for the Court in Metropolitan Mtg. Fd. v. Basiliko, 288 Md. 25, 28, 415 A.2d 582 (1980), a trial court "ordinarily, does possess discretion to refuse to pass upon, as well as discretion affirmatively to deny, a summary judgment request in favor of a full hearing on the merits; and this discretion exists even though the technical requirements for the entry of such a judgment have been met." For somewhat similar discussion, see Smith v. Blackledge, 451 F.2d 1201, 1202 n.1 (4th Cir. 1971), and Pierce v. Ford Motor Co., 190 F.2d 910, 915 (4th Cir.), cert. denied, 342 U.S. 887 (1951).

   Credibility is not an issue to be determined on summary judgment. In granting or denying a motion for summary judgment, a judge makes no findings of fact. Such is not the purpose of summary judgment. It is sharply contrasted with a motion for a directed verdict[***13] or a motion for judgment n.o.v., both of which test the legal sufficiency of the evidence adduced. See the discussion and cases cited by Judge Orth for the Court in Impala Platinum v. Impala Sales, 283 Md. 296, 326, 389 A.2d 887 (1978).

   The second point which is important to the case of each appellee is that a plaintiff is bound by the uncontradicted evidence he adduces, even out of the mouth of an adversary.  [*248] We said in Lusby v. First Nat'l Bank, 263 Md. 492, 283 A.2d 570 (1971):

   Where it is manifest to the court upon the plaintiff's own showing in the uncontradicted evidence in the case that there is no rational ground upon which a verdict can be based for the plaintiff, it becomes the duty of the court to direct a verdict for the defendant, or, as in this case, grant a motion for a judgment n.o.v. in favor of the defendant.  Stoskin v. Prensky, 256 Md. 707, 716, 262 A.2d 48 (1970); Schaub v. Community Cab, Inc., 198 Md. 216, 223, 81 A.2d 597 (1951); and Eisenhower v. Balto. Transit Co., 190 Md. 528, 532, 59 A.2d 313 (1948). [Id. at 506.]
 
To similar effect see Wesko, 272 Md. at 199; McCarty v. City of Baltimore, 265 [***14]Md. 423, 428, 290 A.2d 521 (1972); Williams v. Wheeler, 252 Md. 75, 79, 249 A.2d 104 (1969); and Trusty v. Wooden, 251 Md. 294, 297-98, 247 A.2d 382 (1968). Relative to an adverse witness called by a party, Judge Prescott said for the Court in Proctor Electric Co. v. Zink, 217 Md. 22, 141 A.2d 721 (1958):

   It is unquestionably the general rule that a person who produces a witness vouches for him as being worthy of credit, and no direct attack upon his veracity should be made by the party who produces him in the absence of surprise, hostility or deceit.  Murphy v. State, 120 Md. 229 [, 87 A. 811 (1913)]; 3 Jones, Evidence Civil Cases, (4th Ed.) secs. 853, 854.  In Maryland, we have a statute, Article 35, section 9, Code (1957), which relates to adverse parties.  It provides that they may be called by the opposite party and interrogated by leading questions, contradicted and impeached.  Under this statute, when adverse parties have been called and their testimony not contradicted, this Court has held that the uncontradicted testimony was binding on the party who had called the opposite party.  Morris v. Hazlehurst, 30 Md. 362 [(1869)]; Mason v. [*249]  [***15] Poulson, 43 Md. 161 [(1875)]; Harrison v. Harrison, 117 Md. 607 [, 84 A. 57 (1912)]; Murphy v. Stubblefield, 133 Md. 23 [, 104 A. 259 (1918)]; Maszczenski v. Myers, 212 Md. 346 [, 129 A.2d 109 (1957)]. We think this is the settled law of Maryland today, and we have no desire to recede from any of these decisions.  [Id. at 32 (emphasis in original).]
 
See also Larsen v. Romeo, 254 Md. 220, 225, 255 A.2d 387 (1969); Ackerhalt v. Hanline Brothers, 253 Md. 13, 22, 252 A.2d 1 (1969); Vokroy, Adm'r v. Johnson, 233 Md. 269, 272, [**569] 196 A.2d 451 (1964), and the Maryland cases cited in each.

   iii Derby

   Derby interposed a plea based upon Art. 101, § 62.  It provides:

   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[***16] 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, except that the amount of compensation shall be calculated with reference to the earnings of the workman under the employer by whom he is immediately employed.

   [*250] Where the principal contractor is liable to pay compensation under this section, he shall be entitled to indemnity from any employer, who would have been liable to pay compensation to the employee independently of this section, and shall have a cause of action therefor against such employer.

   Nothing in this section shall be construed as preventing a workman from recovering compensation under this article from the subcontractor instead of from the contractor.

   Whenever an employee of a subcontractor files a claim under this article against the principal contractor, the principal contractor shall have the right to join the subcontractor or any intermediate contractors as defendant or codefendant[***17] in the case.

    The Workmen's Compensation Act as enacted by Chapter 800 of the Acts of 1914 was found to contain a major loophole in that an employer, by entering into a subcontract for the performance of parts of an entire project, could escape liability under the act.  Accordingly, the numerous revisions embodied in Chapter 597 of the Acts of 1916 included a new section which became the present § 62.

   If Derby in this case is "a principal contractor" who has "undertake[n] to execute any work which is part of his trade, business or occupation," a part of which he has contracted with some "other person as subcontractor" to perform, then under §§ 62 and 15 of the Workmen's Compensation Act the exclusive remedy of Coffey would be under that Act.  Roland v. Lloyd E. Mitchell, Inc., 221 Md. 11, 13, 155 A.2d 691 (1959), and cases there cited.  On the other hand, if Derby is not a statutory employer of Coffey, then Coffey may maintain the tort action here for alleged negligence in accordance with § 58 of the Workmen's Compensation Act.

   In Honaker II we examined the background of this statute.  285 Md. at 222-25. We pointed out that in Honaker v. W. C. & A. N. Miller Dev. [***18]  Co., 278 Md. 453, 365 A.2d 287 (1976) (Honaker I), Judge Orth discussed for the Court a number [*251] of our prior cases including State v. Bennett Bldg. Co., 154 Md. 159, 140 A. 52 (1928). The Court said in Honaker I:

   It is manifest on the face of § 62 of Art. 101, that in order to invoke its provisions there must be:
 
(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 or under the subcontractor of the whole or any part of such work.  [Id. 278 Md. at 459-60.]
 
The Court quoted this in Honaker II.  285 Md. at 225. We pointed out in Honaker I and Honaker II that the term [**570] "principal contractor" is not synonomous with "general contractor." Honaker I, 278 Md. at 460 n.4, and Honaker II, 285 Md. at 225.

   The parties are in agreement in this case that Derby meets criteria (1), (2), and (4).  The dispute is whether the work for which Derby contracted is part of its "trade, business or occupation. . . ."

   At trial Derby's evidence consisted[***19] solely of placing before the court certain drawings and the like.  It presented no live testimony.

   Because the evidence adduced by Coffey at trial differed from that which was before the Court in Honaker II on the motion for summary judgment, we shall first examine that which was before the Court then.  On summary judgment the affidavit and deposition of Frederick B. Maples were considered.  By the time of trial he had retired, but for the preceding thirty years he was employed by Derby, the last fifteen years of which (including the time of the incident) he was Derby's executive vice-president.  His deposition and his affidavit indicated that the men who did the actual steel erection were employed by Prosser, the erection company.  He said it was "usual practice to buy steel from the fabricator erected," although he claimed his men had the capability of [*252]erecting it and said that he had subcontracted the erection here to Prosser.  He did state in his affidavit, "[I]t is a common practice for steel fabricators in the Baltimore area to enter into contracts for both the supply and erection of steel. Such practice is customary in the industry, and contracting for both[***20] supply and erection of structural steel is an essential part of Derby's business." Coffey countered with an affidavit from the president of the general contractor, The Lacchi Construction Company.  It was to the effect that Derby at the time of the incident was "engaged in steel fabrication," that it "held itself out as a steel fabricator; that as far as local steel fabricators are concerned, it is the experience of The Lacchi Construction Company that it is highly unusual for steel fabricators to erect steel with their own manpower but rather they subcontract the erection." The pages from the classified section of the Baltimore City telephone directory for the years 1971 to 1976, inclusive, reflecting that Derby advertised itself as a steel contractor and not as an erector, were also before the trial judge.  The aforegoing is all that was before him.  It supplied the basis for our saying, "The sum total of that which was before the trial judge on the motion for summary judgment is susceptible of an inference that Derby is no longer engaged in 'the trade, business or occupation' of steel erection." 285 Md. at 232.

   With that reference we now turn to an examination of the evidence adduced [***21]by Coffey at this trial.  It will be seen that not only was it in a different posture, but there was more to support Derby's position than when the matter was before the court on summary judgment.

   The testimony of Mr. Maples is of critical importance here.  He said that although at one time Derby had done erection work with its own employees, it no longer did so.  It continued, however, to "bid structural steel furnished and erected." In response to a question as to "what the majority of . . . the work of Derby Steel was back in 1972" he replied, "We furnished and fabricated, delivered, and generally erected structural steel for the industry." He said that this "included entering into contracts to both furnish and erect the steel." In this instance Derby prepared drawings for [*253] Prosser, the steel erector, to tell it where to put each piece.  Maples indicated that in this transaction Derby made a profit on the work it subcontracted to Prosser. He said that Derby was responsible to the general contractor to see that the job progressed in accordance with Derby's subcontract from the general contractor. The testimony relative to the drawings and the profit made was not before [***22]the court on summary judgment. Moreover, the Maples testimony adduced by Coffey was more explicit as to Derby's bidding structural steel furnished and erected and generally erecting structural steel for the industry than on the motion for summary judgment.

   [**571] Paul J. Prosser, Jr., of Prosser was another witness called by Coffey.  He testified that at the relevant time Derby habitually entered into contracts with general contractors both to furnish and erect steel.

   Franklin H. Smith, superintendent for Lacchi, the general contractor for the building, was yet another witness produced by Coffey.  Although he said that he had never known of Derby's ever doing any erection by means of its own employees, he also said that at the time of the incident in question Derby was generally in the business of entering into contracts with general contractors and others both to fabricate and erect steel on jobs.  He further testified, "It is general knowledge around that most fabricators when they write a contract, not all but most, at that time would take a contract with a general contractor, fabricate and erect it," letting a sub-contract for the actual erection.

   By way of summary, the[***23] testimony of Maples was not precisely that which was before the trial court on the motion for summary judgment. Nothing from either Prosser or Smith was before the Court on summary judgment. It will be noted that their testimony served to reinforce the contention that erection of steel was a part of Derby's business although such was not done by Derby's erecting steel with its own employees.  Also, a statement was extracted from Maples to the effect that Derby did not advertise in the classified section of the telephone book as a steel erector.  Such is in no [*254] way inconsistent with Derby's contention that its business includes the erecting of steel through subcontractors. No one has contradicted the testimony of Messrs. Maples, Prosser, and Smith.  Thus, it was uncontradicted that the work in question was a part of Derby's "trade, business or occupation. . . ." A general contractor who bids a job and then subcontracts each of the various components of that job to others is in the business of being a general contractor for that type of construction notwithstanding the fact that no part of the actual work is performed by his own direct employees.  It simply is not necessary[***24] that work be done by one's employees for one to be in a given business.

   Coffey seems to be of the view that for one to be a "principal" contractor it is necessary for one to be a general contractor. That simply does not follow. That is like the argument we rejected in Honaker II that because Miller did not have employees who put roofs on houses that the placing of such a roof could not be part of its "trade, business or occupation" of building and selling homes. We said there was no question but that Miller was in the business of building and selling homes, that from time immemorial shelter from the elements has been regarded as one of the necessities of life, and that any structure with four walls must have a roof on it before it may be considered a house; thus a contention that the installation of a roof is not a part of the "trade, business or occupation" of building homes was without merit.  285 Md. at 229.

   This case was before us in Honaker II on a motion for summary judgment with our then considering whether the pleadings, depositions, and admissions on file, together with the affidavits, if any, showed that there was no genuine dispute as to any material fact and[***25] that the moving party was entitled to a judgment as a matter of law.  As we have pointed out, the function of a summary judgment proceeding is not to try the case nor to attempt to resolve factual issues, but to determine whether there is a dispute as to a material fact sufficient to provide an issue to be tried.  Dietz v. Moore, 277 Md. 1, 4-5, 351 A.2d 428 (1976), and cases there cited.  On the motion for summary judgment, all of the depositions, [*255] pleadings, affidavits, admissions, and the like are considered together without reference to their origin and are examined to determine whether or not there is a potential triable issue of fact for submission to the jury.

   The case has now been tried.  At trial, more evidence was adduced in support of Derby's position which was not before the Court on the motion for summary judgment, as we have already pointed out.  [**572] Moreover, the matter came before the Court in a somewhat different posture.  Coffey was not bound in Honaker II by what he elicited from others by way of deposition nor was he bound by any affidavits submitted on behalf of his opponent.  Coffey is bound by the testimony adduced by him at trial, [***26] which clearly establishes that the work here was a part of the "trade, business or occupation" of Derby, such testimony having been neither rebutted, contradicted, nor discredited.  In Proctor Electric, 217 Md. 22 at 33, Judge Prescott referred for the Court to the fact that "[t]he testimony of a witness may be contradicted or discredited by circumstances as well as by statements of other witnesses, and a jury is not bound to accept a witness' testimony as true if it contains improbabilities, or if there are reasonable grounds for concluding that it is erroneous." This language was quoted with approval in Williams, 252 Md. at 80, and in Wood v. Johnson, 242 Md. 446, 453, 219 A.2d 231 (1966). None of these factual situations are present here.  The situation before us in the present case would be different if the testimony in regard to Derby's business were produced as a part of Derby's case.  There was, however, no evidence from Derby on that issue. When Coffey produced witnesses to testify in regard to Derby's business, we must view the collection of evidence in a different light inasmuch as it can go no further in Coffey's favor than that properly inferable from[***27] the evidence Coffey produced.  In the present case, it is Coffey's evidence, not Derby's, which is before us in regard to Derby's business so that the only permissible factual finding under such evidence is that Derby is engaged, among other things, in the "trade, business or occupation" of steel erection. No evidence was produced which would justify an [*256] inference to the contrary.  Hence, the trial judge properly entered judgment n.o.v. in favor of Derby against Coffey.

   iv Schafer

   The trial judge granted judgment n.o.v. as to Schafer on the grounds of contributory negligence. Schafer argues to us not only the issue of contributory negligence, but that Schafer owed no duty to Coffey and that there was no legally sufficient evidence of a breach of any duty that might have been owed by Schafer to Coffey.  Under Rule 885 and our cases, these points having been argued to and considered by the trial court, we are permitted to base our decision on them rather than on the issue of contributory negligence. See, e.g., Offutt v. Montgomery Co. Bd. of Ed., 285 Md. 557, 563-64, 404 A.2d 281 (1979); Robeson v. State, 285 Md. 498, 501-04, 403 A.2d 1221 (1979), cert. [***28] denied, 444 U.S. 1021 (1980); State v. Raithel, 285 Md. 478, 482, 404 A.2d 264 (1979); Mont. Co. v. Md. Soft Drink Ass'n, 281 Md. 116, 122, 377 A.2d 486 (1977); Panamerican Co. v. Broun, 238 Md. 438, 447, 209 A.2d 575 (1965); and Kent v. Mer.-Safe Dep. & Tr. Co., 225 Md. 590, 593, 171 A.2d 723 (1961).

   The full allegation against Schafer was that it "was engaged and undertook to perform inspection and testing work which included the responsibility to inspect and test the design and manufacture of all steel beams used in said construction by structural iron workers such as . . . Coffey [ ] so that said steel beams would be free from defects and irregularities that made their use unsafe and unfit for incorporation into the building under construction"; that Coffey's "fall was caused by the carelessness, recklessness and negligence and wanton disregard of the rights of [Coffey] by . . . Schafer [ ] through its agents, servants and/or employees" in a number of regards including "intentionally, and with malicious disregard for the rights of [Coffey], permitting to be used a welded clip and seat type connection, as a temporary fastening device, in construction involving[***29] the use of structural [*257] steel, in violation of Article 63 [sic] n[1], Section 54D of the . . . Code of [**573] Maryland (1957)," and "[i]n negligently permitting to be attached said 'Saxe Clips' to the steel beams by 'tac welding', contrary to standards in the trade." It was alleged that Schafer failed "to exercise the customary and usual skill, knowledge and expertise of a reasonably competent testing laboratory, in connection with the inspection of steel beams supplied to construction site"; "to make known to [Coffey] hidden dangers, of which [Schafer] was aware or had reason to be aware, with regard to the design and manufacture of steel beams used by [Coffey]"; "to furnish, or cause to be furnished, steel beams" and "component parts of steel beams of suitable grade, size and quality, free from defects and irregularities, which made their use unsafe and unfit for incorporation into the building under construction"; and to "properly inspect the design and manufacture of steel beams, to insure that each beam was being designed and manufactured by such methods and with such materials, as to result in a safe beam, suitable for the use to which it was intended[***30] . . . ."

n1 The intended reference apparently is to Code (1957, 1971 Repl. Vol., 1971 Cum. Supp.) Art. 43, § 54D enacted by Chapter 621 of the Acts 1971.  Chapter 622 enacted § 54E on a somewhat similar subject.  Section 2 of that act provided that its provisions "sh[ould] not be construed to apply to any activities in connection with any contracts made prior to September 1, 1971." The contract here in question was actually subsequent to September 1, 1971, although it apparently was the belief of some of the parties concerned with the Saxe Clips that because the plans and specifications were prepared prior to September 1, 1971, the statute was not applicable.  We are not obliged to pass upon that question.

   Schafer was invited by the architect to submit a proposal for "the inspection and testing of the shop fabricated and erected structural steel in accordance with AISC" (American Institute of Steel Construction).  Accordingly, it submitted a proposal "[t]o furnish all necessary labor, equipment, services, [***31]and reports required to perform the shop and field inspection of the approximately 657 tons of structural steel," the services to "include performing all inspections in accordance with the approved specifications, the AISC Code of Standard Practice, and the latest applicable codes and specifications." This was accepted by the architect "on [its] [*258] assumption" that two specified conditions would be met, namely:
 
1. The inspection of shop fabricated structural steel members will be in accordance with approved shop drawings and specifications, including checking for grade of steel, size of sections, lengths, dimensions and character of workmanship, checking connections, bolted or welded in accordance with AISC or AWS codes.
 
2. The field inspection of structural steel will include the examination of all sections checking for fit and alignment, plumb of columns, installation of high strength bolts as required and torquing of same to specification requirements.  All field welded joints will be examined visually and gauged for size quality and adherence to AWS standards.
 
It will be noted that none of this specified inspection for safety or the prescribing of[***32] any safety measures.

   Lawrence Iacarino, who did the actual inspection for Schafer, was one of the witnesses called by Coffey.  He said, "It's not the Saxe Clips that I was supposed to be doing.  It was the procedures of the shop that I'm to inspect and see that they live up to."

   George Evans, the structural engineer for the project, was another witness called by Coffey.  He was asked whether it was contemplated that the inspections by Schafer "would be actually on the job or in the shop eight hours a day checking each item." He replied:

   A No, sir.  What we expected of the testing agency was that they would establish a level of quality of workmanship so that welders were qualified, that welders have a very definite procedure, which they go through to be qualified as a welder; and what they do, is they, an inspection agency maintains a quality of workmanship in the shop rather than inspecting every piece.  In other [*259] words, what -- if you don't have full-time inspection so that the inspector sees it as it comes off the production line it's impossible to inspect every piece, just physically impossible.  [**574] And what we're after, and what we're buying in the allowance[***33] here is quality control.  What we're after is -- is the quality of workmanship in that shop, such that it can be an acceptable end product can be produced.
 
He indicated that this was "the usual and customary practice of th[o]se companies that make inspections to do what [he had] just testified to."

   The accident in this case took place when an attempt was being made to connect a beam to a column.  A "Saxe Clip" connector broke off, causing the beam to title and throwing Coffey to the ground.  Coffey asserts, "The proximate cause of [his] fall was the fact that the Saxe Clip was tack-welded to the vertical column, contrary to the contractual obligations of . . . Derby . . . and established safety standards."

   We had occasion in Krieger v. J. E. Greiner Co., 282 Md. 50, 382 A.2d 1069 (1978), to examine the law relative to contracts of supervising engineers and their liability to an employee injured on the job.  We pointed out:

   There is a decided split of authority as to whether an architect or engineer responsible for day to day supervision of a construction project is liable to a workman for unsafe working conditions or liable to others for yet other shortcomings[***34] of a contractor. . . . Although there is no clear majority view, it would appear that the weight of authority is on the side of nonliability.  [Id. at 58-59 (citations omitted).]
 
We said for the engineer to be liable to an injured workman it was necessary to find a breach of a duty by the engineer to the workman and that such duty must arise either under a contractual provision placing that responsibility on the engineer or it had to be found that the engineer had assumed responsibility for safety.  There is no contention in this case that Schafer has assumed any responsibility for safety.

   [*260] Schafer's contract was one to guarantee a final work product, not one to assure safety.  The sum total of the evidence adduced by Coffey in this case fails to show any breach of duty on the part of Schafer to Coffey or to anyone else.  It follows, therefore, that the trial judge was correct in entering a judgment n.o.v. in favor of Schafer against Coffey et al.

   Judgment affirmed; appellant to pay the costs. 

JACK JAMES SMITH v. STATE OF MARYLAND 
No. 95, September Term, 1980
 
Court of Appeals of Maryland
 
291 Md. 125; 433 A.2d 1143; 1981 Md. LEXIS 252

 August  26, 1981, Decided

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals.  Circuit Court for  Anne Arundel  County, Thieme, J.

DISPOSITION: Judgment affirmed.  Appellant to pay the costs.

CORE TERMS:  indigent, reporter, omission, effective, verbatim, new trial, cross-examination, reversal, missing, fault, duty, recollection, prosecutor, court reporter, accommodation, stenographic, independent recollection, inconsequential, reconstruct, stenographer, preserved, apartment, gun, evidence presented, trial transcript, statutory scheme, trained, attest, paying, died

COUNSEL: George E. Burns, Jr., Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

   F. Ford Loker, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellee.

JUDGES: Murphy, C. J., and Smith, Digges, Eldridge, Cole, Davidson and Rodowsky, JJ.  Cole, J., delivered the opinion of the Court.

OPINIONBY: COLE

OPINION: [*126] [**1144] We granted review in this case to decide whether appellant was effectively denied his right of appeal because portions of two[***3] state's witnesses' testimony were not preserved due to technical problems with the trial court's tape recording system.  The appellant, Jack James Smith, was convicted of first degree murder and two related handgun offenses in the Circuit Court for Anne Arundel County.  The Court of Special Appeals thereafter affirmed his conviction in an unreported per curiam opinion, Jack James Smith v. State of Maryland, No. 1603, September Term, 1979, filed July 18, 1980, which held the existent record sufficient, under the facts of the case, to permit adequate appellate review.  For the reasons set forth herein, we affirm.

    The parties have submitted an agreed statement of facts, from which we quote: 

   The body of Ralph C. Verrette, a friend of Appellant, was found on a private road with two gunshot wounds to the head.  In the course of the police investigation Appellant consented to searches of his car and his apartment. Blood stains were found in his automobile and on his clothes.  There were no witnesses to the incident and the gun was never recovered.

   While testifying at trial and in a statement to police, Appellant revealed that on the evening of Verrette's death he was looking[***4] for his friend to tell him that Appellant's landlord was forbidding Verrette to share Appellant's apartment. The two were inebriated when they met.  They began driving [*127] around in Appellant's car and ended upon the private road where Verrette surprised Appellant by removing a gun from his waistband and waving it about.  Being familiar with Verrette's erratic and often violent behavior, Appellant tried to take the gun away and in the course of the struggle Verrette was shot.

   During presentation of the State's case the tape machine used to record the trial malfunctioned on two occasions.  As a result there is no record of some of the direct examination and a portion of the cross-examination of Tony Guinta, who was Appellant's landlord and a former employer of Verrette.  Also missing are the entire direct examination and a portion of the cross-examination of Dennis Fratantuono, the owner of a bar frequented by both men.  Fratantuono had seen and spoken with Appellant on the day of Verrette's death.  What is known of their testimony comes from the portions that were transcribed and affidavits of the prosecutor and the trial judge.  Appellant's trial counsel had no independent[***5] recollection of their testimony.  No one offered any recollection of objections and rulings made.

   Guinta testified as to his instructions to Appellant forbidding him to share the apartment with Verrette.  Appellant told him he would find Verrette and inform him accordingly.  Based on the defense objection that the State was attempting to impeach its own witness, the court would not allow the State to elicit a prior inconsistent statement uttered by Guinta.  The record of how defense counsel was able to use this statement does not exist.  Guinta also testified as to three threatening statements Appellant made on the day of Verrette's death.  Appellant had no recollection of these threats.  On cross-examination Guinta was discussing Verrette's frequently strange and violent conduct when the tape machine ceased operating again.

   [*128] It resumed operation at the close of Fratantuono's cross-examination. On re-direct he indicated that he believed Appellant was going to kill Verrette.  He also saw Appellant remove a lug wrench from his car. When Appellant testified, he explained that the wrench was for his own protection.  Fratantuono had told [**1145] him that Verrette might[***6] be in some woods drinking but that Appellant should be careful about going into them to find Verrette since people had been mugged there.  Appellant did not deny saying he would kill Verrette but indicated that if he said it, it was just barroom talk typical of someone who was intoxicated.

   In the closing arguments presented by the prosecution and the defense, both attorneys commented upon the testimony of Tony Guinta and Dennis Fratantuono. Each mentioned portions of the testimony of those witnesses concerning the threats by Appellant against the victim's life, uttered on the day of the killing, and prior instances of strange and violent behavior of the victim.

   At the outset we emphasize that appellant has never made application to the trial judge to correct the record under Maryland Rules 826 (c) or 1026 (c), which are substantially similar.  Rule 826 (c) provides:

   It shall not be necessary for the record on appeal to be approved by the lower court except as provided in sections c2 or g of this Rule, but if any difference arises as to whether the record truly discloses what occurred in the lower court, the difference shall be submitted to and settled by the lower court and[***7] the record made to conform to the truth.
 
Our inquiry focuses upon whether the result in the instant case should parallel that of Kennedy v. State, 289 Md. 54, 421 A.2d 1376 (1980). In Kennedy we held, inter alia, that where a court reporter had destroyed stenographic notes of the hearing at which the defendant waived the right to a jury trial, but where no attempt to reconstruct the record was [*129] made by his attorney, either by proffer or by application to the trial judge per Rule 826 (c) or 1026(c), a reversal was not warranted on the ground that there may have been a violation of Rule 735 (d) (requiring that it be determined on the record that a defendant's waiver of jury trial is knowingly and intelligently made).  Cf. In re: Dewayne H. 290 Md. 401, 430 A.2d 76 (1981); Michigan Nat. Bank v. Racine, 234 Md. 250, 198 A.2d 898 (1964). The instant case, however, differs in several respects.

   First, we are not confronted here with pre-trial proceedings governed by Rule 735 (d) but with portions of testimony not recorded at trial as required by Rule 1224.  This Rule, which became effective July 1, 1974, requires that a verbatim recordation be made, [***8] "[i]n criminal cases, other than appeals to the District Court, [of] the entire trial on the merits held in open court, including opening statements and closing arguments of counsel." Md. Rule 1224 (d) (1) (a).  Secondly, in the instant case, appellant's argument is not based upon the assertion of specific error; rather he argues broadly that the unavailability of a complete transcript of proceedings, coupled with the assertedly incomplete memory of his trial counsel, in and of themselves are such as to deprive appellant of meaningful appellate review.  Cf. Michigan Nat. Bank v. Racine, supra.

   Thirdly, we must consider the effect of certain affidavits prepared by the prosecutor, the trial judge and the defendant's trial counsel, a public defender, all of which were made part of the record on appeal to the Court of Special Appeals pursuant to uncontested motions made under Rule 1027 (d).  Two affidavits, one for each witness, were prepared by the State prosecutor at the request of the State and were replete with testimonial detail, but made no mention of any objections or rulings which may or may not have been made.  The affidavit filed by the trial judge, also at the State's[***9] request, was consistent with those signed by the prosecutor and consisted of the following statement:

   At the request of the State, I have reviewed my notes which I took during the trial of State v. Jack Smith.

   [*130] Tony Guinta, a witness called by the State, testified that the accused was looking for Verrette, the victim, and that the accused would ". . . blow him away."

   Dennis Fratantuono, a witness called by the State, testified he heard the accused say that he was going to kill Verrette.

   [**1146] I do not recall if objections were made by the defense to the admissibility of these statements.  However, the presence of these statements in my notes indicates that any objections would have been overruled.
 
The affidavit prepared by the public defender neither substantiated nor conflicted with the information contained in the others, as it stated that he had "no independent recollection" of what should have been contained in the missing portions of the transcript.

   We turn first to the impact of Rule 1224.  Although it was included in our Rules without an official comment or committee note, we find little difficulty in enunciating what is obviously the purpose[***10] of provisions such as that contained in Rule 1224 (d) (1) (a): to preserve a correct and precise account of the evidence and rulings at trial, and to assure the ability of courts and of counsel to perform their duties efficiently and completely. Instructive are the findings of United States v. Taylor, 303 F.2d 165, 169 (4th Cir. 1962), with respect to a similar federal rule contained in the Court Reporter Act:

   The provisions of [28 U.S.C.] § 753 (b) are designed to preserve a correct and authentic record of criminal proceedings free from the infirmities of human error and they provide a safeguard to which not only the court but also the defendant is entitled in the preservation of his rights.  See Stephens v. United States, 5 Cir., 289 F.2d 308.

   Much of the federal law dealing with the availability of transcripts has arisen in cases involving the rights of indigent defendants.  E.g., Mayer v. Chicago, 404 U.S. 189, 92 [*131] S. Ct. 410, 30 L. Ed. 2d 372 (1971); Hardy v. United States, 375 U.S. 277, 84 S. Ct. 424, 11 L. Ed. 2d 331 (1964); Norvell v. Illinois, 373 U.S. 420, 83 S. Ct. 1366, 10 L. Ed. 2d 456 (1963); Draper v. Washington, 372 U.S. 487, [***11] 83 S. Ct. 774, 9 L. Ed. 2d 889 (1963); Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (1956). The decision in Hardy v. United States, supra, differed significantly from that of earlier cases, however, because of the Court's focus upon the Court Reporter Act.  In Hardy it was held, in an opinion authored by Justice Douglas, that an indigent who seeks to appeal and is represented by a different attorney from the one who defended him at trial must be given a complete trial transcript at government expense.  The Court explained:

   We deal with the federal system where the appeal is a matter of right (Coppedge v. United States, [369 U.S. 438,] 441; 28 U.S.C. §§ 1291, 1294), and where the appellant is entitled to "the aid of counsel unless he insists on being his own." Johnson v. United States, 352 U.S. 565, 566. . . . Further, a transcript is available for appeal purposes, Congress having provided in the Court Reporter Act, 28 U.S.C. § 753 (b), that a transcript "by shorthand or by mechanical means" of "all proceedings in criminal cases had in open court" shall be made. . .

    . . . .

   A court-appointed counsel who represents the indigent on appeal[***12] gets at public expense, as a minimum, the transcript which is relevant to the points of error assigned.  Coppedge v. United States, supra, at 446; Ingram v. United States, supra.  But when, as here, new counsel represents the indigent on appeal, how can he faithfully discharge the obligation which the court has placed on him unless he can read the entire transcript?  . . . The right to notice "plain errors or defects" is illusory if no transcript is available at least to one whose lawyer on appeal enters the case after the trial is ended.

   [*132] The duty of counsel on appeal, as we noted in Ellis v. United States, 356 U.S. 674, 675, is not to serve as amicus to the Court of Appeals, but as advocate for the appellant.  . . .

   We deal here only with the statutory scheme and do not reach a consideration of constitutional requirements.  We see [**1147] no escape from the conclusion that either where the requirements of a non-frivolous appeal prescribed by Coppedge v. United States, supra, are met, or where such a showing is sought to be made, and where counsel on appeal was not the counsel at the trial, the requirements placed on him by Ellis v. United States, [***13] supra, will often make it seem necessary to him to obtain an entire transcript.

   We conclude that this counsel's duty cannot be discharged unless he has a transcript of the testimony and evidence presented by the defendant and also the court's charge to the jury, as well as the testimony and evidence presented by the prosecution.  [375 U.S. at 278-82 (footnotes omitted)].

   Although the majority stated that its focus was upon the statutory scheme, an important step in analysis -- calling attention to appointed counsel's duty as an advocate -- seemed constitutionally based.  P. Kurland, The Supreme Court -- 1963 Term, 78 Harv. L. Rev. 143, 265 (1964).  Nevertheless, the Supreme Court has consistently held that the states are not required to furnish complete transcripts where there are alternate means of review just as effective as those available to paying defendants.  E.g. Draper v. Washington, supra; Griffin v. Illinois, supra. However, as pointed out by Justice Goldberg's concurring opinion in Hardy joined by Chief Justice Warren and Justices Brennan and Stewart:
 
As any effective appellate advocate will attest, the most basic and fundamental tool of his[***14] profession is the complete trial transcript, through which his trained fingers may leaf and his trained eyes may [*133] roam in search of error, or even a basis upon which to urge a change in an established and hitherto accepted principle of law.  Anything short of a complete transcript is incompatible with effective appellate advocacy.  [375 U.S. at 288 (footnote omitted)].

   It is difficult to challenge the logic of such analysis.  But does it mean that courts must grant defendants a new trial in every case in which some portion of trial testimony cannot be produced for appellate counsel's review? We think not.  It is one thing to discriminate against the indigent by not providing the tools available to paying defendants or to thwart basic notions of fairness by failing to require the presence of a court reporter or stenographer per Rule 1224.  It is quite another to provide the means to preserve the record of trial to all defendants fairly and equally and then to have those means prove defective through no fault of the prosecution.  We do not believe, therefore, that every inadvertent omission in the record would call for reversal or would justify the time and expense[***15] incident to a new trial.

   It would wreak havoc on the administration of justice to require reversal in each 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.  Punctuation, for example, is a matter of judgment.  Whenever two or more persons speak simultaneously, it is difficult to assign priority of statement or to reproduce the exact statements of each.  See Report, Court Reporting Services in Maryland 83 (National Center for State Courts, March 1976).  Electronic recording or stenographic equipment will occasionally fail. Court reporters will occasionally become ill or die in office, or will simply misplace their notes.  Sometimes the errors or omissions will be insignificant, presenting a situation quite different from that in which most or all of the testimony at trial cannot be reviewed verbatim on appeal.

   Understandably, therefore, it has been necessary for [*134] courts to proceed on a case-by-case basis.  In all of such cases, however, where the blame rests not with the[***16] prosecution, the situation is more suitably aligned with cases not falling under the rule announced in Hardy.  In Mayer v. Chicago, supra, 404 U.S. at 195, for example, the Supreme Court held that where a defendant's "grounds of appeal . . . [**1148] make out a colorable need for a complete transcript, the burden is on the State to show that only a portion of the transcript or an 'alternative' will suffice for an effective appeal on those grounds." The Court ruled that while the State must afford the indigent "a record of sufficient completeness," this "does not translate automatically into a complete verbatim transcript." 404 U.S. at 194. The Court again stood behind the views it had espoused in Griffin.  A State may find other means to afford adequate and effective review to indigent defendants.  The preparation of an agreed statement of facts, as suggested in Draper, was cited as a substitute method.

   Ordinarily, where there is some defect in the transcript not attributable to discrimination or inherent unfairness by the prosecution, an appellant has traditionally carried a heavy burden on appeal.  In United States v. Di Canio, 245 F.2d 713 (2d Cir.), [***17] cert. denied 355 U.S. 874, 78 S. Ct. 126, 2 L. Ed. 2d 79 (1957), it was held that where the court stenographer died before transcribing the minutes of trial and the transcript was prepared by another court reporter and contained 32 omissions where the notes had not been sufficiently legible, the omissions were trivial in character and would not require reversal of the defendant's conviction and a grant of new trial. The Court reasoned:

   There is no rule of thumb to govern the action of this court on an appeal from a criminal conviction in those instances where the court stenographer who reported the trial has died and another reporter has prepared the transcript from stenographic notes.  The absence of a completely accurate transcript does not, without more, invalidate a conviction.  A new trial will be ordered only if necessary to the protection of a party's [*135] rights.  Hence, the defects must be of a prejudicial character, not merely inconsequential inaccuracies or omissions. Nor do we say any distinction is necessarily to be drawn between civil and criminal appeals.  Each case must stand on its own bottom; and the outcome will depend upon the circumstances of the[***18] particular case. See Annotation, 19 A.L.R.2d 1098. [245 F.2d at 715].
 
Cf. United States v. Weiner, 578 F.2d 757, 788-89 (9th Cir. 1978); United States v. Piascik, 559 F.2d 545, 547-48 (9th Cir. 1977) (discussing impact of Court Reporter Act).

   In Norvell v. Illinois, supra, the Supreme Court addressed "the narrow question -- whether a State may avoid the obligation of Griffin v. Illinois, where, without fault, no transcript can be made available, the indigent having had a lawyer at the trial and no remedy having been sought at the time." Norvell v. Illinois, supra, 373 U.S. at 422. It was reasoned:

   When, through no fault of the State, transcripts of criminal trials are no longer available because of the death of the court reporter, some practical accommodation must be made.  We repeat what was said in Metropolis Theatre Co. v. Chicago, 288 U.S. 61, 69-70:

   "The problems of government are practical ones and may justify, if they do not require, rough accommodations -- illogical, it may be, and unscientific.  . . . What is best is not always discernible; the wisdom of any choice may be disputed or condemned."

   The "rough accommodations" made by government[***19] do not violate the Equal Protection Clause of the Fourteenth Amendment unless the lines drawn are "hostile or invidious." Welch v. Henry, 305 U.S. 134, 144. We can make no such condemnation here.  For, where transcripts are no longer available, Illinois may rest on the presumption that he who [*136] had a lawyer at the trial had one who could protect his rights on appeal.  [373 U.S. at 424].

   State cases as well have held that the inability to prepare a complete verbatim transcript, in and of itself, does not necessarily present a sufficient ground for reversal. E.g., People v. Scott, 23 Cal. App. 3d 80, 100 Cal. Rptr. 34 (1972); People v. Horton, [**1149] 95 Mich. App. 561, 291 N.W.2d 121 (1980); People v. Robinson, 33 Mich. App. 304, 189 N.W.2d 777 (1971); Reyes v. Delgado, 81 P.R.R. 906 (1960); Williams v. State, 427 S.W.2d 868 (Tex. Crim. App. 1967), cert. denied, 391 U.S. 926, 88 S. Ct. 1826, 20 L. Ed. 2d 665 (1968); State v. Bolling, 246 S.E.2d 631 (W. Va. 1978). In general, states have placed the onus upon the appellant to show that the omissions are not merely inconsequential, but are in some manner relevant on appeal.  E.g., [***20] Osborne v. State, 290 So.2d 93 (Fla. App. 1974); State v. Wright, 97 Idaho 229, 542 P.2d 63 (1975); People v. Robinson, supra; State v. Bolling, supra.

   Sometimes substitute statements or affidavits can be prepared to replace or to supplement the record, thus providing an appellant with adequate material for the court to review.  E.g., People v. Scott, supra; Commonwealth v. Hughes, 480 Pa. 311, 389 A.2d 1081 (1978); State v. Goodbier, 367 So.2d 356 (La. 1979); Williams v. State, supra. See People v. Horton, supra; People v. Drew, 26 Mich. App. 337, 182 N.W.2d 566 (1970); State v. Neely, 21 N.C. App. 439, 204 S.E.2d 531 (1974). In states that have some established procedure for correcting the record, most have required the appellant and the appellee to make diligent inquiry and effort to put together an equivalent picture of the events at trial. Osborne v. State, supra. See State v. Wright, supra; People v. Horton, supra; People v. Sharp, 9 Mich. App. 34, 155 N.W.2d 719 (1967); State v. Neely, supra. Cf. Commonwealth v. Hughes, supra; Williams v. State, supra; State v. Bolling, supra. But cf. Commonwealth v. Shields, 477 Pa. 105, 383 A.2d 844 (1978). [***21]Such a procedure has been provided for in the federal system as well, under Rule 10 (c) of the Federal Rules of Appellate Procedure.  See United States v. Piascik, supra.

   [*137] It is only when an adequate substitute cannot be made that most states will consider an appellant's contention that he has been deprived of meaningful appellate review.  See People v. Apalatequi, 82 Cal. App. 3d 970, 147 Cal. Rptr. 473 (1972); Commonwealth v. De Simone, 447 Pa. 380, 290 A.2d 93 (1972); Reyes v. Delgado, supra. Cf. State v. Larson, 62 Wash. 2d 64, 381 P.2d 120 (1963). But see State ex rel. Kisner v. Fox, 267 S.E.2d 451 (W. Va. 1980).

   We believe that requiring the defendant to do his part in attempting to reconstruct portions of the record which are missing through no fault of the prosecution does not offend notions of criminal due process.  See, e.g., People v. Robinson, supra; State v. Neely, 26 N.C. App. 707, 217 S.E.2d 94, cert. denied and app. dismissed, 288 N.C. 512, 219 S.E.2d 347 (1975). As noted by Justice Frankfurter, concurring in Griffin v. Illinois, supra, 351 U.S. at 21:

   "[T]he right of appeal may be accorded by the State to the accused[***22] upon such terms as in its wisdom may be deemed proper." McKane v. Durston, 153 U.S. 684, 687-88. The States have exercised this discriminating power.  The different states and the same state from time to time have conditioned criminal appeals by fixing the time within which an appeal may be taken, by delimiting the scope of review, by shaping the mechanism by which alleged errors may be brought before the appellate tribunal, and so forth.

   Although appellant claims he must have a new trial because, in any event, his counsel at trial has no "independent recollection of the events at trial" from which a substitute statement could be prepared, this assertion, by itself, is insufficient to relieve him of his obligation to do his part in attempting to settle the record on appeal.  Again, as in Kennedy v. State, supra, it is noteworthy that there has been no assertion that appellant himself has a faulty recollection of the legal events and testimony which transpired during the portions of examination and cross-examination which were not preserved verbatim for review.  In addition, [*138] although he asserts that the affidavit filed by the trial judge, on the State's request, [***23] demonstrates the unsuitability of the court's recollection as well, appellant has directed no inquiry to the trial court to determine whether, in fact, [**1150] more specific information could not have been provided.

   Here, it is the failure of appellant to demonstrate that he has been diligent in his attempt to reconstruct the missing testimony which delivers the crucial blow to his argument that a new trial is required; for, as in Kennedy, no application was made to the trial judge per Rule 826 (c) or 1026 (c).  No effort whatsoever was made on appeal to supplement the record by motion to the appellate court or to demonstrate the manner, if any, in which the affidavits supplied by the State and the trial court are insufficient to provide appellant with adequate appellate review.  The appellant has the responsibility to make a sincere effort to perfect the record.  Here he has done nothing.

   Judgment affirmed.
 
   Appellant to pay the costs. 

GARY EARL NEVILLE v. STATE OF MARYLAND; HOWARD CHESTERKELLY, JR. v. STATE OF MARYLAND 
Nos. 31, 33, September Term, 1980
 
Court of Appeals of Maryland
 
290 Md. 364; 430 A.2d 570; 1981 Md. LEXIS 229

 June  3, 1981, Decided

   PRIOR HISTORY: [***1]  
No. 31 -- Appeal from the Circuit Court for Carroll County; Gilmore, J., pursuant to certiorari to the Court of Special Appeals.

   No. 33 -- Certiorari to the Court of Special Appeals.  Circuit Court for  Anne Arundel  County, Thieme, J.

DISPOSITION: Judgment of the Circuit Court for Carroll County in No. 31, Neville v. State, affirmed.  Appellant to pay the costs.  Judgment of the Court of Special Appeals in No. 33, Kelly v. State, affirmed.  Appellant to pay the costs .

CORE TERMS:  sexual activity, privacy, consensual, fellatio, right of privacy, site, right to privacy, perverted, adult, intimate, sexual, clearing, tracks, shed, consenting, sodomy, sexual conduct, married, constitutionally-protected, wooded, intimacy, marriage, convicted, railroad, feet, casual, indecent exposure, appeal dismissed, observer, constitutional right of privacy

COUNSEL: George E. Burns, Jr., Assistant Public Defender, with whom were Alan H. Murrell, Public Defender, and J. Robert Johnson, Assistant Public Defender, on the brief, for appellant Neville.  Barbara Mello and Timothy E. Meredith, with whom were Robert W. Warfield and Corbin, Heller & Warfield, Chartered on the brief, for appellant Kelly.

   Alice Pinderhughes, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellee.

JUDGES: Murphy, C. J., and Smith, Digges, Eldridge, Cole, Davidson and Rodowsky, JJ.  Rodowsky, J., delivered the opinion of the Court.  Davidson, J., dissents and filed a dissenting opinion at page 386 infra.

OPINIONBY: RODOWSKY

OPINION: [*366] [**571] These appeals in criminal cases which were consolidated for argument in this Court question the constitutionality, primarily on privacy and equal[***6] protection grounds, of the Maryland perverted practices statute.  For the reasons set forth below, we affirm the convictions.

   [*367] I

   Appellant Howard Chester Kelly, Jr. (Kelly), then age 18, was tried before a jury in the Circuit Court for Anne Arundel County.  His prosecution was initiated on the complaint of a 16-year-old female, Pat.  A friend of Kelly, Ronald Holden (Holden), was tried jointly with Kelly.

   Pat testified in substance that she was abducted at knife-point by Kelly and Holden from the Harundale Shopping Center in Glen Burnie on the afternoon of Friday, May 5, 1978.  Pat said that she was taken by automobile to an abandoned nike missile site where she was raped by Holden and forced to perform fellatio on Kelly.  Both Kelly and Holden took the stand and said Pat asked for a ride in their automobile.  Each testified that a variety of two party and three party sexual acts were performed with Pat that afternoon, all with her consent and at her instigation.  For purposes of the present appeal it is sufficient to note that Kelly testified Pat performed fellatio upon him, in the presence of Holden, outside of an old metal shed which was at one time used to store acid[***7] in connection with the former missile installation.  There was also defense evidence concerning an admission made by Pat to an acquaintance that Pat picked up the two defendants and had sex with them, after which they abandoned her and that, in order to get revenge for the abandonment, Pat claimed to be the victim of forced sexual acts.  Holden and Kelly testified that they left Pat at the site only after she became enraged because they disparaged the quality of her performance.

   [**572] The jury found Kelly guilty of committing an unnatural and perverted sexual practice in violation of Md. Code (1957, 1976 Repl. Vol., 1980 Cum. Supp.), Art. 27, § 554. n1 Kelly [*368] was acquitted of the charges of first and second degree rape, of first and second degree sexual offenses (Art. 27, §§ 462, 463, 464 and 464A), of common law assault and battery, and of kidnapping (Art. 27, § 337). n2 By motion supported by an extensive legal memorandum, both filed on the day before trial on the merits commenced, Kelly attacked § 554 as violative of privacy, equal protection, and the prohibition against cruel and unusual punishment.  Additionally, exception was taken by Kelly to the refusal[***8] to instruct the jury that consent was defensive to the perverted practice charge.  This request was predicated on Kelly's argument that a constitutional right of privacy applied to the facts of his case.  Kelly was sentenced to one year, service of the sentence was suspended and he was placed on supervised probation for three years.  The conviction was affirmed by the Court of Special Appeals.  Kelly v. State, 45 Md. App. 212, 412 A.2d 1274 (1980). We granted certiorari.

n1 The statute in pertinent part provides:

   Every person who is convicted of taking into his or her mouth the sexual organ of any other person or animal, or who shall be convicted of placing his or her sexual organ in the mouth of any other person or animal, or who shall be convicted of committing any other unnatural or perverted sexual practice with any other person or animal, shall be fined not more than one thousand dollars ($1,000.00), or be imprisoned in jail or in the house of correction or in the penitentiary for a period not exceeding ten years, or shall be both fined and imprisoned within the limits above prescribed in the discretion of the court.
[***9] 

n2 Holden was likewise convicted only on the perverted practice charge, but has not appealed.

   The first of three questions presented by Kelly in his petition for certiorari was "[w]hether the imposition of absolute criminal liability for private, consensual sexual conduct infringes a constitutionally protected right of privacy . . . ." [Emphasis added.] This question encompasses, under Md. Rule 813 a, the issue of whether the admitted sexual conduct was "private" for purposes of the asserted constitutional right.  Having exercised our discretion to grant Kelly's petition and thereby to afford him a discretionary appeal, the case is treated like every other appeal with respect to the issue of "private" conduct.  "And, as in every ordinary direct appeal, the rule is well established that an appellate court will normally affirm a trial court on a ground adequately shown by the record, even though that ground was not the one relied upon by the trial court." Robeson v. State, 285 Md. 498, 503-04, 403 A.2d [*369]1221, 1224 (1979), cert. denied, 444 U.S. 1021, 100 S. Ct. 680, 62 [***10]L. Ed. 2d 654 (1980). n3

n3 Similarly in No. 31, Neville v. State, the question presented in the petition for certiorari was whether "Article 27, § 554 [is] unconstitutional as applied to consenting adults of the opposite sex acting in private."

   The former missile site at which the conduct occurred is approximately two miles south of Fort Smallwood Park and lies east of Fort Smallwood Road which, in this area, may be considered as running north-south.  Fronting on the east side of Fort Smallwood Road is a public school, described as comprised of both a lower school and an upper school.  The abandoned nike facility lies behind, or east of, the public school.  The distance from Fort Smallwood Road to the nike base was estimated to be one-quarter or from one-quarter to one-half mile.  A road leads past the public school to the old military compound which is partially fenced and which is used occasionally as a dump.  Kelly, Holden and Pat parked their car near the dumping area and at the foot of a "hill" of unspecified[***11] elevation.  They got out of the car and drank some beer. Each participant testified that there was a pickup truck parked in the vicinity. Two men were scavenging cinder blocks and loading them in the truck.  Kelly estimated the pickup truck to be 60 to 70 feet from where they parked.  Holden testified that the two men were close enough to enable him to hear their conversation.

   [**573] On the other side of the hill from the point where the participants' car was parked is a concrete slab on which sits the rusted out metal shed outside of which and in which the sexual activity took place.  To the east of the metal shed is the home of the Bolander family.  It was identified as also being the Stony Creek Rod and Gun Club.  This house is approximately one-half block from the metal shed. The shed is not visible from the Bolander house because the intervening area is wooded. However, a path approximately three feet wide runs from the Bolander home, past the shed, toward the public school.  The shed is visible from the path.  Mrs. Bolander has seen the shed while using the path to pick up her 9-year-old daughter who attends the Fort Smallwood [*370] School.  Also approximately[***12] one-half block from the metal shed, but on the other side of the path from the shed, is the skeet shooting area of the rod and gun club.  On the afternoon in question, Mrs. Bolander's 9-year-old daughter and her son n4 were searching in the area of the skeet traps for the daughter's mislaid wallet.  The 9-year-old daughter came upon Pat after the occurrence and brought her to the Bolander home where Mrs. Bolander telephoned the police.

n4 There are two other Bolander children in addition to the 9-year-old daughter.  Their ages were 13 and 15 at the time of trial.  The record does not disclose the age of the son referred to.

   II

   The prosecution in No. 31 was based upon visual observations by Patrolman Dean Brewer of the Westminster Police Department.  Gary Earl Neville (Neville), age 42, was charged in the Circuit Court for Carroll County with indecent exposure and, under § 554, with perverted sexual practice.  On Saturday, August 12, 1978, at approximately 3:00 o'clock in the afternoon, Officer Brewer observed[***13] Neville and a 27-year-old female, Susan, walking along the railroad tracks which run parallel to Railroad Avenue within the municipal limits of Westminster.  The railroad tracks run generally north-south.  Officer Brewer had information that Susan had been engaging in perverted practice activities.  Anticipating the site to which the two might be going, he drove his marked police car to a furniture store east of, and in the vicinity of, a small wooded area which lies east of the railroad tracks. Officer Brewer proceeded on foot down an incline and took a position approximately 25 feet from a clearing in the wooded area.  This clearing, which was four to five feet wide, had pieces of clothing scattered about on the ground.  The wooded area was half-moon shaped.  Its flat edge ran along the side of the railroad tracks for 75 to 100 feet. There were approximately 40 trees in the wooded area.  It was overgrown with sticker bushes of about waist height.  A number of paths ran through [*371]the wooded area to the clearing, including a path which ran from the railroad tracks. The clearing was approximately 10 to 15 feet from the railroad tracks and at an elevation approximately four[***14] feet higher than the tracks. Officer Brewer arrived at the area in advance of Neville and Susan.  He observed them leave the railroad tracks, walk into the wooded area and lie down on the clothing.  The officer moved to a point approximately 15 feet from the subjects and remained in a crouched or kneeling position so as not to be observed.  Susan performed fellatio on Neville, after which Officer Brewer arrested both.

   Neville was employed by the Rescue Mission in Westminster.  While Neville and Susan were in the clearing, two men from the Rescue Mission walked down the railroad tracks to a shopping center and walked back.  This route took them within 15 feet of the clearing. The railroad tracks are used by the people at the Mission.  By Neville's admission, the tracks are used by a "lot of other people . . . too," because "[i]t's close to the shopping center."

   Neville was found guilty only on the perverted practices charge.  He was fined $10 and costs, and payment of the fine and costs was suspended.  We granted certiorari prior to the consideration by the Court of Special Appeals of Neville's appeal.

   [**574] III

   There is no universally recognized and accepted definition[***15] of the concept of privacy in the sense in which appellants invoke it. n5 We are not here concerned with matters relating to the confidentiality of personal information, nor exclusively with solitude, but rather with concepts of liberty of the individual which are considered to be so fundamental as to be protected from unwarranted governmental interference even though express recognition of the right is [*372] not found in the words of a written constitution. Whalen v. Roe, 429 U.S. 589, 598-600, 97 S. Ct. 869, 876, 51 L. Ed. 2d 64, 73 (1977). We propose no definition here.  Rather, like the scientist, we can best identify the phenomenon by the circumstances under which it has been authoritatively reported to exist after a test conducted in the laboratory of a case which applies the right to actual facts.  The Supreme Court recently catalogued its decisions which implicate the right of privacy. While the catalogue is perhaps incomplete, it embraces the decisions principally relied upon by the appellants in the instant cases.

   Although "[t]he Constitution does not explicitly mention any right of privacy," the Court has recognized that one aspect of the "liberty" protected [***16]by the Due Process Clause of the Fourteenth Amendment is "a right of personal privacy, or a guarantee of certain areas or zones of privacy." Roe v. Wade, 410 U.S. 113, 152 [93 S. Ct. 705, 726, 35 L. Ed. 2d 147] (1973).  This right of personal privacy includes "the interest in independence in making certain kinds of important decisions." Whalen v. Roe, 429 U.S. 589, 599-600 [97 S. Ct. 869, 876, 51 L. Ed. 2d 64] (1977).  While the outer limits of this aspect of privacy have not been marked by the Court, it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions "relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 [87 S. Ct. 1817, 1823, 18 L. Ed. 2d 1010] (1967); procreation, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541-542 [62 S. Ct. 1110, 1113-1114, 86 L. Ed. 1655] (1942); contraception, Eisenstadt v. Baird, 405 U.S. at 453-454 [92 S. Ct. at 1038-1039]; id., at 460, 463-465 [92 S. Ct. at 1042, 1043-1044] (White, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 [64 S. Ct. 438, 442, 88 L. Ed. 645] (1944); and child[***17] rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 [45 S. Ct. 571, 573, 69 L. [*373] Ed. 1070] (1925); Meyer v. Nebraska [262 U.S. 390, 399 (1923)] [43 S. Ct. 625, 67 L. Ed. 1042]." Roe v. Wade, supra, at 152-153 [93 S. Ct. at 726]. See also Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-640 [94 S. Ct. 791, 796-797, 39 L. Ed. 2d 52] (1974).  [Carey v. Population Services International, 431 U.S. 678, 684-85, 97 S. Ct. 2010, 2016, 52 L. Ed. 2d 675, 684 (1977).]

n5 As briefed and argued, appellants' arguments are predicated upon the Constitution of the United States.  No special argument is advanced based upon provisions of the Constitution or Declaration of Rights of Maryland.

   As recently as 1976 this Court observed that it is "clear that the Supreme Court has yet to extend the right of privacy much beyond the context of intimate relationships." Montgomery Co. v. Walsh, 274 Md. 502, 513, 336 A.2d 97, 105 (1975), appeal dismissed,[***18] 424 U.S. 901, 96 S. Ct. 1091, 47 L. Ed. 2d 306 (1976). See also Doe v. Commander, Wheaton Police Dept., 273 Md. 262, 272, 329 A.2d 35, 41-42 (1974).

   The Supreme Court's decision in Carey n6 makes plain that the Court considers it to be an open question whether the right of privacy applies to all of the combinations and permutations which can fall under the general heading of "adult sexual relations." Following a reference to the compelling state interest test for the justification of [**575] certain state regulation and to the requirement that such a regulation must be narrowly drawn to express only the legitimate state interests at stake, as those concepts were applied in Roe v. Wade, the Court inserted the following footnote:

   Contrary to the suggestion advanced in Mr. Justice Powell's opinion, we do not hold that state regulation must meet this standard "whenever it implicates sexual freedom," . . . or "affect[s] adult sexual relations," . . . but only when it "burden[s] an individual's right to decide to prevent conception or [*374]terminate pregnancy by substantially limiting access to the means of effectuating that decision." . . . As we observe[***19] below, "the Court has not definitively answered the difficult question whether and to what extent the Constitution prohibits state statutes regulating [private consensual sexual] behavior among adults," n.17, infra, and we do not purport to answer that question now.  [Carey v. Population Services International, supra, 431 U.S. at 688 n.5, 97 S. Ct. at 2018 n.5, 52 L. Ed. 2d at 687 n.5.] n[7]

n6 Carey invalidated a New York statute which made it criminal for any person to sell or distribute contraceptives to persons under 16, for one other than a licensed pharmacist to distribute contraceptives to persons 16 or over and for anyone, including licensed pharmacists, to advertise or display contraceptives.

n7 The court obviously took pains to insert the above-quoted disclaimer. Footnote 17 referred to appears in part IV of the opinion.  Only four Justices joined in part IV.  However, the above-quoted note, which is partially duplicative of note 17, is inserted in part III of the opinion in which 6 Justices joined.

[***20]

   The Supreme Court's careful limitation to the facts before it of a holding that a right of privacy applies, which is manifested in Carey, was perceived by this Court in earlier Supreme Court privacy decisions.  In Montgomery Co. v. Walsh, supra, we referred to the emphasis in Roe v. Wade "that only personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty' are included in the constitutional guarantee of personal privacy" and we refer to the language of Eisenstadt v. Baird which speaks of freedom "'from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.'" We discerned that if "these pronouncements hint that the constitutional right of privacy is of limited scope and not to be lightly applied, Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446 (1973), makes it explicit." 274 Md. at 512-13, 336 A.2d at 105.

   Slaton was the review of a Georgia decision which held that an injunction could issue to prohibit the exhibition in an adult movie theatre of films depicting scenes of simulated fellatio, cunnilingus and group[***21] sexual intercourse.  The theatre argued, citing Stanley v. Georgia, 394 U.S. 557, 89 [*375]S. Ct. 1243, 22 L. Ed. 2d 542 (1969), that state regulation of access to obscene material by consenting adults violates the constitutionally protected right to privacy enjoyed by its customers.  A five member majority of the Court, referring to "'only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty",'" stated that this "privacy right encompasses and protects the personal intimacies of the home, the family, marriage, motherhood, procreation, and child rearing." Slaton, supra, 413 U.S. at 65, 93 S. Ct. at 2639, 37 L. Ed. 2d at 462. In rejecting an argument seeking an expansion to Slaton's facts of the privacy right recognized in Stanley, the Supreme Court said:

   If obscene material unprotected by the First Amendment in itself carried with it a "penumbra" of constitutionally protected privacy, this Court would not have found it necessary to decide Stanley on the narrow basis of the "privacy of the home," which was hardly more than a reaffirmation that "a man's home is his castle." . . . Moreover, we have declined to equate[***22] the privacy of the home relied on in Stanley with a "zone" of "privacy" that follows a distributor or consumer of obscene materials wherever he goes.  [cit. om.] The idea of a "privacy" right and a place of public accommodation are, in this context, mutually exclusive.  Conduct or depictions of conduct that the state police power can prohibit on a public street do not become automatically protected by the Constitution merely because the conduct is moved to a bar or a "live" theater [**576] stage, any more than a "live" performance of a man and woman locked in a sexual embrace at high noon in Times Square is protected by the Constitution because they simultaneously engage in a valid political dialogue.  [413 U.S. at 66-67, 93 S. Ct. at 2640, 37 L. Ed. 2d at 462-63.]

   In a footnote to the foregoing passage, the Court recognized the distinction between the solitude aspects of privacy and its application to intimate relationships.
 
[*376] The protection afforded by Stanley v. Georgia . . . is restricted to a place, the home.  In contrast, the constitutionally protected privacy of family, marriage, motherhood, procreation, and child rearing is not just concern [***23] with a particular place, but with a protected intimate relationship. Such protected privacy extends to the doctor's office, the hospital, the hotel room, or as otherwise required to safeguard the right to intimacy involved.  . . . Obviously, there is no necessary or legitimate expectation of privacy which would extend to marital intercourse on a street corner or a theater stage. [Emphasis supplied.]

   Professor Tribe has advanced the theory that harms existing only in the mind of the beholder do not suffice to support state action which infringes on a right of privacy. In focusing on possible limits of that principle he has stated that "perhaps the most basic is that, when the affront seems offensive enough in relation to the importance of the choice to the person making it, the community may require at least that the choice be made in some less obtrusive way -- at home, perhaps, or a nudist camp, but not on the main street at high noon." L. Tribe, American Constitutional Law 984 (1978).  See also Richards, Unnatural Acts and The Constitutional Right to Privacy: A Moral Theory, 45 Fordham L. Rev. 1281, 1333-34 (1977).

   A possible vehicle for addressing directly[***24] the intersection of state power and personal sexual conduct was presented to the Supreme Court in the appeal from Doe v. Commonwealth's Attorney for City of Richmond, 403 F. Supp. 1199 (E.D. Va. 1975), a decision of a three judge district court n8 which sustained the constitutionality of the Virginia sodomy statute.  The challenge was by male plaintiffs who averred, inter alia, that the statute unjustifiably invaded their rights of privacy when applied to [*377] active and regular homosexual relations with another adult male, consensually and in private.  They sought to enjoin allegedly threatened prosecution for violation of that law. The district court decision was summarily affirmed.  425 U.S. 901, 96 S. Ct. 1489, 47 L. Ed. 2d 751 (1976).

n8 Opinion by Senior Circuit Judge Bryan, joined by District Judge Lewis, with District Judge Merhige dissenting.

   It is clear from the foregoing review that there is no holding by the Supreme Court that the right of privacy applies to conduct of the type prohibited [***25]by Md. Code, Art. 27, § 554.  Petitioner Kelly, however, contends that the rationale of the Court's privacy decisions to date necessarily leads to the conclusion that "private consensual sexual conduct" is constitutionally immunized from criminal liability.  Neville asserts that § 554 is unconstitutional "as applied to consenting adults of the opposite sex acting in private." n9 While the questions presented in the petitions for certiorari have characterized the conduct here as being "private," and while that characterization may well be properly applied to the locations here involved in other contexts, the private nature of particular conduct in a given location for constitutional right of privacy purposes is a matter of degree determined by all of the circumstances.  Here, where the conduct, even if consensual, is fellatio, and even if we assume, arguendo, that constitutional personal autonomy could under some circumstances [**577] protect that sexual act, we do not believe that constitutional personal autonomy prohibits enforcement of § 554 under the facts of the present cases.

n9 The differences in the scope of the claimed right as expressed by the present petitioners highlight some of the factual variations that may arise. These include the type of sexual conduct, the legal status of each participant, the number of the participants, their sex and their legal relationship, if any, to one another, in addition to the place where the conduct occurred.

[***26]

   After the Griswold decision, criminal statutes which flatly and in terms without exception prohibit fellatio have been frequently challenged on privacy grounds.  The clear majority of consensual fellatio cases which have considered arguments based on personal autonomy have looked to the location and other circumstances to determine if any right of [*378] privacy could apply.  The argument has been rejected in Connor v. Hutto, 516 F.2d 853, 855 (8th Cir.), cert. denied, 423 U.S. 929, 96 S. Ct. 278, 46 L. Ed. 2d 257 (1975) ("The 'right of privacy' rationale stressed by appellant has not been extended by the [Supreme] Court to include the right to engage in the conduct for which appellant was convicted here, namely, sodomy in a car parked on a public highway."); Carter v. State, 255 Ark. 225, 500 S.W.2d 368 (1973), cert. denied, 416 U.S. 905, 94 S. Ct. 1610, 40 L. Ed. 2d 110 (1974) (11 p.m. in car parked on the well lighted lot of a public rest and tourist information facility adjacent to an interstate highway); Connor v. State, 253 Ark. 854, 490 S.W.2d 114, appeal dismissed, 414 U.S. 991, 94 S. Ct. 342, 38 L. Ed. 2d 230 (1973) (same facts as Connor [***27]  v. Hutto, supra); People v. Baldwin, 37 Cal. App. 3d 385, 112 Cal. Rptr. 290 (1974) (3:40 a.m. in public restroom within view of a plain clothes policeman); People v. Parker, 33 Cal. App. 3d 842, 109 Cal. Rptr. 354 (1973) (professional actors filming pornographic movies); People v. Drolet, 30 Cal. App. 3d 207, 105 Cal. Rptr. 824 (1973) (live performance at San Francisco night club); Stewart v. United States, 364 A.2d 1205 (D. C. App. 1976) (1:15 a.m. along a bank of the C&O Canal near 30th and M Streets, (N.W.); United States v. Buck, 342 A.2d 48 (D. C. App. 1975) (1:30 a.m. in a public wooded area at 29th Street and Pennsylvania Avenue, N.W.); United States v. McKean, 338 A.2d 439 (D. C. App. 1975) (in cubicles of a "health club"; immaterial whether doors of cubicles were open or closed because of the nature of the particular establishment); Harris v. United States, 315 A.2d 569 (D. C. App. 1974) (en banc) (same "health club" as in McKean, supra, held to be a disorderly house open to the public because membership could be obtained with minimum formality and modest fees); and State v. Jarrell, 24 N.C. App. 610, 211 S.E.2d 837, cert. denied[***28] and appeal dismissed, 286 N.C. 725, 213 S.E.2d 724 (1975) (public restroom in public park).  We hold that Md. Code, Art. 27, § 554 was constitutionally applied to each petitioner.  Each petitioner engaged in this intimate sexual activity during daylight hours in a place which was out of doors, which was in a well populated community, and which [*379] was equally as accessible to uninvited other persons as it was to petitioner. n10

n10 We need not address the State's argument, applicable to Kelly, which is based upon the presence of Holden and on the opinion of a divided en banc court in Lovisi v. Slayton, 539 F.2d 349 (4th Cir.), cert. denied sub nom.  Lovisi v. Zahradnick, 429 U.S. 977, 97 S. Ct. 485, 50 L. Ed. 2d 585 (1976). In that case habeas corpus relief was denied to a husband and wife who engaged in fellatio in the bedroom of their home in the presence of an invited male third party who had responded to the couple's magazine advertisement.  It was held that the presence of the onlooker dissolved the couple's reasonable expectation of privacy. But see Eichbaum, Lovisi v. Slayton: Constitutional Privacy and Sexual Expression, 10 Colum. Human Rights L. Rev. 525, 537-38 (1978-79), and Note, The Marital Right of Privacy Does Not Protect a Husband and Wife Performing Sodomy in the Presence of a Third Person, 45 Geo. Wash. L. Rev. 839 (1977).

[***29]

   Kelly asserted at oral argument that the issue of whether his conduct was private was not tried and decided by the trial court.  Md. Rule 885.  The contention is not supported by the record.  In his memorandum in support of his motion for dismissal, Kelly argued that the missile base was a "secluded spot, far off the beaten path" so that the parties had a reasonable expectation of privacy. The motion was denied.

   Neville additionally advanced at oral argument a contention based on his acquittal of a companion charge of indecent exposure arising out of the same incident.  He [**578] had argued to the trial court that the indecent exposure charge should fall as a matter of law because the conduct did not occur in a public place.  The trial court, sitting non-jury, acquitted Neville on the indecent exposure count by reference to Messina v. State, 212 Md. 602, 605, 130 A.2d 578, 579-80 (1957). It reasoned that an essential element of the crime of indecent exposure was that the exposure must be seen or be likely to be seen by a casual observer and then held that Officer Brewer, who was "required to literally stalk the Defendant . . . was not a 'casual observer' as defined in [***30]Messina." n11 At the same time the trial court rejected Neville's argument based on a constitutional right of privacy. Even if it is assumed that the facts in Neville's case did not establish all of the elements of indecent exposure, the [*380] legislatively created crime of perverted practice under § 554 does not, by its terms, include an element relating to the type of place where the conduct must occur in order for it to be statutorily prohibited.  A greater degree of circumstances of privacy than is presented here would be required in order to support the private conduct element of an argument that Neville's fellatio was not criminal under § 554 because it was the exercise of a constitutionally protected right of personal autonomy.

n11 The indecent exposure charge is not before us and we express no opinion on this application of Messina.

   Similarly, because § 554 makes it a violation of the criminal law of Maryland to place one's sexual organ in the mouth of any other person, whether the act [***31]is voluntary or involuntary is immaterial at the statutory level of analysis.  Gooch v. State, 34 Md. App. 331, 367 A.2d 90 (1976), cert. denied, 280 Md. 735 (1977). Kelly argues that the trial court erred in refusing to instruct the jury that consent on the part of Pat was defensive to the charge that he violated § 554.  The foundation for this requested instruction necessarily lies in Kelly's constitutional argument which would prevent literal application of § 554 to sexual conduct which is the exercise of rights of personal autonomy between consenting persons in private.  Inasmuch as the claimed constitutional right would not apply to the circumstances in Kelly's case, even if the fellatio were consensual, n12 there was no error in refusing the requested instruction.

n12 By assuming, arguendo, a federal constitutional right of privacy applicable under some circumstances to fellatio, we do not imply, from the facts or arguments in Kelly's case, any opinion as to a minimum age at which a person might first become constitutionally protected to engage in this particular sexual conduct.

[***32]

   Kelly next contends that § 554 is facially unconstitutional because of overbreadth.  It is said that the statute by its terms can embrace private sexual activity between consenting adults, a result said to be beyond the police power of the State as limited by due process.  Kelly submits that this Court should either strike down § 554 in its entirety, or construe § 554 so as to exclude from its application sexual conduct of consenting adults in private. Even if we were to assume that § 554 could not constitutionally be applied in [*381]certain situations, that is not a basis for voiding it in whole or in part where, as here, it is validly applied to the facts before the court. Statutes prohibiting oral sodomy, which could be read to include conduct between consenting adults, have not been struck down where the statute was validly applied to the defendant because his conduct was not in private, n13 or took place in prison, n14 or was with a minor n15 or was accomplished by force. n16

 n13 People v. Baldwin, supra; Stewart v. United States, supra; Harris v. United States, supra; United States v. McKean, supra; United States v. Buck, supra and State v. Jarrell, supra. See also Buchanan v. Batchelor, 308 F. Supp. 729 (N.D. Tex. 1970), vacated on other grounds, 401 U.S. 989, 91 S. Ct. 1221, 28 L. Ed. 2d 526 (1971) as to one plaintiff arrested for sodomy in a public rest room.

[***33] 

n14 United States v. Brewer, 363 F. Supp. 606 (M.D. Pa.), aff'd mem., 491 F.2d 751 (3d Cir. 1973), cert. denied, 416 U.S. 990, 94 S. Ct. 2399, 40 L. Ed. 2d 768 (1974); Washington v. Rodriguez, 82 N.M. 428, 483 P.2d 309 (Ct. App. 1971). See People v. Frazier, 256 Cal. App. 2d 630, 64 Cal. Rptr. 447 (1967).

n15 State v. Worthington, 582 S.W.2d 286 (Mo. App. 1979); Jones v. State, 85 Nev. 411, 456 P.2d 429 (1969).

n16 Swikert v. Cady, 381 F. Supp. 988 (E.D. Wis. 1974), aff'd mem., 513 F.2d 635 (7th Cir. 1975); People v. Sharpe, 183 Colo. 64, 514 P.2d 1138 (1973); State v. Thompson, 221 Kan. 165, 558 P.2d 1079 (1976); State v. Levitt, 118 R.I. 32, 371 A.2d 596 (1977); Jones v. State, 55 Wis. 2d 742, 200 N.W.2d 587 (1972); and Pruett v. State, 463 S.W.2d 191 (Tex. Cr. App. 1970), appeal dismissed, 402 U.S. 902, 91 S. Ct. 1379, 28 L. Ed. 2d 643, reh. denied, 403 U.S. 912, 91 S. Ct. 2203, 29 L. Ed. 2d 690 (1971). See also Byrd v. State, 65 Wis. 2d 415, 222 N.W.2d 696 (1974).

   [**579] Neville's argument that he was only engaged in a form of birth control is a[***34] variation on the scenario of copulation during political dialogue in Times Square and is not applicable to the circumstances of his case. 

   IV

   The equal protection contention of Kelly is twofold.  He says that his conviction is discriminatory vis-a-vis married persons.  Both he and Neville also argue that the absence from Maryland law of a criminal sanction for fornication makes § 554 invalid.

   The outline of the argument based on comparison to married persons is that § 554 makes criminal oral sex [*382] between persons who are lawfully married to each other but that such a prohibition violates their privacy rights. n17 This, in turn, is claimed to result in two classes of persons under the statute, married persons who may not be prosecuted, and unmarried persons who are subject to prosecution.  Such a distinction, Kelly states, is offensive to equal protection. n18

 n17 A number of courts have held, or strongly implied, that the general prohibition of a perverted practices or oral sodomy statute cannot be applied to consenting married persons acting with each other in private, based on the constitutional right of privacy. See Lovisi v. Slayton, supra; Cotner v. Henry, 394 F.2d 873 (7th Cir.), cert. denied, 393 U.S. 847, 89 S. Ct. 132, 21 L. Ed. 2d 118 (1968); Doe v. Commonwealth's Att'y for City of Richmond, supra; Dixon v. State, 256 Ind. 266, 268 N.E.2d 84 (1971); State v. Elliott, 89 N.M. 305, 551 P.2d 1352 (1976); State v. Poe, 40 N.C. App. 385, 252 S.E.2d 843 (1979), appeal dismissed, 445 U.S. 947, 100 S. Ct. 1593, 63 L. Ed. 2d 782 (1980); Canfield v. State, 506 P.2d 987 (Okla. Cr. App. 1973), appeal dismissed, 414 U.S. 991, 94 S. Ct. 342, 38 L. Ed. 2d 230, reh. denied, 414 U.S. 1138 (1974); Warner v. State, 489 P.2d 526 (Okla. Cr. App. 1971); State v. Mattera, R.I., 415 A.2d 176 (1980); State v. Santos, R.I., 413 A.2d 58 (1980); Lee v. State, 505 S.W.2d 816 (Tex. Cr. App. 1974); Turner v. State, 497 S.W.2d 593 (Tex. Cr. App. 1973); Pruett v. State, 463 S.W.2d 191 (Tex. Cr. App. 1970), appeal dismissed, 402 U.S. 902, 91 S. Ct. 1379, 28 L. Ed. 2d 643 (1971).

[***35] 

n18 The highest courts of at least two states have struck down on equal protection grounds an oral sodomy statute which on its face excluded from the prohibition persons married to each other.  People v. Onofre, 51 N.Y.2d 476, 434 N.Y.S.2d 947, 415 N.E.2d 936 (1980), cert. denied, 49 U.S.L.W. 3864 (U.S. May 19, 1981) (Nos. 80-1634, 80-1710); Commonwealth v. Bonadio, 490 Pa. 91, 415 A.2d 47 (1980).

   This argument in essence asks us to read into § 554 an exception based upon one line of cases, only to invalidate the statute, as so construed, under another line of cases.  However, we perceive no violation of equal protection. Were a married couple to be prosecuted for engaging in perverted practice at a place and under circumstances similar to those of Kelly's case, we are satisfied, for the reasons stated in Part III of this opinion, that marriage would not be a defense and that any possible right of privacy which the couple might otherwise have would not apply.  There is no deprivation of equal protection of the law if "all persons who are in like circumstances or affected alike are treated[***36] under the laws the same . . . ." Salisbury Beauty Schools v. State Board of Cosmetologists, 268 Md. 32, 60, 300 A.2d 367, 383 (1973).

   It is further asserted that petitioners' rights to equal protection are violated by § 554 because a person who [*383] fornicates, under circumstances otherwise similar to those here, is not subject to criminal prosecution for that sexual conduct. We consider first the standard for review. Neville rests on the rational relation test.  Kelly seeks strict scrutiny and, only alternatively, [**580] a rational basis test.  Inasmuch as we have already held that no fundamental right of privacy was infringed in these cases, the basis for contending for a strict scrutiny standard is lacking.  After argument in the instant cases Attorney General of Maryland v. Waldron was decided, 289 Md. 683, 426 A.2d 929 (1981). There Judge Digges distilled from the Supreme Court decisions and elucidated for this Court a third category of equal protection analysis which requires a fair and substantial relation between the statute under consideration and the legitimate objective of the police power for which it was enacted.  This standard applies "when important[***37] personal rights, not yet held to merit strict scrutiny but deserving of more protection than a perfunctory review would accord, are affected by a legislative classification," in which case "a court should engage in a review consonant with the importance of the personal right involved." Id. at 713, 426 A.2d at 946. The relatively open fellatio in these cases can hardly be the exercise of an important personal right.

   The rational relation test applies.  Under that test, "[t]he distinctions drawn by a challenged statute must bear some rational relationship to a legitimate state end and will be set aside as violative of the Equal Protection Clause only if based on reasons totally unrelated to the pursuit of that goal." McDonald v. Board of Election Commissioners of Chicago, 394 U.S. 802, 809, 89 S. Ct. 1404, 1408, 22 L. Ed. 2d 739, 745 (1969). The Supreme Court "has made clear that a legislature need not 'strike at all evils at the same time or in the same way' . . . ." Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 101 S. Ct. 715, 725, 66 L. Ed. 2d 659, 670 (1981) (quoting Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608, 610, 55 S. Ct. 570, 571, [***38] 79 L. Ed. 1086 (1935)). One valid objective of a perverted practices or sodomy statute is the protection of public morality.  Note, The Constitutionality of Laws Forbidding Private Homosexual [*384] Conduct, 72 Mich. L. Rev. 1613, 1631 (1974); see also Paris Adult Theatre I v. Slaton, supra, 413 U.S. at 59-60 [93 S. Ct. at 2636, 37 L. Ed. 2d at 458] ("[t]here is a 'right of the Nation and of the States to maintain a decent society . . . .' Jacobellis v. Ohio, 378 U.S. 184, 199 [84 S. Ct. 1676, 1684, 12 L. Ed. 2d 793] (1964) (dissenting opinion [of Chief Justice Warren])").  No more is required for § 554 to be valid than that the General Assembly could reasonably have concluded that where the sexual activity is fellatio as contrasted with vaginal copulation, there is a greater risk of a member of the public being affronted by coming upon a quick and casual sexual liaison in a place equally as accessible to the uninvited and unwilling viewer as to the participants.

   Petitioners' argument is much like one which has been advanced in marihuana cases where defendants have argued that equal protection of the laws has been denied because a legislative body has not[***39] also proscribed possession or use of alcohol or tobacco.  The argument has regularly been rejected on the ground that a legislative body is free to recognize degrees of harm, and may confine its restrictions to instances where it determines the need for them is clearest.  E.g., United States v. Bergdoll, 412 F. Supp. 1308, 1313 (D. Del. 1976); Ravin v. State, 537 P.2d 494, 512 (Alaska 1975); State v. Renfro, 56 Hawaii 501, 542 P.2d 366, 369-70 (1975); Ill. NORML, Inc. v. Scott, 23 Ill. Dec. 303, 66 Ill. App. 3d 633, 383 N.E.2d 1330, 1336 (1978); Commonwealth v. Leis, 355 Mass. 189, 243 N.E.2d 898, 905 (1969); State ex rel. Zander v. District Court, 591 P.2d 656, 661 (Mont. 1979) and State v. Smith, 93 Wash. 2d 329, 610 P.2d 869, 876, cert. denied, 449 U.S. 873, 101 S. Ct. 213, 66 L. Ed. 2d 93 (1980).

   V

   Finally, petitioner Kelly invokes the prohibition against cruel and unusual punishment of the Eighth Amendment of the United States Constitution and argues that Art. 27, § 554 violates two of its aspects.  First, Kelly, citing Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962), contends that the amendment's substantive[***40] [*385] limitations on what may be made [**581] criminal forbid punishing private sexual expression.  The Supreme Court, however, has admonished that this prong of the eighth amendment is "one to be applied sparingly," Ingraham v. Wright, 430 U.S. 651, 667, 97 S. Ct. 1401, 1410, 51 L. Ed. 2d 711, 728 (1977), lest courts become the ultimate arbiters of the standards of criminal responsibility.  Moreover, Robinson's interpretation of the cruel and unusual punishment clause has not been applied beyond the facts of that case.  There the Supreme Court held that a statute that made it a crime to "be addicted to the use of narcotics" inflicted cruel and unusual punishment.  Subsequently, in Powell v. Texas, 392 U.S. 514, 88 S. Ct. 2145, 20 L. Ed. 2d 1254, reh. denied, 393 U.S. 898 (1968) a plurality of the court held that a chronic alcoholic could be convicted for public drunkenness consistent with the eighth amendment's proscriptions.  Robinson was said to prohibit punishment only for "mere status" and in the absence of some actus reus. Id. at 532-33, 88 S. Ct. at 2154, 20 L. Ed. 2d at 1267-68. The State here has not attempted to punish "mere status," but[***41] has imposed a sanction for behavior it deems harmful or offensive to the sensibilities of a large segment of the community.  This it is entitled to do under the Eighth Amendment to the United States Constitution.

   Second, Kelly, who was placed on three years supervised probation after the imposition of one year imprisonment was suspended, also contends that exposure to ten years imprisonment (the maximum imprisonment under § 554) for committing a perverted practice is grossly disproportionate to the severity of the crime and therefore is cruel and unusual under U.S. Const. amend. VIII.  See Weems v. United States, 217 U.S. 349, 30 S. Ct. 544, 54 L. Ed. 793 (1910). In Delnegro v. State, 198 Md. 80, 89-90, 81 A.2d 241, 246 (1951) this Court disclaimed "any right to oppose the judicial power against the legislative power to define crimes and to fix their punishment, except where the power of the Legislature encounters in its exercise a constitutional prohibition, and in such a case an imperative duty is invoked." In Kelly's case the actual punishment [*386] imposed was well below the statutory maximum and affords no basis for relief. Streat v. State, 239 Md. 694, 211[***42] A.2d 709 (1965); Apple v. State, 190 Md. 661, 668, 59 A.2d 509, 512 (1948).

   For the foregoing reasons the judgments are affirmed.

   Judgment of the Circuit Court for Carroll County in No. 31, Neville v. State, affirmed.

   Appellant to pay the costs.

   Judgment of the Court of Special Appeals in No. 33, Kelly v. State, affirmed. 

   Appellant to pay the costs.

DISSENTBY: DAVIDSON

DISSENT:  
Davidson, J., dissenting:

    The majority here fails to reach the essential question whether there is a constitutionally-protected right to privacy for private, consensual, sexual activity. Upon a constitutionally-mandated, independent appraisal of the record, the majority finds as a fact that the conduct of both petitioners, Neville and Kelly, occurred in places not sufficiently private to be afforded a constitutional right to privacy, if such a right exists.

   Upon my constitutionally-mandated, independent appraisal of the record, I find as a fact that the sexual activity of both Neville and Kelly occurred in a private place. n1 In my view, there is a constitutionally-protected right to privacy for private, consensual, sexual activity. n2 Thus, I would hold [**582]that Maryland Code (1957, [***43] 1976 Repl. Vol., 1980 Cum. Supp.), Art. 27, § 554, which makes such [*387] sexual activity a crime, is unconstitutional as applied here.  Accordingly, I respectfully dissent.

n1 In Kelly's case, the State does not contend that Kelly did not retain a reasonable expectation of privacy despite the presence of a third party (Holden).  Therefore, this question need not be considered here.

n2 Hereinafter, throughout this dissenting opinion, the term "consensual, sexual activity" refers to consensual, sexual activity engaged in by persons who have capacity to give legally valid consent.

   In Kelly's case, the State does not contend that the female involved, who was aged 16, lacked capacity to give legally valid consent to sexual activity. Therefore, this question need not be considered here.

   As long ago as 1891, the United States Supreme Court recognized the existence of a common law right to personal privacy in Union Pacific Railway Company v. Botsford, 141 U.S. 250, 251, 11 S. Ct. 1000, 1001 (1891).[***44] There Mr. Justice Gray said:

   "No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law."

   In 1928, Mr. Justice Brandeis indicated that the right to privacy might be constitutionally protected.  In a dissenting opinion, in Olmstead v. United States, 277 U.S. 438, 478, 48 S. Ct. 564, 572 (1928), he said:
 
"The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness.  They recognized the significance of man's spiritual nature, of his feelings and of his intellect.  They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations.  They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights and the right most valued by civilized men."

   In 1965, in Griswold v. Connecticut, 381 U.S. 479, 484-85, 85 S. Ct. 1678, 1681-82 (1965),[***45] the Supreme Court held that there is a constitutionally-protected right to privacy. Although the United States Constitution does not explicitly mention the right to privacy, Mr. Justice Douglas, stating that "the right of privacy [is] older than the Bill of Rights," explained:
 
[*388] "Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen.  The Third Amendment in its prohibition against the quartering of soldiers 'in any house' in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment.  The Ninth Amendment provides: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'"

   While the Supreme Court in other cases has held that the right to privacy [***46]includes the right to make personal decisions relating to marriage, procreation, contraception, abortion, family, and education, that Court has not defined the full scope of that right.  In Carey v. Population Services International, 431 U.S. 678, 688 n.5, 97 S. Ct. 2010, 2018 n.5 (1977), the Supreme Court said:
 
"'[T]he Court has not definitively answered the difficult question whether and to what extent the Constitution prohibits state statutes regulating [private consensual sexual] behavior among adults,' n.17, infra, and we do not purport to answer that question now."
 
Accordingly, I agree with the majority that the "Supreme Court's decision in Carey makes plain that the Court considers it to be an open question whether the right of privacy applies to all . . . 'adult sexual relations.'" n3

n3 I recognize that in Doe v. Commonwealth's Attorney for City of Richmond, 403 F. Supp. 1199, 1203 (E.D. Va. 1975), aff'd mem., 425 U.S. 901, 96 S. Ct. 1489-90 (1976), the Supreme Court summarily affirmed a judgment of the United States District Court of the Eastern District of Virginia that upheld the constitutionality of Virginia's sodomy statute as applied to private, sexual activity between consenting males.  While the summary affirmance was an adjudication on the merits of the question presented, Hicks v. Miranda, 422 U.S. 332, 343-45, 95 S. Ct. 2281, 2289 (1975), I do not consider it to be binding. The Supreme Court itself has indicated that a summary affirmance affirms the judgment only and not the reasoning of the Court, and, therefore, that "the Court has not hestitated to discard a rule which a line of summary affirmances may appear to have established." Fusari v. Steinberg, 419 U.S. 379, 392, 95 S. Ct. 533, 541 (1975) (Burger C.J., concurring).  See Mandel v. Bradley, 432 U.S. 173, 176-77, 97 S. Ct. 2238, 2240-41 (1977).

   It is important to note that the Carey case, which explicitly states that the question whether the Constitution prohibits state statutes that regulate private, consensual, sexual activity, was decided subsequent to Doe.  In addition, it is important to note that on 18 May 1981 the Supreme Court denied a petition for a writ of certiorari in People v. Onofre, 51 N.Y.2d 476, 415 N.E.2d 936, 434 N.Y.S.2d 947 (1980), cert. denied,    U.S.   , 101 S. Ct. 2323 (1981). In Onofre, the New York Court of Appeals held a consensual sodomy statute unconstitutional as applied to private, consensual, sexual activity because it unjustifiably interfered with the constitutionally protected right to privacy.

[***47]

   [*389] [**583] In Griswold, 381 U.S. at 486-87, 85 S. Ct. at 1682, the Supreme Court held that the distribution of contraceptives to married persons could not be prohibited.  Inherent in the Supreme Court's determination that married persons have a right to make decisions with respect to the consequence of sexual encounters was the recognition that married persons have the right to have such encounters.  Thus, the Supreme Court established that the constitutionally-protected right to privacy includes the intimacies associated with the marital relationship.

   In Eisenstadt v. Baird, 405 U.S. 438, 453-55, 92 S. Ct. 1029, 1038-39 (1972), the Supreme Court held that the distribution of contraceptives to unmarried persons could not be prohibited.  There the Court said:
 
"It is true that in Griswold the right of privacy in question inhered in the marital relationship.  Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup.  If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted[***48] [*390] governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Eisenstadt, 405 U.S. at 453, 92 S. Ct. at 1038 (emphasis added).
 
Thus, the Supreme Court made it clear that the right to make decisions with respect to the consequence of sexual encounters, and necessarily to have such encounters, was not limited to married persons.  Accordingly, the Supreme Court established that the constitutionally-protected right to privacy includes the intimacies associated with a personal relationship between unmarried persons.

   In Stanley v. Georgia, 394 U.S. 557, 568, 89 S. Ct. 1243, 1249-50 (1969), the Supreme Court held that the possession of obscene matter within the privacy of a person's home could not be prohibited.  There, the Court acknowledged that a person has
 
"the right to read or observe what he pleases -- the right to satisfy his intellectual and emotional needs in the privacy of his own home." Stanley, 394 U.S. at 565, 89 S. Ct. at 1248 (emphasis added).
 
Thus, the Supreme Court suggested that the constitutionally-protected right to privacy includes the right to seek sexual[***49] gratification by viewing obscene material in the privacy of one's home.

   In Paris Adult Theatre I v. Slaton, 413 U.S. 49, 66 n.13, 93 S. Ct. 2628, 2640 n.13 (1973), the Supreme Court recognized:

   "The protection afforded by Stanley v. Georgia is restricted to a place, the home.  In contrast, the constitutionally protected privacy of family, marriage, motherhood, procreation, and child rearing is not just concerned with a particular place, but with a protected intimate relationship.  Such protected privacy extends to the doctor's office, the hospital, the hotel room, or as otherwise required to safeguard the right to intimacy involved." (Emphasis added) (citation omitted).
 
[*391] [**584] Thus, the Supreme Court reiterated that the constitutionally-protected right to privacy includes the intimacies occurring in private that are associated with personal relationships.

   All of these cases lead to the conclusion that an unmarried person's decision to seek sexual gratification, even from deviant conduct, and to indulge in acts of sexual intimacy is included within the constitutionally-protected right to privacy. Indeed, this Court, itself, has previously[***50] recognized that the Supreme Court has established that the constitutionally-protected right to privacy includes intimate relationships.  Montgomery County, Md. v. Walsh, 274 Md. 502, 513, 336 A.2d 97, 105 (1975), appeal dismissed, 424 U.S. 901, 96 S. Ct. 1091 (1976); Doe v. Commander, Wheaton Police Dept., 273 Md. 262, 272, 329 A.2d 35, 41-42 (1974).

   At least one Justice of the Supreme Court has indicated that the constitutionally-protected right to privacy may include private, consensual, sexual activities.  Thus, in California v. LaRue, 409 U.S. 109, 132 n.10, 93 S. Ct. 390, 404 n.10 (1972), Mr. Justice Marshall, dissenting, has said:
 
". . . I have serious doubts whether the State may constitutionally assert an interest in regulating any sexual act between consenting adults."

   Courts in other jurisdictions have held that the right to privacy includes private, consensual, sexual activities.  In State v. Pilcher, 242 N.W.2d 348, 359 (Iowa 1976), an accused male was convicted under a sodomy statute of performing fellatio with a female in a farm house.  The Iowa Supreme Court held the statute unconstitutional, stating:

   "We hold section 705.1 in its[***51] present form is unconstitutional as an invasion of fundamental rights, such as the personal right of privacy, to the extent it attempts to regulate through use of criminal penalty consensual sodomitical practices performed in private by adult persons of the opposite sex."

   [*392] In People v. Onofre, 51 N.Y.2d 476, 483, 415 N.E.2d 936, 937-38, 434 N.Y.S.2d 947, 948 (1980), cert. denied,    U.S.   , 101 S. Ct. 2323 (1981), an accused male was convicted under a consensual sodomy statute of committing acts of deviate sexual intercourse with a 17-year-old male at the accused's home.  The New York Supreme Court, Appellate Division, held the statute unconstitutional, stating:
 
   "Thus it is seen that the concept of personal freedom includes a broad and unclassified group of values and activities related generally to individual repose, sanctuary and autonomy and the individual's right to develop his personal existence in the manner he or she sees fit.  Personal sexual conduct is a fundamental right, protected by the right to privacy because of the transcendental importance of sex to the human condition, the intimacy of the conduct, and its relationship to a person's[***52] right to control his or her own body.  The right is broad enough to include sexual acts between non-married persons and intimate consensual homosexual conduct.

   It has been said that 'privacy in the conventional sense (being left alone without anyone observing) is a generally accepted prerequisite to human sexual intercourse and the protection of sexual activity seems to be an important aspect of the constitutional right to privacy cases.' The right to be free from unwarranted governmental intrusions into one's privacy is fundamental." Onofre, 72 App. Div. 2d 268, 270-71, 424 N.Y.S.2d 566, 568 (1980) (citations omitted).
 
The New York Court of Appeals affirmed, stating that the right to privacy is
 
"a right of independence in making certain kinds of important decisions, with a concomitant right to conduct oneself in accordance with those decisions, undeterred by governmental restraint.  . . ."
 
[*393] That Court concluded:
 
"Because the statutes are broad enough to reach noncommercial, cloistered personal sexual conduct of consenting adults . . . we agree with defendants' contention that it violates . . . their right of privacy . . . ." Onofre, [***53]51 N.Y.2d at 485, 415 N.E.2d at 938, 939, 434 N.Y.S.2d at 949.

   [**585] In State v. Saunders, 75 N.J. 200, 203, 381 A.2d 333, 334 (1977), an accused male was convicted under a fornication statute of fornicating with two women in a deserted parking lot.  The Supreme Court of New Jersey held the statute unconstitutional, stating:

   "We conclude that the conduct statutorily defined as fornication involves, by its very nature, a fundamental personal choice.  Thus, the statute infringes upon the right of privacy. Although persons may differ as to the propriety and morality of such conduct and while we certainly do not condone its particular manifestations in this case, such a decision is necessarily encompassed in the concept of personal autonomy which our Constitution seeks to safeguard." Saunders, 75 N.J. at 213-14, 381 A.2d at 339.

   None of these courts has found a compelling state interest that would justify state regulation of private, consensual, sexual activity. More particularly, factors such as protecting the institution of marriage, upholding public morality by preventing illicit sex, preventing an increase in illegitimate children, preventing venereal disease, [***54] and preventing physical harm have been rejected as a sufficient basis for state regulation.  Pilcher, 242 N.W.2d at 359; Saunders, 75 N.J. at 217-20, 381 A.2d at 341-43; Onofre, 51 N.Y.2d at 487-92, 415 N.E.2d at 940-42, 434 N.Y.S. 2d at 951-53.

   The underlying rationale for this conclusion was stated in Saunders, 75 N.J. at 217-19, 381 A.2d at 341-42, as follows:

   [*394] "Perhaps the strongest reason favoring the law is its supposed relationship to the furtherance of the State's salutary goal of preventing venereal disease.  We do not question the State's compelling interest in preventing the spread of such diseases.  Nor do we dispute the power of the State to regulate activities which may adversely affect the public health. However, we do not believe that the instant enactment is properly designed with that end in mind.  First, while we recognize that the statute would substantially eliminate venereal diseases if it could successfully deter people from engaging in the prohibited activity, we doubt its ability to achieve that result.  The risk of contracting venereal disease is surely as great a deterrent to illicit sex as the maximum penalty under this act: [***55] a fine of $50 and/or imprisonment in jail for six months.  As the Court found in Carey, absent highly coercive measures, it is extremely doubtful that people will be deterred from engaging in such natural activities.  The Court there rejected the assertion that the threat of an unwanted pregnancy would deter persons from engaging in extramarital sexual activities.  We conclude that the same is true for the possibility of being prosecuted under the fornication statute.

   Furthermore, if the State's interest in the instant statute is that it is helpful in preventing venereal disease, we conclude that it is counter-productive.  To the extent that any successful program to combat venereal disease must depend upon affected persons coming forward for treatment, the present statute operates as a deterrent to such voluntary participation. The fear of being prosecuted for the 'crime' of fornication can only deter people from seeking such necessary treatment.

   We similarly fail to comprehend how the State's interest in preventing the propagation of [*395] illegitimate children will be measurably advanced by the instant law.  If the unavailability of contraceptives is not likely to [***56]deter people from engaging in illicit sexual activities, it follows that the fear of unwanted pregnancies will be equally ineffective.

   The last two reasons offered by the State as compelling justifications for the enactment -- that it protects the marital relationship and the public morals by preventing illicit sex -- offer little additional support for the law. Whether or not abstention is likely to induce persons to marry, this statute can in no way be considered a permissible means of fostering what may otherwise be a socially beneficial institution.  If we were to hold that the State could attempt to coerce [**586] people into marriage, we would undermine the very independent choice which lies at the core of the right of privacy. We do not doubt the beneficent qualities of marriage, both for individuals as well as for society as a whole.  Yet, we can only reiterate that decisions such as whether to marry are of a highly personal nature; they neither lend themselves to official coercion or sanction, nor fall within the regulatory power of those who are elected to govern." (Citations omitted).
 
A similar rationale was expressed in Onofre, 51 N.Y.2d at 490, 415 N.E.2d [***57]at 941-42, 434 N.Y.S.2d at 952, as follows:

   "In sum, there has been no showing of any threat, either to participants or the public in general, in consequence of the voluntary engagement by adults in private, discreet, sodomous conduct.  Absent is the factor of commercialization with the attendant evils commonly attached to the retailing of sexual pleasures; absent the elements of force or of involvement of minors which might constitute compulsion of unwilling participants or of those too young to make an informed choice, and absent too [*396] intrusion on the sensibilities of members of the public, many of whom would be offended by being exposed to the intimacies of others.  Personal feelings of distaste for the conduct sought to be proscribed by section 130.38 of the Penal Law and even disapproval by a majority of the populace, if that disapproval were to be assumed, may not substitute for the required demonstration of a valid basis for intrusion by the State in an area of important personal decision protected under the right of privacy drawn from the United States Constitution -- areas, the number and definition of which have steadily grown but, as the Supreme Court has [***58] observed, the outer limits of which it has not yet marked."

   The conclusion that States do not have a compelling interest in regulating private, consensual, sexual activity is further supported by the fact that Legislatures in at least 22 jurisdictions have decriminalized such activity between adults in private.  See Rivera, Our Straight-Laced Judges: The Legal Position of Homosexual Persons in the United States, 30 Hastings L.J., 799, 950-51 (1979). In addition, the American Law Institute Model Penal Code adopts the view that private, consensual, sexual activity should not ordinarily be subject to criminal sanction.  Model Penal Code § 213.2 (Proposed Official Draft 1962).  See Model Penal Code § 207.5, Comment (Tent. Draft No. 5, 1956).

   I am persuaded that the constitutionally-protected right to privacy includes the fundamental right to decide to engage and then to engage in private, consensual, sexual activity. I am further persuaded that there is no compelling State interest that justifies State regulation of such activity.  To the extent that Art. 27, § 554 in its present form regulates private, consensual, sexual activity, it unjustifiably interferes with[***59] a fundamental personal right.  Accordingly, I would hold it unconstitutional as applied to private, consensual, sexual activity.

   [*397] I do not agree with the majority that "the private nature of particular conduct in a given location for constitutional right of privacy purposes is a matter of degree determined by all of the circumstances." In my view, the majority here establishes a new standard for determining whether a given intimate act is to be afforded constitutional protection.  In essence, it determines that the nature of the conduct and the degree of privacy of the location are both factors to be taken into account and that the more intimate the conduct, the greater the degree of privacy required to afford constitutional protection to a given intimate act.  None of the cases relied upon by the majority articulates or utilizes the standard that the majority has designed.

   In my view, it is unnecessary and inappropriate to engage, as do my colleagues, in a series of judgmental evaluations as to which of an infinite variety of intimate acts requires a lesser or greater degree of privacy in order to be afforded constitutional protection.  Because any intimate act between [***60]consenting persons is to be afforded [**587] constitutional protection if it occurs in a private place, the nature of the intimate act is immaterial.  Rather, the appropriate standard for determining whether a given intimate act should be afforded constitutional protection is whether the persons engaging in that act, irrespective of its nature, have a reasonable expectation of privacy in the location in which the act is being performed.
 
   Upon my constitutionally-mandated, independent appraisal of the record, I find as a fact that the sexual activity of both Neville and Kelly occurred in a private place.  I agree with the majority that Neville and Kelly "chose for the intimate sexual activity a place which was out of doors, which was in a well populated community, and which was equally as accessible to any member of the public as it was to [Neville or Kelly]." There are other factors, however, that, in my view, must be taken into account in determining whether the place in which the sexual activity occurred was public or private.

   In Neville's case, the record shows that the site selected was a secluded spot located some distance away from the [*398] activity associated with [***61]an existing commercial center.  The site itself consisted of a very small clearing in a heavily wooded area overgrown with waist-high sticker bushes.  Although the clearing was only 10 to 15 feet away from the railroad tracks, it was at an elevation approximately four feet higher than the tracks so that the view from the tracks into the clearing was impeded.  The record further shows that while Neville and the female involved were in the clearing, two men from the rescue mission, walking down the tracks from the commercial center, came "within 15 feet" of the clearing. Yet there is nothing in the record to show that these people observed any of the sexual activity occurring in the clearing. Finally, the record shows that only one person, the police officer who made the arrest, observed the sexual activity. He testified that before Neville and the female involved entered the clearing, he had anticipated the place to which they might be going and had hidden himself in some nearby underbrush in order to witness the ensuing sexual activity.

   All of these facts indicate that it was highly unlikely that any passerby or casual observer could or would observe any sexual activity occurring[***62] within the clearing and that the site was, therefore, a private and not a public place. n4 Thus, Neville's choice of the site for the purpose of engaging undiscovered and undisturbed in intimate sexual activity was supported by a reasonable expectation of privacy.

n4 In my view, the trial court implicitly found that the site was a private, not a public place.  In Messina v. State, 212 Md. 602, 605, 130 A.2d 578, 579-80 (1957), this Court stated:
 
"'Indecent exposure in a public place in such a manner that the act is seen or is likely to be seen by casual observers is an offense at common law * * *. Ordinarily, * * * the place where the exposure is made must be public.  What constitutes a public place within the meaning of this offense depends on the circumstances of the case.  The place where the offense is committed is a public one if the exposure be such that it is likely to be seen by a number of casual observers * * *.'" Quoting 67 C.J.S., Obscenity § 5 (1955) (emphasis added).

   Here, the trial court's acquittal, by definition, had to be premised upon a finding that the site was not likely to be seen by casual observers, and, therefore, was private.  Indeed, the trial court further found that the site was private despite the fact that there was an eyewitness because that eyewitness was "required to virtually stalk the Defendant" and "was not a 'casual observer.'" I agree with the trial court's finding that the site was a private place.

   The majority concludes that Neville's acquittal of indecent exposure does not establish that the intimate act occurred in a place sufficiently private to be afforded constitutional protection.  In essence, the majority concludes that a place sufficiently private for performance of an act of indecent exposure is not sufficiently private for performance of an act of fellatio. The record is devoid of any factual, empirical, statistical, or psychological data to support that conclusion.  The circumstances here graphically illustrate the unnecessary difficulties inherent in the application of the majority's standard that requires a judgmental evaluation of the relative intimacy of given sexual acts, frequently in the absence of any supporting data.

[***63]

   [*399] In Kelly's case, the record shows that the site selected was a "secluded spot, far off [**588] the beaten path" located between one-fourth and one-half mile from the nearest paved road, one-fourth mile from the Rod and Gun Club, and one-half block through a wooded area to the nearest home.  The site itself consisted of the area surrounding a rusted-out shed on an abandoned missile site that was not visible from either the road or the home.  The record further shows that while Kelly, Holden, and the female involved were at the shed, children from the nearby home were searching the grounds of the Rod and Gun Club for a mislaid wallet.  Yet there is nothing in the record to show that these children observed any sexual activity occurring at the shed. Finally, the record shows that there were no eyewitnesses to the sexual activity. Indeed, in closing argument, the State conceded that the site was a private, not a public place, when it said:
 
"And as is the nature of the crime, where the crime takes place, it takes place in an isolated area, where there is little likelihood of being detected or seen."

   All of these facts indicate that it was highly unlikely that[***64] any passerby or casual observer could or would observe any sexual activity occurring within the site and that the site was, therefore, a private and not a public place.  Thus, Kelly's choice of the site for the purpose of engaging undiscovered and undisturbed in intimate sexual activity was supported by a reasonable expectation of privacy.

   Here there was evidence to show that Neville and Kelly engaged in private, consensual, sexual activity. The State [*400] failed to show that factors such as protection of individuals, especially children, control of venereal disease, maintenance of a citizenry that can function well in society, preservation of heterosexual marriage, and guarding the public morality constitute compelling State interests that justify State regulation of such activity.  Indeed, the conclusion that Maryland does not have a compelling interest in regulating private, consensual, sexual activity is supported by the fact that in 1976 in § 464A the Legislature established that a person is not guilty of a sexual offense in the second degree (perverted practice) if he engages in such activity with the consent of a person 14 years and older. n5

 n5 Art. 27, § 464A provides in pertinent part:

   "(a) . . . A person is guilty of a sexual offense in the second degree if the person engages in a sexual act with another person:

   (1) . . . without the consent of the other person.  . . .

   . . .

   (3) Under 14 years of age and the person performing the sexual act is four or more years older than the victim."

   Art. 27, § 461 (e) provides in pertinent part:
 
"'Sexual act' means cunnilingus, fellatio, analingus, or anal intercourse, but does not include vaginal intercourse."
 
Because cunnilingus, fellatio, analingus, or anal intercourse all involve perverted practices, a person is guilty of a sexual offense in the second degree only if the person engages in a nonconsensual, perverted practice.

[***65]

   Under these circumstances, Art. 27, § 554 which regulates private, consensual, sexual activity unjustifiably interfered with the fundamental personal rights of Neville and Kelly.  Therefore, I would hold it unconstitutional as applied to the private, consensual, sexual activity here. Accordingly, I would reverse. 

STATE OF MARYLAND v. WILLIAM JOSHUA LEONARD 
No. 117, September Term, 1980
 
Court of Appeals of Maryland
 
290 Md. 295; 429 A.2d 538; 1981 Md. LEXIS 224

 May  22, 1981, Decided

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals.  Circuit Court for  Anne Arundel  County, Childs, C. J.

DISPOSITION: Judgment of the Court of Special Appeals affirmed, with costs.

COUNSEL: Maureen O'Ferrall, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellant.

   Gary S. Offutt, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellee.

JUDGES: Murphy, C. J., and Smith, Digges, Eldridge, Cole, Davidson and Rodowsky, JJ.

OPINIONBY: PER CURIAM

OPINION: [*295] [**538] We granted certiorari in this case to consider whether the Court of Special Appeals correctly applied the principles of Carr v. State, 284 Md. 455, 397[***2] A.2d 606 (1979), when, in reversing Leonard's convictions, it concluded that the trial court had erred in not permitting Leonard's counsel to inspect a prior statement of a State's witness who had testified at the trial.  For the reasons set forth by Judge [*296] Wilner in Leonard v. State, 46 Md. App. 631, 421 A.2d 85 (1980), the judgment of the Court of Special Appeals is affirmed.

   Judgment of the Court of Special Appeals affirmed, with costs. 

STATE OF MARYLAND v. LAMONT WILLIAM RICKETTS, JAMES ANTHONYQUEEN, JR., GARY CLIFTON STUBBS, WILLIAM QUEEN, LOUIS DALLAS EVANS, ROBERTFRIEND, ROOSEVELT BUIE, WILLIAM HENRY LEASH, a/k/a Linfred William Leash andBARRETT BAILEY, a/k/a Walter Bailey 
No. 100, September Term, 1980
 
Court of Appeals of Maryland
 
290 Md. 287; 429 A.2d 1025; 1981 Md. LEXIS 225

 May  22, 1981, Decided

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals.  Circuit Court for  Anne Arundel  County, Goudy, J., and Criminal Court of Baltimore, Thomas, Kaplan, Perrott, Grady and Watts, JJ.

DISPOSITION: Judgments of the Court of Special Appeals affirmed.  Six-sevenths of costs to be paid by Baltimore City and one-seventh of costs to be paid by Anne Arundel County.

CORE TERMS:  election, jury trial, reasonable doubt, jurors, guilty beyond, full knowledge, order to convict, Maryland Rule, advise, elect, convicted, written form, recommendation, knowingly, reasonable doubt standard, concurring opinion, requires reversal, failure to advise, beyond a reasonable doubt, Rules of Practice, Criminal Law, guilt beyond, voluntarily waived, policy argument, proper remedy

COUNSEL: Stephen Rosenbaum, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, and Ray E. Stokes, Assistant Attorney General, on the brief, for appellant.

   Michael R. Braudes, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellees.

JUDGES: Murphy, C. J. and Smith, Digges, Eldridge, Cole, Davidson and Rodowsky, JJ.  Eldridge, J., delivered the opinion of the Court.  Murphy, C. J., and Rodowsky, J., concur in part and dissent in part.  Murphy, C. J., filed an opinion concurring in part and dissenting in part, [***3] at page 293 infra, in which Rodowsky, J., joins.

OPINIONBY: ELDRIDGE

OPINION: [*288] [**1025] This case is a consolidation of seven separate criminal cases in the Court of Special Appeals and in the trial courts, involving nine defendants.  The defendant Ricketts was convicted of larceny and a related offense in the Circuit Court for Anne Arundel County.  The remaining defendants were convicted of various offenses in the Criminal Court of Baltimore.  All seven trials were nonjury, with each defendant stating, in open court after an interrogation concerning the nature of and right to a jury trial, that he was waiving the right to be tried by a jury.

   The Court of Special Appeals reversed all of the convictions and remanded for new trials, holding that the purported waivers of jury trials did not comply with Maryland [**1026] Rule 735, as construed by this Court in Countess [*289]v. State, 286 Md. 444, 408 A.2d 1302 (1979). All of the cases involved the identical defect, namely the failure to advise each defendant that, in order to convict, all twelve jurors must find guilt beyond a reasonable doubt. In one of the cases, the Court of Special Appeals set forth its[***4] views in a published opinion by Judge Couch, with Judge Thompson dissenting, Ricketts v. State, 46 Md. App. 410, 418, 417 A.2d 465 (1980). The remaining six cases were decided in unreported opinions.

   The State then filed a single petition for a writ of certiorari encompassing all seven cases.  Because of the number of cases pending in the Court of Special Appeals involving the same question, we granted the petition.  We shall now affirm.

   Rule 735 b provides for a written form, to be signed by a criminal defendant, upon which he elects whether to be tried by the court or by a jury.  The form set forth in the Rule, inter alia, advises the defendant that he has a right to be tried by a jury of twelve persons or by the court, and that "before a finding of guilty in a jury trial all 12 jurors must find that I am guilty beyond a reasonable doubt." n1 Subsection c of the Rule authorizes an election in open court if there is no timely filed written election. Subsection d then provides that if [*290] there has been an election to be tried without a jury, the trial cannot proceed until the court determines that the defendant's election has been "with full knowledge of his right[***5] to a jury trial and that he has knowingly and voluntarily waived the right." n2

n1 Rule 735 b is as follows:

   "b. Form of Election.

   An election of a court or jury trial shall be in writing, signed by the defendant, witnessed by his counsel, if any, and filed with the clerk of the court in which the case is pending.  It shall be substantially in the following form:

   (caption of the case)
 
Election of Court Trial or Jury Trial
 
I know that I have a right to be tried by a jury of 12 persons or by the court without a jury.  I am aware that before a finding of guilty in a jury trial all 12 jurors must find that I am guilty beyond a reasonable doubt. I am aware that before a finding of guilty in a court trial the judge must find that I am guilty beyond a reasonable doubt.
 
I hereby elect to be tried by:

   . . .

   (insert 'the court' or 'a jury')
 
I make this election knowingly and voluntarily and with full knowledge that I may not be permitted to change this election. Witness:

. . .                                                                    . . .
Signature of Counsel                                    Signature of Defendant
                                                                  Date: . . ."

 

[***6] 

n2 Subsection d of Rule 735 states:

   "d. When Court Trial Elected.

   If the defendant elects to be tried by the court, the trial of the case on its merits before the court may not proceed until the court determines, after inquiry of the defendant on the record, that the defendant has made his election for a court trial with full knowledge of his right to a jury trial and that he has knowingly and voluntarily waived the right.  If the court determines otherwise, it shall give the defendant another election pursuant to this Rule."

   The Court's recent opinion in Countess v. State, supra, involved several defendants and presented several different questions under Rule 735.  One of the issues concerned the requirement in subsection d that the trial court determine that the defendant has made his election "with full knowledge of his right to a jury trial." In deciding what generally satisfies the "full knowledge" requirement, we looked to the written election form set forth in subsection b. The Court, in the majority opinion written by Judge Orth, stated (286 Md. at 455, emphasis supplied): [***7] 
 
"What the Rule contemplates is that the defendant have a basic understanding of the nature of a jury trial. We think that this understanding is generally satisfied when the defendant entitled to a jury trial knows that he has the right to be tried by a jury of 12 persons or by the court without a jury; that whether trial is by a jury or by the court, his guilt must be found to be beyond a reasonable doubt; that in a jury trial all 12 jurors must agree that he is so guilty but in a court trial the judge may so find.  These are the matters which the defendant acknowledges he is aware of in the written form of election set out in § b of the Rule in designating his election of court trial [**1027] or jury trial, and normally they should suffice.  We saw no need to go further [*291]when we adopted the Rule, and we see no need to add other matters now.  Ordinarily if the court duly determines that the defendant understands those aspects of a jury trial, he has, under the Rule, 'full knowledge of his right to a jury trial.'"
 
We reversed the conviction of one of the defendants, Fairbanks, specifically because "[t]he record is not sufficient to establish that[***8] he was aware that 'before a finding of guilty in a jury trial all 12 jurors must find that [he was] guilty beyond a reasonable doubt,' . . . ." 286 Md. at 461. n3

n3 Two judges in Countess concurred separately, but both agreed with the majority that under subsection d, the defendant must be advised that, to be convicted, all twelve jurors must find him guilty beyond a reasonable doubt. 286 Md. at 464 (concurring opinion of Cole, J.); id. at 465 (concurring opinion of Davidson, J.).  Chief Judge Murphy dissented as to one defendant, Countess, who had signed the written waiver form, believing that it was not necessary to advise a defendant in open court of the same specific information contained in the previously signed written form, id. at 470-474. However, as to the remaining defendants, Chief Judge Murphy agreed with the Court's disposition, id. at 470. Thus, the Court in Countess was unanimous in construing Rule 735 as requiring, at some stage, the defendant to be advised of the reasonable doubt standard.

[***9]

   A few days after our decision in Countess, we reversed the conviction in Hunt v. State, 286 Md. 541, 408 A.2d 392 (1979), on the authority of Countess.  A review of the record in that case, as the State concedes, shows that the only deficiency regarding compliance with Rule 735 was the failure of the record to show that the defendant had been advised that the jurors, in order to convict, must find him guilty beyond a reasonable doubt.

   In asking us to disapprove of Countess in part, and overrule Hunt, the State argues that because the "reasonable doubt" standard applies equally to a jury or a nonjury trial, there is no need to advise the defendant that the jurors must find him guilty beyond a reasonable doubt. The defendants, on the other hand, make a contrary policy argument. n4 We decline, however, to indicate any opinion at [*292] this time on the conflicting policy arguments made by each side.

n4 The defendants thus assert (brief, pp. 3-4):
 
"The concept of proof beyond a reasonable doubt is altogether different in jury trials than in court trials precisely because of the other attributes of a jury trial which Countess requires that a defendant understand.  A defendant in a jury trial avoids conviction if the evidence creates a reasonable doubt in the mind of one out of 12 people, whom he has a right to help select.  In a court trial, on the other hand, only one mind must be convinced of guilt beyond a reasonable doubt in order to convict. The reasonable doubt aspect of the jury protection therefore cannot be viewed in isolation.  It is critically important that the defendant understand the combination of characteristics which may render a jury trial more attractive than a court trial.  In a case where the evidence is substantial but inconclusive, for example, a defendant may well prefer 12 chances to create a reasonable doubt over a single chance.  Hence, removal of any of the elements listed in Countess substantially reduces the overall understanding vital to a knowing and intelligent waiver."

[***10]

   Subsection b of Rule 735 expressly requires that the defendant, in the written election form, acknowledge his awareness that the jurors are bound by the "reasonable doubt" standard.  As construed in Countess, this same requirement is included in the "full knowledge" language of subsection d.  The State in oral argument conceded that its position, that the requirement serves no purpose and should not be a condition for a valid jury trial waiver, is as equally applicable to subsection b as to subsection d.  Regardless of our views on the policy argument made by the State, we may not disregard the clear intent expressed in Rule 735.  As Judge Orth concluded for the Court in Countess (286 Md. at 463):
 
"Its [Rule 735's] provisions are mandatory.  On a number of occasions we have attempted to convey to bench and bar that our Rules 'are not guides to the practice of law but precise rubrics "established to promote the orderly and efficient [**1028] administration of justice and [that they] are to be read and followed." Brown v. Fraley, 222 Md. 480, 483 [, 161 A.2d 128] (1960).' State v. Bryan, 284 Md. 152, 155, 395 A.2d 475 (1978), quoting Isen v. Phoenix [***11] Assurance Co., 259 Md. 564, 570, 270 A.2d 476 (1970). In short, Rule 735 means what it says, and proceeding with the trials of the cases despite the failures to comply with its provisions requires reversal of the judgments of the trial courts and entitles the defendants to be newly tried."

   [*293] If a requirement, set forth in mandatory language in a valid statute or rule, is believed to be unnecessary or inadvisable, the proper remedy is not for judges to ignore the requirement.  Instead, the proper remedy under a government of laws is to seek a change in the statute or rule.  Rule 735 requires that a criminal defendant, in order to validly waive a jury trial in the circuit court, be advised that all twelve jurors are bound by the reasonable doubt standard. If this requirement is unnecessary (and we intimate no opinion on the issue now), this Court in its constitutionally authorized rule making capacity n5 or the General Assembly can change the Rule.  However, as long as the Rule remains unchanged, it must be followed. n6

n5 Maryland Constitution, Art. IV, § 18.

n6 This Court, acting on the recommendation of the Standing Committee on Rules of Practice and Procedure, adopted, effective July 1, 1977, a comprehensive revision of the rules applicable to criminal causes.  Recently we requested that Committee, and its subcommittee on criminal rules, to review the new criminal rules in light of the experience of the bench and bar over the past three-four years and to make recommendations for changes.  That review is currently taking place, and we are awaiting the Committee's recommendations. With respect to the necessity or desirability of the Rule 735 requirement involved in the instant case, the Attorney General's Office (representing the State in these cases) and the Public Defender's Office (which represented all defendants in these cases before this Court), as well as any other interested agencies or persons, should communicate their views to the Standing Committee on Rules of Practice and Procedure.

[***12]

   Judgments of the Court of Special Appeals affirmed.

   Six-sevenths of costs to be paid by Baltimore City and one-seventh of costs to be paid by Anne Arundel County.

CONCURBY: MURPHY (In Part)

DISSENTBY: MURPHY (In Part)

DISSENT:  
Murphy, C. J., concurring in part and dissenting in part:

   I agree with the Court that in those cases where no written election was made under Rule 735 b, Countess v. State, 286 Md. 444, 408 A.2d 1302 (1979), requires reversal of the convictions for failure to advise the defendant, as required by Rule 735 d, that in order to convict he must be found guilty beyond a reasonable doubt. I do not agree, however, [*294] that reversal is required in cases like Ricketts v. State, 46 Md. App. 410, 417 A.2d 465 (1980), where the accused personally executed the written election under Rule 735 b and thereby expressly acknowledged, among other things, that:
 
"I am aware that before a finding of guilty in a jury trial all 12 jurors must find that I am guilty beyond a reasonable doubt. I am aware that before a finding of guilty in a court trial the judge must find that I am guilty beyond a reasonable doubt."
 
As to such cases, I adhere to my dissenting[***13] view in Countess that because the written election constitutes part of the record before the trial judge, he may, in making the requisite Rule 735 d inquiry, "take into account the fact that the defendant has acknowledged in writing that he knew of his right to be tried by a jury of 12 persons, and was also aware that he could not be convicted unless all 12 jurors found him guilty beyond a reasonable doubt." 286 Md. at 472. Thus, in determining whether there was compliance with Rule 735 d, I would consider the substance of the information contained in the written election, together with the responses of the accused to the trial judge's in-court inquiry, and would not summarily reverse convictions without regard to the evidence of record contained in the written election form. 

LOLA ALICE KINDLEY et al. v. GOVERNOR OF MARYLAND et al. 
No. 155, September Term, 1979
 
Court of Appeals of Maryland
 
289 Md. 620; 426 A.2d 908; 1981 Md. LEXIS 195

 March  10, 1981, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Turk, J., pursuant to certiorari to the Court of Special Appeals.

DISPOSITION: Judgment of the Circuit Court for Anne Arundel County affirmed; appellants to pay the costs.

CORE TERMS:  abortion, indigent, budget, funding, appropriation, woman, medically, moot, medical care, Laws of Maryland, lump sum, pregnancy, fiscal year, regulation, nontherapeutic, health care, expended, administer, medically necessary, patient, Hyde Amendment, public funds, professional judgment, legislative intent, medical procedure, joint resolution, mental health, recurring, impermissibly, continuation

COUNSEL: John T. Enoch, with whom were Goodman, Meagher & Enoch on the brief, for appellants.

   Randall M. Lutz, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellees Governor of Maryland et al. Submitted on brief by Eileen Franch for appellees Doe et al.

JUDGES: Murphy, C. J., and Smith, Digges, Eldridge, Cole, Davidson and Rodowsky, JJ.  Cole, J., delivered the opinion of the Court.

OPINIONBY: COLE

OPINION: [*622] [**910] This case represents an attack on the right of the State of Maryland to provide funds for abortions performed on indigent and medically indigent women.

   Appellants, residents and taxpayers of Montgomery and Baltimore Counties, filed a bill in equity against various state officials, including the Governor, State Treasurer, Comptroller, and Secretary of Health and Mental Hygiene, seeking declaratory and injunctive relief to prevent the funding of abortions and to[***5] declare illegal the payment of funds for abortions for indigents for the fiscal year 1978 (July 1, 1977 -- June 30, 1978).

   Both appellants and appellees filed motions for summary judgment.  In a decision rendered on October 29, 1979, the Circuit Court for Anne Arundel County (Turk, J.) ruled that:

   1) Maryland Code (1957, 1971 Repl. Vol., 1977 Cum. Supp.), Art. 43, § 42 (a) (1), authorizing the Secretary of Health and Mental Hygiene to administer "a program of comprehensive medical and other care in the State for indigent and medically indigent persons," permits the funding of all abortions.

   2) The provision in the Budget Bill for Fiscal Year 1978 entitled "Medical Assistance Provider Reimbursements" was sufficient to permit the funding of all abortions for indigent persons.

   3) The provisions in the Budget Bill for Fiscal Year 1978 entitled "Medical Assistance Provider Reimbursements" was not a "lump sum" appropriation within the ambit of the Maryland Code (1957, 1976 Repl. Vol.), Art. 15A, § 12, requiring review of such appropriations by the Board of Public Works.

   4) Past and present regulations, adopted by the Department of Health and Mental Hygiene, were and are adequate to[***6] support State funding of abortions for indigents.

   [*623] Appellants noted an appeal to the Court of Special Appeals.  Prior to consideration by that court, this Court granted appellants' request for a writ of certiorari.

   The primary issue we must consider is whether and, if so, to what extent Art. 43, § 42 (a) (1) of the Maryland Code n1 authorizes the appropriation of public funds for abortions. The appellants ask us to read § 42 (a) (1) in light of the criminal abortion statute still intact at the time the section was enacted. They contend that even if [**911] § 42 can be read as permitting some abortions, only those abortions which were legal in 1967 belong to the permitted class.  Appellants also maintain that whatever else the term "comprehensive medical and other care" may be read to include, it should not be read to permit what appellants term nontherapeutic abortions.

n1 Maryland Code (1957, 1980 Repl. Vol.), Art. 43, § 42 (a) provides in part: 
 
§ 42. Medical care of the indigent -- In general.
 
(a) Administration of program; contracts with insurers, physicians, etc.; operation of hospitals; formulary system for drugs; use of generic drug having clinical equivalency.  -- (1) The Secretary of Health and Mental Hygiene shall administer a program of comprehensive medical and other care in the State for indigent and medically indigent persons, or either of those classes.
 
(2) (i) For this purpose, the Secretary may contract with insurance companies, nonprofit health service plans, or with individuals, associations, partnerships, incorporated or unincorporated groups of physicians, chiropractors, dentists, podiatrists, optometrists (as defined in § 372 of this article), pharmacists, hospitals, nursing homes, nurses, opticians, and other health practitioners duly licensed or certified in this State who perform services upon the prescription or referral of a physician, for the provision of care for eligible persons.  The contracts shall be for a one-year period and may be renewed.  Within the provisions of the budget the Secretary is authorized to provide for bedside nursing care for eligible persons.

[***7]

   The current version of Art. 43, § 42, was enacted as Chapter 688, Laws of Maryland, 1967.  The precursor to the present statute was enacted in 1945 as Chapter 91 of the Laws of Maryland. The 1945 version provided that the "Bureau of Medical Services, under the direction of the Director of Health, shall (1) administer a program of medical care in the State of Maryland for indigent and medically [*624] indigent persons.  . . ." In 1967 Maryland elected to participate in the federal Medicaid Program and broadened the language of § 42 to be consistent with the scope of that program.

   The Medicaid Program was established by Congress in 1965 as Title XIX of the Social Security Act, a cooperative federal-state effort to provide a broad range of health care services to the indigent and medically indigent. Among others, preventive, rehabilitative, and screening services were originally provided; now family planning services are included as well.  42 U.S.C.A. §§ 1396-1396k (1974, 1980 Supp.).  Accordingly, the General Assembly amended § 42, providing in part, that "The State Board of Health n2 shall (1) administer a program of comprehensive medical and other care in the State[***8] of Maryland for indigent and medically indigent persons . . ." (emphasis supplied.)

n2 "The Secretary of Health and Mental Hygiene" has been substituted for the "Board of Health" in the current form of the statute.

   At the time of the 1967 amendments to § 42, any abortion, even by a licensed physician, was a criminal offense, except where the fetus was dead or the physician, after consultation with one or more physicians, was "satisfied . . . that no other method [would] secure the safety of the mother." Maryland Code 1957, 1967 Repl. Vol.), Art. 27, § 3 (repealed by Chapter 470, Laws of Maryland, 1968).

   Appellants have requested that we define the term "safety of the mother" in the criminal statute and limit the abortions which may be funded under § 42 to those which were legal under criminal law as it existed in 1967.  The appellants contend that only those abortions, if any, could have been intended to be covered by the General Assembly when it enacted § 42.  We find appellants' contention to be without[***9] merit.  First we note that § 42 mentions neither abortions nor any other specific medical procedure. It is phrased in broad and general terms clearly designed to permit indigent persons to receive the advantages of whatever health care may be presently accepted as appropriate in the medical community.  To accept appellants' contention would require [*625]the absurd result of precluding from coverage any medical procedure which may not yet have been developed, in general use, or legal as of 1967. Thus indigent persons would be denied the benefits of the latest technological advances as well as medicines which may have been in existence in 1967 but were then illegal because their safety or the propriety of their use had not yet been determined.

   It is true that in endeavoring to ascertain legislative intent we may consider the circumstances existing and events occurring at the time of the statute's passage, Mackie v. Town of Elkton, 265 Md. 410, 415, 290 A.2d 500 (1972); however, we must consider also that our laws are addressed to the future.  Where, as here, a statute is phrased in broad general terms, it suggests that the legislature intended the provision to be capable[***10] of encompassing circumstances and situations which did not exist at the time of its enactment.  2A A. Sutherland, Statutes and Statutory Construction § 49.01 (4th ed. C.D. Sands 1973) (hereinafter cited as Sutherland).

   In addition, we have said that a construction of a statute which is "unreasonable, [**912] illogical or inconsistent with common sense should be avoided." Comptroller v. John C. Louis Co., 285 Md. 527, 539, 404 A.2d 1045 (1979); accord, State v. Berry, 287 Md. 491, 413 A.2d 557 (1980); Board v. Stephans, 286 Md. 384, 408 A.2d 1017 (1979); Harbor Island Marina v. Calvert Co., 286 Md. 303, 407 A.2d 738 (1979). To freeze the scope of funded health care under § 42 to that available in 1967 would lead to just such a result.  It would require that we indulge a presumption that the legislature intended to provide indigents with a system of second rate care. n3

n3 Appellants cite two cases said to stand for the proposition that the scope of Medicaid funding authorization should be read in light of the criminal abortion statute still intact at the time the spending authorization was enacted.  Roe v. Norton, 522 F.2d 928 (2d Cir. 1975); Roe v. Ferguson, 515 F.2d 279 (6th Cir. 1975). These cases afford appellants scant support.  At issue was whether the respective states were required to fund certain abortions as a condition of participation in the Medicaid program.  The issue before us is whether the language of the state statute is broad enough to permit the General Assembly to fund abortions, should it choose to do so.  Moreover, in Roe v. Norton, supra at 932, the court recognized that the states were free to fund all abortions if they desired, as there was no clear basis for determining that such action would be inconsistent with the broad objectives of the act.  Roe v. Ferguson, supra at 283, as well, acknowledges that the states have the freedom to decide.

[***11]

   [*626] Having concluded that the meaning of "medical and other care" cannot be interpreted solely in light of treatment available in 1967, we turn to the more difficult task of ascertaining the proper construction.  Appellants maintain that whatever else may be within the ambit of "medical and other care," so-called nontherapeutic or elective abortions must be excluded.

   The phrase "medical and other care" does not on its face suggest such a limitation in intended coverage.  Our research has revealed neither committee reports nor any other legislative history which would allow us to discern with certainty the intent of the legislature.  In such a situation the correct approach is to presume a reasonable intent on the part of the legislature.  2A Sutherland § 45.12.  Sutherland also lays down the guiding principle for determining what is a reasonable construction of legislation for relief of the poor:
 
"The care of the state for its dependent classes is considered by all enlightened people as a measure of its civilization, and provisions for the proper care and treatment at public expense of the indigent sick, and of those who for other reasons are unable to take[***12] care of themselves, is said to be among the unquestioned objects of public duty." Therefore, statutes enacted in fulfillment of this recognized public obligation should at all times be liberally interpreted so that the undesirable social effect resulting from the neglect of the poor may be eliminated.  [3 Sutherland § 71.08, quoting Jones v. Cooney, 81 Mont. 340, 263 P. 429, 430 (1928).]

   In our view § 42 was enacted to alleviate some of the hardships of poverty by providing medical care to those who could not afford it.  See Maher v. Roe, 432 U.S. 464, 469-70, 97 S. Ct. 2376, 53 L. Ed. 2d 484 (1977). These hardships include not only the discomfort of heightened severity or [*627] duration of an untreated condition, but the sociological and economic problems which flow directly from inadequate medical care. In addition, the legislature may well regard medical care of a preventive and planning nature as important as providing curative treatment for existing illness.  The importance of such services was explicitly recognized by Congress when it amended the Medicaid program to include "family planning services" among the types of care which the participating states[***13] are now required to fund.  42 U.S.C.A. 1396d (a) (4) (C).  Apparently Congress recognized that health care which is not medically necessary to treat a clinically diagnosable illness may still be deemed not only socially desirable but necessary to the well being of the patient, his family and society.  In sum, defining medical care narrowly is inconsistent with reasonable statutory construction.

   It is in this light that we consider the extent to which § 42 permits the appropriation of funds for abortions. In 1973, the [**913] United States Supreme Court struck down criminal statutes prohibiting abortions at every stage of pregnancy except to save the life of the mother as violative of the constitutional right to privacy.  Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). Among other things, the Court held that "[f]or the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to [the discretion of the pregnant woman and] the medical judgment of the pregnant woman's attending physician." 410 U.S. at 164.

   The Court recognized what appellants would have us ignore: that there may exist compelling[***14] reasons, other than the risks of physical or mental illness, which may cause the woman and her physician to determine that abortion is appropriate.  These may be of an economic, familial, sociological, or emotional nature.  Justice Blackmun, speaking for the Supreme Court in Roe v. Wade, acknowledged the breadth of such considerations:
 
Specific and direct harm medically diagnosable even in early pregnancy may be involved.  Maternity, [*628] or additional offspring, may force upon the woman a distressful life and future.  Psychological harm may be imminent. Mental and physical health may be taxed by child care.  There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it.  In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved.  All these are factors the woman and her responsible physician necessarily will consider in consultation.  [410 U.S. at 153.]

   A pregnant woman is unquestionably a person for whom medical care is appropriate and an abortion is certainly[***15] one of the medical alternatives for dealing with pregnancy. As we concluded in Bayne v. Secretary of State, 283 Md. 560, 575-76, 392 A.2d 67 (1978), "A program of comprehensive medical care for indigent and medically indigent persons is an established primary function of the State.  . . . Abortions are a proper aspect of the program at the instance of the legislature."

   It is for the woman and her physician, considering all factors relevant to her present and future well-being, to determine what medical procedure is necessary.  The very heart of Roe v. Wade was that the physician and patient should have the freedom to choose the nature of the medical services to be rendered.  Nothing in the Supreme Court's subsequent decisions involving abortion funding has altered this premise.  These decisions have held only that the states are not required to fund either nontherapeutic abortions, Maher v. Roe, supra (construing statutory conditions of participation); Beal v. Doe, 432 U.S. 438, 97 S. Ct. 2366, 53 L. Ed. 2d 464 (1974) (applying equal protection clause), or medically necessary abortions for which federal reimbursement is unavailable, n4 Harris v. McRae,[***16] [**914] 448 U.S. 297, [*629] 100 S. Ct. 2671, 65 L. Ed. 2d 784 (1980). Yet the courts have consistently recognized that both the federal and state governments were free, if they so desired, to fund abortions, including so-called nontherapeutic abortions, under the Medicaid Program.  Maher v. Roe, supra, 432 U.S. at 480; Beal v. Poe, supra, 432 U.S. at 447; Preterm, Inc. v. Dukakis, 491 F.2d 121, 134 (1st Cir. 1979); Roe v. Norton, 522 F.2d 928, 932 (2d Cir. 1975); see Note, Limiting Public Funds for Abortions: State Response to Congressional Action, 13 Suffolk L. Rev. 923 (1979). What the courts and commentators have recognized is that the language of Title XIX makes no reference at all to any type of abortion, but that the funding of nontherapeutic abortions, if implemented by Congress or the several states, would not be inconsistent with the broad objectives of the Medicaid Program. n5

n4 Since September 1976, Congress has prohibited -- either by amendment to the annual appropriations bill for the Department of Health, Education and Welfare or by joint resolution -- the use of federal funds to reimburse the cost of abortions under Medicaid except under certain specified circumstances.  This funding restriction is commonly known as the "Hyde Amendment", after its original congressional sponsor, Representative Henry J. Hyde.  The current version of the Hyde Amendment, applicable to fiscal year 1981, provides:
 
Notwithstanding any other provision of this joint resolution except section 102, none of the funds made available by his joint resolution for programs and activities for which appropriations would be available in H.R. 7998, entitled the Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriation Act, 1981, as passed the House of Representatives on August 27, 1980, shall be used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term; or except for such medical procedures necessary for the victims of rape or incest, when such rape or incest has been reported within forty-eight hours to a law enforcement agency or public health service; nor for payments prohibited for drugs or devices to prevent implantation of the fertilized ovum, or for medical procedures necessary for the termination of an ectopic pregnancy: Provided however, That the several States are and shall remain free not to fund abortions to the extent that they in their sole discretion deem appropriate.  [Pub. L. No. 96-369, § 110, 94 Stat. 1356.]
[***17] 

n5 Of course the various "Hyde Amendment" restrictions (supra n. 4) have precluded the states from receiving federal money for abortions other than those specified.

   It is in a similar vein that we view Art. 43, § 42.  There is no reasonable basis to conclude that a program of "comprehensive medical and other care . . . for indigent and medically [*630] indigent persons" implies the exclusion of funding for any abortion which the woman and her physician determine to be in her best interest.  The statute reflects a broad legislative intent to ameliorate, as far as practicable, the many and varied consequences of inadequate or nonexistent medical care which are the lot of the poor.

   Finally we wish to make it abundantly clear that nothing in our opinion today suggests that the State is required to fund any abortion. As Justice Powell said for the Supreme Court in Maher v. Roe, supra, 432 U.S. at 479, "[W]hen an issue involves policy choices as sensitive as those implicated by public funding of nontherapeutic abortions, the appropriate forum for their resolution in a democracy[***18] is the legislature." Through its authority to appropriate funds in the yearly budget bill, the General Assembly is free to limit the conditions under which public funds may be expended for abortions. Indeed it has chosen to do so in the last three budget bills. n6 Clearly the General Assembly has not been denied the opportunity to wrestle with the conflicting value judgments, emotional considerations, and diverse opinions with which the abortion controversy is fraught.

n6 Chapter 518, Laws of Maryland, 1980.  Chapter 86, Laws of Maryland, 1979. Chapter 44, Laws of Maryland, 1978.

   II

   Appellants next contend that the various state officials illegally expended funds for abortions during the 1978 fiscal year because no funds for abortions were legally appropriated by the General Assembly in the Fiscal Year 1978 Budget Bill.  Chapter 154, Laws of Maryland, 1977.  More specifically, appellants claim a violation of Art. III, § 32 of the Maryland Constitution, which provides in part:

   No money shall be drawn from[***19] the Treasury of the State, by any order or resolution, nor except in accordance with an appropriation by Law, and every such Law shall distinctly specify the sum appropriated, and the object, to which it shall be applied.  . . .

   [*631] At the outset, we note that this question is moot. The fiscal year 1978 Budget Bill is no longer in effect and appellants have requested no economic remedy with respect to funds previously spent.  We recently stated in Attorney Gen. v. A.A. Co. School Bus, 286 Md. 324, 327, 407 A.2d 749 (1979), that "[g]enerally, appellate courts do not decide academic or moot questions.  A question is moot if, at the time it is before the court, there is no longer an existing controversy between the parties, so that there is no longer any effective remedy which the court can provide." Yet, even [**915] where a question is technically moot, if the issue is recurring, likely to be raised again, and involves a matter of important public concern, the Court may decide the matter.  Reyes v. Prince George's County, 281 Md. 179, 300 n. 18, 380 A.2d 12 (1977); Lloyd v. Supervisors of Elections, 206 Md. 36, 43, 111 A.2d 379 (1954); see Hayman v. [***20]  St. Martin's, 227 Md. 338, 343, 176 A.2d 772 (1962); Attorney Gen. v. A.A. Co. School Bus, supra at 330-34 (Smith, J., dissenting).  In this case, however, the Budget Bills for fiscal years 1979, 1980, and 1981 all expressly provided, within the "Medical Assistance Provider Reimbursements" item, that no funds were to be used for abortions except under certain specified circumstances which were set out in detail therein. n7 We conclude, therefor, that the circumstance as described by the appellants is not a recurring one and the issue is moot.

n7 The current Budget Bill, Chapter 518, Laws of Maryland, 1980, provided in part in item 32.01.05.03:
 
provided that no part of this General Fund Appropriation may be paid, to any physician or surgeon or any hospital, clinic or other medical facility for or in connection with the performance of any abortion, except upon certification by a physician or surgeon, based upon his or her professional judgment that the procedure is necessary, provided one of the following conditions exist:
 
where continuation of the pregnancy is likely to result in the death of the woman;
 
or where the woman is a victim of rape, sexual offense, or incest which has been reported to a law enforcement agency or a public health or social agency;
 
or where it can be ascertained by the physician with a reasonable degree of medical certainty that the fetus is affected by genetic defect or serious deformity or abnormality;
 
or where it can be ascertained by the physician with a reasonable degree of medical certainty that termination of pregnancy is medically necessary because there is substantial risk that continuation of the pregnancy could have a serious and adverse effect on the woman's present or future physical health;
 
or before an abortion can be performed on the grounds of mental health there must be certification in writing by the physician or surgeon that in his or her professional judgment there exists medical evidence that continuation of the pregnancy is creating a serious effect on the woman's present mental health and if carried to term there is substantial risk of a serious or long lasting effect on the woman's future mental health; and to the extent that such provisions are unconstitutional or impermissible under applicable Federal law pursuant to decisions of the United States Supreme Court they shall not apply.

[***21]

   [*632] III

   Appellants next contend that the expenditure of funds for abortions from the Medical Assistance Provider Reimbursement item in the fiscal year 1978 budget was illegal because such appropriation is a "lump sum" within the meaning of Maryland Code (1957, 1976 Repl. Vol.), Article 15A, § 12.  That section provides:

   In any other case where a lump sum is appropriated to any State department, board, commission, officer or institution, such department, board, commission, officer or institution shall be required to submit to the Board of Public Works within ninety days following the adjournment of the General Assembly, a detailed budget schedule in the usual form, showing the proposed apportionment and disbursement of such lump sum appropriation by such department, board, commission, officer, or institution.  No part of such lump sum appropriation may be expended unless and until such budget schedule is approved by the Board of Public Works.

   We find that item 32.01.05.03 is not a lump sum within the purview of § 12. The mere fact that the budget item, itself, does not identify the myriad of services and procedures for which providers are entitled to reimbursement [***22]does not convert the appropriation into a lump sum. In any event, the question is moot for reasons previously set forth.

   [*633] IV

   Finally, appellants contend that prior to January 11, 1978, the Appellee, Secretary of Health and Mental Hygiene, illegally expended funds for abortions because prior to that date the Secretary's own [**916] regulations were not adequate to permit such funding. They also contend that regulations thereafter adopted were void in that they impermissibly delegated to a private citizen (the physician) the right to determine his own eligibility to claim public funds. n8

n8 The current regulation, C.O.M.A.R. 10.09.02.04G, may be found at 7 Md. Reg. 1588-89 (August 8, 1980).

   Appellant's contention with regard to funds expended prior to January 11, 1978, is clearly moot. Nor does their second argument require substantial analysis.  Each year since 1978, the Secretary of Health and Mental Hygiene has adopted regulations to reflect the restrictions on abortion funding contained [***23]in the yearly budget bill.  In general these regulations require that the physician certify that one of the specified conditions exist.  This procedure, say appellants, impermissibly delegates to the physician the power to determine his own eligibility for public funding.

   The short answer to appellants' contention is that the budget bill enacted by the legislature expressly requires that the decision be a professional judgment on the part of the physician.  Necessarily, we find the regulations consistent with the budget bill.  Appellants' view that leaving the judgment in this matter to the financially interested treating physician is impermissible is peculiarly inconsistent with society's notions of the responsibilities of the medical profession.  Generally, doctors are encouraged by society's expectations, by the strictures of malpractice law and by their own professional standards to give their patients such treatment as is appropriate.  Moreover, if the physician fraudulently abuses his responsibility, there are administrative, judicial, and intra-professional remedies available.  See C.O.M.A.R. 10.09.02.09.  Indeed, whether a particular operation is indicated is a judgment[***24] that physicians are [*634] obviously called upon to make routinely whenever non-emergency surgery is considered.

   For the foregoing reasons, the court below was correct in denying the appellants the relief requested.

   Judgment of the Circuit Court for Anne Arundel County affirmed; appellants to pay the costs. 

ROBERT H. CAMPBELL et ux. v. THE MAYOR AND ALDERMEN OF THECITY OF ANNAPOLIS 
No. 3, September Term, 1980
 
Court of Appeals of Maryland
 
289 Md. 300; 424 A.2d 738; 1981 Md. LEXIS 169

 January  16, 1981, Decided

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals.  Circuit Court for  Anne Arundel  County, Williams, J.

DISPOSITION: Judgment of the Court of Special Appeals reversed in part, and case remanded to that court with instructions to reverse the judgment of the Circuit Court for Anne Arundel County and remand the case for entry of a judgment not inconsistent with this opinion.  Respondent to pay costs.

CORE TERMS:  license fee, municipality, municipal, license, authorization, charter, licensing, levy, inspection, franchise tax, revenue-raising, dwelling, voter, residential rental, license fees, rental, occupation, expressly authorized, political subdivision, levying, ordinance, fee imposed, local legislation, general power, enact, regulating, engineer, supplied, rooming, invalid

COUNSEL: Theodore G. Bloom, with whom were Goodman, Bloom & Cohen on the brief, for appellants.

   Richard G. Anderson, City Attorney, and Richard T. Wright, Assistant City Attorney, with whom was Roger A. Perkins, Assistant City Attorney, on the brief, for appellee.

JUDGES: Murphy, C. J., and Smith, Digges, Eldridge, Cole, Davidson and Rodowsky, JJ.  Eldridge, J., delivered the opinion of the Court.

OPINIONBY: ELDRIDGE

OPINION: [*301] [**739] The issue in this case concerns the validity of a license fee imposed by an incorporated municipality upon operators of residential rental units, in light of restrictions imposed by Article XI-E, § 5, of the Maryland Constitution.

   Article XI-E, § 5, provides that no municipality "shall levy any type of tax, license fee, franchise tax or fee" not in effect on January 1, 1954, unless the General[***4] Assembly gives "express authorization" for the tax or fee. n1

n1 The complete text of the pertinent portion of Art. XI-E, § 5, of the Maryland Constitution is as follows:
 
"No such municipal corporation shall levy any type of tax, license fee, franchise tax or fee which was not in effect in such municipal corporation on January 1, 1954, unless it shall receive the express authorization of the General Assembly for such purpose, by a general law which in its terms and effect applies alike to all municipal corporations in one or more of the classes provided for in Section 2 of this Article."

   [*302] Subsequent to 1954, the City of Annapolis enacted a scheme for the regulation and licensing of rental dwellings. Included in this regulatory plan is a provision for inspections by city officials to determine whether rental units comply with city ordinances. Annapolis City Code, § 12-9. n2 Section 12-16 of the Annapolis City Code provides for licensing residential rental units, including an annual license[***5] fee of ten dollars per unit. n3

n2 Section 12-9 states in relevant part:

   "Inspection and access to dwellings; notice of violations.

   "The city engineer and the city health officer, or their duly authorized representatives, are hereby authorized and directed to make inspections of dwellings, dwelling units, rooming units and premises located within the city to determine whether the conditions of the same comply with the provisions of this article.  The owner or occupant of every dwelling, dwelling unit and rooming unit, or the person in charge thereof, shall, upon proper identification being made, give to the city engineer or the health officer, or their duly authorized representatives, free access to the premises and all parts thereof, at all reasonable times, for the purposes of such inspection, examination and survey."

n3 The relevant portions of § 12-16 are:

   "Licensing of operation of certain dwellings and rooming houses.

   "(a) No person shall operate a single rental dwelling unit, multiple dwelling or rooming house unless he holds a current, unrevoked operating license issued by the city clerk, after the application for said license shall have been approved by the city engineer, with the concurrence of the health officer, in his name for the specific named dwelling or rooming house.

   * * *

   "(f) The operating license fee shall be ten dollars ($10.00) annually, per dwelling unit which shall be payable in advance of issuance of the license or renewal thereof."

[***6]

   Petitioners Robert H. Campbell and Annie Jane Campbell own and operate certain [**740] residential rental units located in Annapolis, but they refused to obtain an operator's license as required by § 12-16.  The Mayor and Aldermen of Annapolis sought a mandatory injunction in the Circuit Court for Anne Arundel County, requiring that the Campbells comply with the licensing provisions of § 12-16 and permit access to the properties for inspections pursuant to § 12-9.  The Campbells responded by asserting that the licensing provisions in § 12-16 of the City Code were invalid on three grounds: (1) they unreasonably discriminated against owners of residential rental property in violation of the Fourteenth [*303] Amendment; (2) they were not authorized by the Annapolis City Charter; and (3) they violated Art. XI-E, § 5, of the Constitution of Maryland, which prohibits municipalities from levying "any type of tax, license fee, franchise tax or fee" without express authorization from the Legislature.  The case was submitted to the circuit court upon the pleadings and a stipulation of facts, which disclosed that the dispute between the parties related solely to the validity of[***7] the § 12-16 licensing plan.  There was no indication that the City had ever sought to conduct § 12-9 inspections or that the Campbells had refused a request to conduct inspections.

   In a memorandum opinion, the circuit court held that the City of Annapolis was entitled to the requested injunctive relief.  The court ruled that the City Charter contained broad police powers, including the authority to enact the licensing scheme.  Defendants' Fourteenth Amendment equal protection argument was rejected because the court found a rational basis for the City's treating rental housing differently than other real property.  As to the Campbells' challenge to § 12-16 on state constitutional grounds, the court assumed that Art. XI-E, § 5, of the Maryland Constitution required authorization by the General Assembly of the license fee imposed by § 12-16, since that ordinance had been enacted subsequent to January 1, 1954.  The court found the necessary legislative authorization in Maryland Code (1957, 1973 Repl. Vol., 1980 Cum. Supp.), Art. 23A, § 2, together with Art. 23B, § 22 (33).  Section 2 of Art. 23A grants municipalities the general power to pass ordinances for the "preservation and[***8] promotion of the health, recreation, welfare and enlightenment of its inhabitants." Art. 23B is a model charter for incorporated municipalities, and § 22 (33) of that charter relates to licensing and regulating schemes and the collection of license fees. The court made no findings regarding the purpose of the annual license fee imposed by § 12-16 (f).  Thereafter, an injunction issued ordering the Campbells to procure operating licenses for the rental units they owned and to allow city agents access to the rental premises to conduct inspections pursuant to § 12-9.

   [*304] The Campbells appealed to the Court of Special Appeals, challenging both the trial court's holding that the license fee provision of § 12-16 (f) does not violate Art. XI-E, § 5, of the Maryland Constitution, and that portion of the injunction ordering allowance of § 12-9 inspections of the rental premises.  The Campbells did not pursue their claims that the City lacked charter authority to enact a licensing scheme or that the scheme is invalid under the Equal Protection Clause of the Fourteenth Amendment.

   The Court of Special Appeals upheld the validity of the § 12-16 license fee on different grounds[***9] than those of the trial court.  Campbell v. City of Annapolis, 44 Md. App. 525, 409 A.2d 1111 (1980). The intermediate appellate court held that Art. XI-E, § 5, only prohibits the levy of a license fee without General Assembly authorization if the primary purpose of the fee is to raise revenue, and that a fee imposed as part of a regulatory scheme is not covered by § 5.  The Court of Special Appeals found that the fee imposed by § 12-16 (f) was part of a regulatory plan and was not for the purpose of raising revenue.  Thus, under that court's interpretation of Art. XI-E, § 5, the license fee did not require the General Assembly's authorization. The Court of Special Appeals, consequently, did not reach the question of whether the State Legislature had authorized the fee.  The court did overturn that part of the injunction which [**741]ordered the Campbells to permit § 12-9 inspections, on the ground that there was no evidence that the City had ever requested or the Campbells refused such inspections.

   This Court granted the Campbells' petition for a writ of certiorari, which presented only their contention that the license fee imposed upon residential rental dwellings[***10] by § 12-16 (f) of the Annapolis City Code violates Art. XI-E, § 5, of the Maryland Constitution.  No cross-petition for certiorari was filed by the City of Annapolis.

   I.

   Historically, for some purposes, cases have recognized a distinction between governmental charges that are essentially [*305] revenue-raising and those that are primarily part of a regulatory scheme.  Anne Arundel County v. English, 182 Md. 514, 520, 35 A.2d 135 (1943); see American Nat'l v. M. & C.C., 245 Md. 23, 30, 224 A.2d 883 (1966). While statutory language may be indicative of the nature of a charge, e.g., "tax" generally refers to a revenue-raising measure, the purpose of the enactment governs rather than the legislative label.  See Theatrical Corp. v. Brennan, 180 Md. 377, 381-382, 24 A.2d 911 (1942). Assuming the necessity in certain contexts for drawing the distinction, in our view there is no reason in this case for us to decide whether the fee imposed by § 12-16 (f) of the Annapolis City Code is primarily revenue-raising or is primarily for a regulatory purpose.  In either event, it is within the ambit of the constitutional restriction.

   Article XI-E, § 5, of the Maryland Constitution[***11] prohibits a municipality from levying "any type of tax, license fee, franchise tax or fee," unless the charge is expressly authorized by the General Assembly, or was in effect prior to January 1, 1954.  By use of the words "tax" and "license fee" individually, and further use of "franchise tax or fee," the constitutional language shows an intention to encompass both revenue-raising and regulatory levies. The phrase "any type" underscores this intention.  The construction of Art. XI-E, § 5, by the Court of Special Appeals is at odds with the plain language of the Constitution.  The language employed is all-encompassing, negating the distinction drawn by the Court of Special Appeals.
 
   The history of Art. XI-E, § 5, confirms that the restriction was intended to embrace all license fees regardless of purpose.  In June 1952, the Commission on Administrative Organization of the State, known as the "Sobeloff Commission," n4 submitted its second interim report on local legislation in Maryland.  At that time "[l]ocal legislation ma[de] heavy demands on the time and energy of members [*306] of the General Assembly," because localities had little power to legislate for themselves. [***12] Local Legislation in Maryland, Commission on Administrative Organization of the State 1 (2d Rep. 1952).  The Sobeloff Commission recommended two constitutional amendments to help alleviate the diversion of state legislative energies into local legislation, as well as to help instill greater flexibility and responsibility in local governments.  Id. at 2-3.  One of the Commission's recommendations provided the basis for what is now Article XI-E of the Maryland Constitution.  The Sobeloff Commission proposed that "the Constitution be amended to prohibit State enactment of local legislation relating to municipalities, except for maximum limits on local property taxes and debt." Id. at 3.  Section 5 of Article XI-E, as suggested by the Commission, is as follows (id. at 52-53):

   "Notwithstanding any other provision in this Article, the General Assembly may enact, amend, or repeal local laws placing a maximum limit on the rate at which property taxes may be imposed by any municipal corporation and regulating the maximum amount of debt which may be incurred by any municipal corporation. However, no such local law shall become effective in regard to a municipal corporation[***13] [**742] until and unless it shall have been approved at a regular or special municipal election by a majority of the voters of that municipal corporation voting on the question.  All charter provisions enacted under the authority of Section 3 of this Article shall be subject to any local laws enacted by the General Assembly and approved by the municipal voters under the provisions of this section."

n4 The popular name of the Commission comes from its first chairman, Simon E. Sobeloff, who shortly thereafter became Chief Judge of this Court and later became Chief Judge of the United States Court of Appeals for the Fourth Circuit. 

   Based on this history, the City of Annapolis argues that the Sobeloff Commission's purpose, of limiting General Assembly involvement in municipal legislation to tax and debt matters, must be inferred when construing the language of Article XI-E, § 5.  This position might have some merit if the Sobeloff Commission's draft of § 5 had been adopted as proposed.  However, an examination[***14] of how the [*307] Commission's draft was changed by the Legislature refutes the City's argument.  While the Legislature adopted much of the Commission's suggested draft when proposing Article XI-E for voter ratification, two substantial alterations were made.  See Chapter 53 of the Acts of 1954.  One change was the addition of language to § 6 restricting the authority of municipalities over alcoholic beverages and "observance of the Sabbath day." The other change involved the language at issue in this case, which was added to § 5.  That section, as amended by the General Assembly and adopted by the voters, is as follows (with additions and changes made by the Legislature in italics):

   "Notwithstanding any other provision in this Article, the General Assembly may enact, amend, or repeal local laws placing a maximum limit on the rate of which property taxes may be imposed by any such municipal corporation and regulating the maximum amount of debt which may be incurred by any municipal corporation.  However, no such local law shall become effective in regard to a municipal corporation until and unless it shall have been approved at a regular or special municipal election[***15] by a majority of the voters of that municipal corporation voting on the question.  No such municipal corporation shall levy any type of tax, license fee, franchise tax or fee which was not in effect in such municipal corporation on January 1, 1954, unless it shall receive the express authorization of the General Assembly for such purpose, by a general law which in its terms and its effect applies alike to all municipal corporations in one or more of the classes provided for in Section 2 of this Article.  All charter provisions enacted under the authority of Section 3 of this Article shall be subject to any local laws enacted by the General Assembly and approved by the municipal voters under the provisions of this section."

   [*308] Thus, the only substantive changes from the Sobeloff Commission's draft of Article XI-E, that were adopted by the Legislature and ratified by the voters, impose restrictions on the power of municipalities beyond those suggested by the Commission.  The purpose of the legislative changes was to further restrict, not extend, municipal authority.  Although the § 5 restriction on municipal authority contained in the Commission's draft was limited [***16]to revenue-raising matters, the General Assembly's modification broadened that restriction to "any type of tax, license fee, franchise tax or fee which was not in effect . . . on January 1, 1954."

   Neither the language of Article XI-E, § 5, nor its history indicates an intention to encompass only "revenue-raising" levies, and not those imposed for regulatory purposes.  We hold that Article XI-E, § 5, of the Maryland Constitution prohibits municipalities from levying "any type of tax, license fee, franchise tax or fee," whether regulatory or revenue-raising, unless the type of charge was in effect prior to January 1, 1954, or has been expressly authorized by the General Assembly.

   II.

   The City of Annapolis alternatively argues, and the circuit court held, that the City's residential rental unit license fee has received, in the language of Article XI-E, § 5, "the express authorization of the General [**743] Assembly," and that, therefore, the fee does not violate that constitutional provision.  The City finds express authorization for the fee in three state legislative enactments: Code, Art. 23A, § 2; Art. 23B, § 22 (33); and Code (1957, 1979 Repl. Vol., 1980 Cum. Supp.), Art. [***17] 56, § 12.

   Section 2 of Art. 23A provides that every municipality, except Baltimore City,
 
"shall have general power to pass such ordinances not contrary to the public general or public local laws and the Constitution of Maryland as they may [*309]deem necessary in order to assure the good government of the municipality, to protect and preserve the municipality's rights, property, and privileges, to preserve peace and good order, to secure persons and property from danger and destruction, and to protect the health, comfort and convenience of the citizens of the municipality . . . ." (Emphasis supplied.)
 
After setting forth this "general power," Art. 23A, § 2, states that municipalities "shall have the following express ordinance-making powers" and then lists thirty-three "express" powers of municipalities. None of the thirty-three enumerated "express" powers authorizes the license fee at issue here, and the City does not contend otherwise.  Instead, the City appears to rely on the initial broad authority to protect the public health, safety, etc. However, this usual non-specific delegation, which the Legislature itself denominated "general," clearly does[***18] not meet the constitutional standard of "express authorization" to levy a license fee.

   The City also claims that express approval of the § 12-16 (f) fee by the General Assembly may be found in Code, Art. 23B, § 22 (33).  Article 23B contains a model charter for municipal corporations.  Section 22 (33) of the model charter states that the city council shall have the power
 
"[s]ubject to any restrictions imposed by the public general laws of the State, to license and regulate all persons beginning or conducting transient or permanent business in the town for the sale of any goods, wares, merchandise, or services, to license and regulate any business, occupation, trade, calling, or place of amusement or business; to establish and collect fees and charges for all licenses and permits issued under the authority of this charter." (Emphasis supplied.)
 
Respondents argue that this language reflects a broad [*310] authorization for municipal fees, including those of the type at issue here.

   As made clear by the title and initial sections of the Act adopting Art. 23B, Chapter 258 of the Acts of 1955, § 1, pp. 375-376, the article is merely a model "for the use of[***19] any town desiring to adopt it." It is not a grant of power by the General Assembly, but the grant of power to the municipal government is by the people of a municipality which chooses to adopt the model. If all municipalities had all of the powers enumerated in Art. 23B simply by virtue of the model charter having been approved by the Legislature, there would be no need for municipalities to adopt a charter based on Art. 23B.  They would already have all of the powers because of the presence of Art. 23B in the Annotated Code of Maryland.

   The purpose of Art. 23B, § 22 (33), is undoubtedly to assure that a municipality, adopting this model charter provision, would have under its charter the authority to levy license fees in the event that the General Assembly expressly authorized such charges.  Thus, § 22 (33) cannot be considered "express authorization" of the General Assembly as required by Article XI-E, § 5, of the Maryland Constitution.

   Lastly, the City points to Code, Art. 56, § 12, as a grant of legislative authority for the license fee imposed by § 12-16 of the Annapolis City Code. Section 12 of Art. 56 provides in part (emphasis supplied):
  
"§ 12. When[***20] local licenses prohibited; exception as to Prince George's and Worcester counties and Baltimore City.

   "Except as otherwise expressly provided in this article, no county, city or other political subdivision of this State shall require any person, firm or corporation to obtain a permit or license to transact in [**744] such county, city or other political subdivision, any business or occupation for which it or he is required to obtain a State license under the provisions of this article, nor shall any county, city or other political [*311] subdivision of this State levy any occupational tax or fee upon such person, firm or corporation for transacting any such business or engaging in any such occupation for which such State license is required.  Notwithstanding the provisions of this section, any county, city or other political subdivision of this State may require permits or licenses to be obtained where necessary for regulatory purposes in the interest of the public health, safety or morals.  . . ."
 
It is contended that the italicized language permits the City to levy § 12-16 (f) license fees.

   Preliminarily, it should be noted that the italicized language relied [***21]upon is not an affirmative grant of power; instead, it is only an exception to a particular prohibition.  Furthermore, the exception is of limited scope.  Article 56, § 12, of the Code essentially contains two prohibitions: first, a prohibition on the licensing of businesses or occupations by a political subdivision when the State licenses the type of business or occupation; second, a prohibition on subdivisions' levying a fee or tax on a business or occupation licensed by the State.  The italicized portion of the statute containing the exception relates only to the first prohibition.  It expressly exempts, under certain circumstances, political subdivisions from the prohibition on licensing. It is not an exemption from the prohibition regarding fees.

   Even if the relied upon language in Art. 56, § 12, is viewed as an affirmative grant of authority to the political subdivisions, independent of the limited prohibitions contained in that section, the statutory language itself would indicate that it is merely a power to license and not to collect fees.  As petitioners here contest only the validity of the license fee, and not of the entire licensing scheme, Art. 56, §[***22] 12, does not constitute the express authorization necessary to validate the municipal levy.

   Since the fee imposed by § 12-16 (f) of the Annapolis City Code has not been "express[ly] authoriz[ed]" by the General [*312] Assembly, it is invalid under Article XI-E, § 5, of the Maryland Constitution.

   Judgment of the Court of Special Appeals reversed in part, and case remanded to that court with instructions to reverse the judgment of the Circuit Court for Anne Arundel County and remand the case for entry of a judgment not inconsistent with this opinion.

   Respondent to pay costs. 

JAMES LESLIE ADAMS, JR. v. STATE OF MARYLAND 
No. 130, September Term, 1979
 
Court of Appeals of Maryland
 
289 Md. 221; 424 A.2d 344; 1981 Md. LEXIS 166

 January  13, 1981, Decided

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals.  Circuit Court for  Anne Arundel  County, Childs, C. J.

DISPOSITION: Judgment affirmed, appellant to pay the costs.

CORE TERMS:  intercept, oral communication, extension phone, wire, telephone, conversation, listen, interception, subscriber, phone, endeavor, telephone extension, identification, subtitle, felony, law enforcement officer, common carrier, electronic, mouthpiece, wilfully, mechanical, lawful, investigative, transmission, duties, intercepting, admissible, hear, Electronic Surveillance Law, purpose of committing

COUNSEL: George E. Burns, Jr., Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

   Alexander L. Cummings, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellee.

JUDGES: Smith, Digges, Eldridge, Cole, Davidson and Rodowsky, JJ.  Cole, J., delivered the opinion of the Court.

OPINIONBY: COLE

OPINION: [*222] [**345] The issue we are asked to decide in this case is whether a telephone call initiated by the police from the police station to a suspect, which is listened to by the victim of a crime on an extension phone for purposes of voice identification, amounts to an interception made in violation of the Maryland Wiretapping and Electronic Surveillance Law.

   The pertinent facts are brief.  At a jury trial in the Circuit Court for Anne Arundel County, the testimony revealed that the victim was awakened in the night by a pain on the side of her neck.  She saw a man standing in front[***3] of her and became aware of blood running from her neck, down her arm and hand and onto the floor.  Her attacker then struck her on the side, for no apparent reason.  He then performed cunnilingus and raped her.  Throughout this assault, in an attempt to persuade her assailant to spare her life, the victim engaged the man in conversation. When the intruder went to another room of the apartment, the victim seized the opportunity to escape and called the police. She was later treated for her injuries.

   During the course of the police investigation the victim made tentative photographic identifications; however, the police decided to conduct a voice identification via telephone. The victim listened in on an extension phone within the station while a policewoman, Detective Deans, made the calls.  The mouthpiece of the victim's extension phone was removed so that the receiving party was unaware of the presence of the victim.  During each call Detective Deans represented herself as Miss Wetzel from the Department of Social Services. Upon the last of four calls, the victim, a student of music who had studied voice in college, immediately identified the appellant's voice as that of her [***4]attacker.

   The appellant contends before us, as he did below, that the trial court erred when it failed to suppress the voice identification which was an unauthorized interception, procured [*223] in violation of Maryland wiretap laws.  The State in rebuttal contends that use of the extension phone in this case was not an interception and thus, no court order was required.  We turn to the statute to resolve this dispute.

   Maryland's Wiretapping and Electronic Surveillance Law is codified in Maryland Code (1974, 1978 Cum. Supp.), §§ 10-401 to 10-412 of the Courts and Judicial Proceedings Article, and tracks extensively Title III of the Omnibus Crime Control and Safe Streets Act of 1968, presently codified as 18 U.S.C. §§ 2510-2520 (1976).

   The Maryland Statute defines certain terms in § 10-401 as follows:
 
(1) "Wire Communications" means any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission[***5] of communications;
 
(2) "Oral Communication" means any conversation or words spoken to or by any person in private conversation;
 
(3) "Intercept" means the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical or other device;
 
(4) "Electronic, mechanical, or other device" means any device or apparatus which can be used to intercept a wire or oral communication other than:
 
[**346] (i) Any telephone or telegraph instrument, equipment or facility, or any component thereof, (a) furnished to the subscriber or user by a communications common carrier in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business; or (b) being used by a [*224] communications common carrier in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his duties.

   Section 10-402 provides in part, as follows:
 
(a) Unlawful acts.  -- Except as otherwise specifically provided in this subtitle it is unlawful for any person to:
 
(1) Wilfully intercept, endeavor to intercept, or procure[***6] any other person to intercept or endeavor to intercept, any wire or oral communication;
 
(2) Wilfully disclose, or endeavor to disclose, to any other person the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this subtitle; or
 
(3) Wilfully use, or endeavor to use, the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this subtitle.
 
(b) Penalty.  -- Any person who violates subsection (a) of this section is guilty of a felony and is subject to imprisonment for not more than five years or a fine of not more than $10,000 or both.
 
(c) Lawful acts.  -- . . .
 
(2) It is lawful under this subtitle for an investigative or law enforcement officer acting in a criminal investigation or any other person acting at the prior direction and under the supervision of an investigative or law enforcement officer to intercept a wire or oral communication in order to provide evidence of the commission[***7] of the offenses of murder, kidnapping, gambling, robbery, any felony [*225] punishable under the "Arson and Burning" subheading of Article 27, bribery, extortion, or dealing in controlled dangerous substances, or any conspiracy to commit any of these offenses, where the person is a party to the communication or one of the parties to the communication has given prior consent to the interception.
 
(3) It is lawful under this subtitle for a person to intercept a wire or oral communication where the person is a party to the communication and where all of the parties to the communication have given prior consent to the interception unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of this State or for the purpose of committing any other injurious act.

   Appellant maintains that while it is true that the federal and Maryland statutes are similar, they differ in at least one fundamental respect.  The federal statute authorizes an intercept where only one of the parties to the communication consents; however, the Maryland statute is more restrictive, requiring the[***8] consent of all parties.  The appellant logically argues that since he did not consent to the victim's use of the extension phone, the identification of his voice was made in violation of the Maryland statute.

   The appellant further contends the two cases relied upon by the Court of Special Appeals in its decision are inapposite.  In Rathbun v. United States, 355 U.S. 107, 78 S. Ct. 161, 2 L. Ed. 2d 134 (1957), rehearing denied, 355 U.S. 925, 78 S. Ct. 363 (1958), at the request of an extortion victim, the police used an extension phone to listen while the victim called the defendant.  The Supreme Court held that, since the extension was ordinarily connected in the home of the victim and had not been installed for this specific purpose, the evidence was admissible because a telephone [**347] subscriber [*226] might reasonably be expected to allow others to listen to his conversation.

   In Clark v. State, 2 Md. App. 756, 237 A.2d 768 (1968), the Court of Special Appeals relied on Rathbun in holding that the evidence was admissible where an arson victim allowed police over the course of a week to listen on a telephone extension in the victim's home to various conversations[***9] with the defendant, in one of which he confessed.  Chief Judge Murphy (then Chief Judge of the Court of Special Appeals and now Chief Judge of the Court of Appeals) speaking for the Court said:
 
We hold only that the admissibility in evidence of the contents of a communication overheard on a regularly used telephone extension is not controlled by the provisions of the Maryland Wiretapping Act, since the Legislature never intended that the use of such an extension telephone would be considered as a means for "intercepting" or "obtaining" a telephone communication within the meaning of the act, and particularly Section 93 (a) thereof.  [Id. at 765-66.]

   Appellant contends that while these cases may have been dispositive of the issue at the time they were decided they are no longer controlling.  Each was decided before the present federal and Maryland statutes.  While the federal statute still allows intercept with one party's consent, the Maryland statute requires the consent of all.  Appellant argues further that the only exception to the requirement that all participants consent is found in § 10-402 (c) (2), in which the crimes defendant was convicted of are not specifically[***10] enumerated.  Thus, the appellant concludes the use of the extension phone in the instant case violated the Maryland statute.

   The appellant asserts it is nonsensical to say that consent is required from all participants to intercept unless certain crimes are being investigated and then to say, that if police investigation is being conducted, the police in the ordinary course of their duties may intercept. However, this argument [*227] presupposes the correctness of its premise.  In other words, the appellant would be correct if the use of a telephone extension, under the circumstances of this case, is a device under the statute used in intercepting. If it is not a "device", then the premise is faulty.

   We return then to where we began.  Does this use of a telephone extension, where the use made of the phone was not inconsistent with its natural purpose and where no additional devices were attached to the phone, constitute an intercept under Maryland Code (1974, 1978 Cum. Supp.), § 10-401 (3) of the Courts and Judicial Proceedings Article?

   As we read the statute it seems plain that an intercept occurs when there is aural acquisition of the contents of a communication by the[***11] use of some "electronic, mechanical or other device", other than that which is supplied by a communications common carrier or being used by a law enforcement officer in the ordinary course of his duties. It is further plain to us that this was equipment supplied by the carrier for use consistent with the usual purpose.  It was not a device placed on the line in order to receive the communication during its transmission; instead, it was furnished to the subscriber in order that the same communication may be received or transmitted at the same time by more than one person.

   It is difficult for us to conceive that the legislature intended the use of an extension phone under the circumstances of this case to constitute a felony under Section 10-402.  As Chief Judge Murphy said for the Court of Special Appeals in Clark v. State, supra, 2 Md. App. at 765:
 
[W]e do not believe that the Legislature intended to place a severe restriction on the ordinary usage by subscribers of telephone extensions by denying the subscriber the right to allow a family member, an employee, a friend, or the police to listen to a conversation to which the subscriber is a party.  Nor do we believe[***12] that the Legislature intended to make a criminal out of every person who would use a [*228] telephone extension under circumstances such as are here present.  . . .

   [**348] The Appellant argues that Clark is neither controlling nor persuasive in light of Section 10-402 (c) (2) which permits interception of communication with the consent of only one party in certain named crimes.  While this Court is fully aware of the legislature's expressed concern for protecting personal rights and that the State requires generally all parties to consent before an intercept may be permitted under the law, we also believe it is within the legislative wisdom to carve out an exception in the law where the General Assembly did not believe the law should operate.

   We believe that when the legislature provided in § 10-402 (a) (1) that "it is unlawful for any person to -- wilfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire or oral communication" and in § 10-402 (b) that "any person who violates subsection (a) of this section is guilty of a felony and is subject to imprisonment for not more than five years or a fine of[***13] not more than $10,000 or both," it did not intend to make such use of an extension phone a felony. To reach a contrary conclusion would mean that the legislature intended a scheme so that "every secretary who listens to a business conversation at her employer's direction in order to record it would be marked a . . . criminal," Rathbun v. United States, supra, 355 U.S. at 107, and parents who listen in on the conversations of their minor children would carry a corresponding stigma. n1 We think it unimaginable that the legislature intended such harsh consequences.  We also fail to discern the difference between the telephone use employed by Dectective Deans and the victim in this case [*229] and that of the business executive who puts a party on a squawk box, thereby allowing anyone in the room to hear the conversation or, in the instant circumstances, if Detective Deans had simply held the receiver away from her ear to let the victim hear the voice. See Rathbun v. United States, supra, 355 U.S. at 110-11. Such actions were certainly never intended to be criminal, nor are they forbidden by the statute.

n1 See Simpson v. Simpson, 490 F.2d 803, 809, n. 17 (5th Cir. 1974) where it is noted that "Prof. Herman Schwartz, appearing for the A.C.L.U., stated his fear that the original version would permit intruders or other unauthorized persons to use extension phones without being subject to the prohibitions and penalties of the act.  In the course of this objection, he made the following comment: 'I take it nobody wants to make it a crime for a father to listen in on his teenage daughter or some such related problem.'" [Extracted from Hearings on the Anti-Crime Program before Subcomm.  No. 5 of the House Judiciary Comm., 90th Congress, 1st Sess., 989 (1967).]

[***14]

   It is therefore apparent that by tightening the federal regulations the Maryland legislature sought to continue its curbs on one-party consent intercept; however, in light of the common and wholly innocent uses of the extension phone it is also apparent that the General Assembly did not seek to include this facet of telephone communications within the concept of intercept. Specifically, in the case at hand, having the victim listen in on the conversation between Detective Deans and the appellant did not constitute an intercept as defined in § 10-401 (3) of the Courts Article.

   The Appellant places some significance on the fact that the mouthpiece of the extension phone was removed.  This did not substantially alter the instrument so that it became something other than a telephone. The police could have achieved the same result by having the victim hold her hand over the mouthpiece. Additionally, § 10-401 (4) (i) includes in its exception to electronic, mechanical, or other device "[a]ny telephone . . . or any component thereof." The alteration made to the phone in this case certainly did not remove it from within the ambit of this provision.

   For the foregoing reasons, we affirm. [***15]

   Judgment affirmed, appellant to pay the costs. 

RICHARD ALAN LEONARD et al. v. SAV-A-STOP SERVICES,INCORPORATED et al. 
No. 21, September Term, 1980
 
Court of Appeals of Maryland
 
289 Md. 204; 424 A.2d 336; 1981 Md. LEXIS 164

 January  9, 1981, Decided

   PRIOR HISTORY: [***1]  
Certiorari to the Court of Special Appeals.  Circuit Court for  Anne Arundel  County, Thieme, J.

DISPOSITION: Judgment of the Court of Special Appeals affirmed.  Costs to be paid by the appellants.

CORE TERMS:  duty, estoppel, servant, negligent misrepresentation, duty to warn, warn, wrongful death action, co-worker, declaratory judgment, declaration, memorandum, coverage, insurer, affirmative duty, cause of action, silence, indemnification, co-employee, insured, suppression, clerk, safe, equitable estoppel, automobile liability, insure, common law, final judgment, automobile liability policy, exclusive control, bodily injury

COUNSEL: Thomas Sisk, with whom were Rasin & Sisk and Susanne Hayman Schmoldt on the brief for appellant Richard Alan Leonard; David M. Williams on the brief for Mary Jane Weikel, other appellant.

   M. King Hill, Jr., with whom were Jon H. Grube and Smith, Somerville & Case on the brief, for appellee.

JUDGES: Murphy, C. J., and Smith, Digges, Eldridge, Cole, Davidson and Rodowsky, JJ.  Rodowsky, J., delivered the opinion of the Court.

OPINIONBY: RODOWSKY

OPINION: [*206] [**337] The Maryland Workmen's Compensation Act does not give immunity to a worker against claims for damages based on injury or death tortiously caused to a co-worker in the course of their employment.  Motor vehicle liability insurance policies of employers, in force in Maryland, routinely exclude coverage of the tortfeasor-worker in such cases. n1 Appellant, Richard Alan Leonard (Leonard), faces a wrongful death[***5] action brought by the family of a co-worker which is based on a motor vehicle tort.  In an effort to avoid the resulting dilemma, Leonard sought indemnification from his employer, Sav-A-Stop Services, Incorporated (Services).  He obtained a declaratory judgment to that effect from the Circuit Court for Anne Arundel County which was based on concepts of estoppel, negligent misrepresentation and negligence by way of failure to warn. The Court of Special Appeals reversed. Sav-A-Stop Services, Inc. v. Leonard, 44 Md. App. 594, 410 A.2d 603 (1980). We affirm the [*207] intermediate appellate court because Services had no duty to Leonard to provide him with insurance against the hazard involved here and because Services did not breach any duty to warn.

n1 The parties agree that the exception is a standard provision.

   The background facts are succinctly stated by the findings of the trial court.
 
The Plaintiff, Richard Allen [sic] Leonard (Leonard), and Carlton Rayhill Weikel (Weikel) were both employed[***6] by Defendant, Sav-A-Stop Services, Inc. on September 3, 1975.  As part of the duties of his employment, Leonard was required to drive, and did with regularity, a vehicle provided to him by his employer.  . . . Leonard occasionally transported fellow employees in the vehicle when it was necessary for him to have help.  This fact was known to Sav-A-Stop Services, Inc. Weikel, Leonard's immediate superior in the company, was a passenger in the company vehicle on September 3, 1975.  On that day the vehicle, driven by Leonard, was involved in an accident in Anne Arundel County, Maryland.  As a result of this accident, Weikel was killed and Leonard was seriously injured.  At the time of the accident, both men were acting in the course of their employment.

   Both Leonard and Weikel's widow filed claims with the Workmen's Compensation Commission and were given awards.  Subsequently, Mrs. Weikel and her children . . . sued Leonard in the Circuit Court for Anne Arundel County for damages arising out of this accident.  That case is Law No. D-160 [the wrongful death case].

   At the commencement of his employment with Sav-A-Stop Services, Inc., Leonard was covered by his own automobile liability[***7] insurance.  He filled out a questionnaire for his employer . . . stating the same.  At some time thereafter, Leonard sold his private automobile and cancelled his insurance.  He did not notify his employer of this nor was he requested to give such notice.

   [*208] In this state the Workmen's Compensation Act, Maryland Code (1957, 1979 Repl. Vol.), Article 101, "excludes an action in tort by an employee against his employer, but does not exclude tort actions between co-employees." Hutzell v. Boyer, 252 Md. 227, 232, 249 A.2d 449, 452 (1969). See also Wilson v. Fraser, 353 F. Supp. 1, 3 (D. Md. 1973); Travelers Corp. v. Boyer, 301 F. Supp. 1396, 1401 (D. Md. 1969); Thomas v. Hycon, Inc., 244 F. Supp. 151, 154 (D.D.C. 1965). n2

 n2 According to 2A A. Larson, The Law of Workmen's Compensation § 72.10, at 14-30 (1976, 1980 Cum. Supp.), the "states currently permitting suit against coemployees are: Arkansas, Georgia, Iowa [intentional torts only], Louisiana [intentional torts only], Maryland, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, New Jersey [intentional torts only], Rhode Island, South Dakota, Vermont and Wisconsin.

[***8]

   [**338] Leonard had never been told by Services that the employer's automobile liability coverage did not apply to him were he negligently to injure a fellow worker.  Nor is there any evidence that Leonard inquired of Services about liability coverage. When the wrongful death action was brought, Leonard sought protection from Services' insurer under its general automobile liability policy. Coverage was denied because of an exception from the definition of "insured" as to "any person while engaged in the business of his employer with respect to bodily injury to any fellow employee of such person injured in the course of his employment . . . ." n3

n3 The provision has been called the "cross employee exception." General Insurance Company of America v. Reid, 216 So. 2d 41, 42 (Fla. App. 1968), cert. denied, 222 So. 2d 752 (1969). Its history is traced in Bevans v. Liberty Mutual Insurance Co., 356 F.2d 577 (4th Cir. 1966). Federal courts have sustained the exception against challenges that it violates Maryland law.  Id. and Riviera Beach Volunteer Fire Company, Inc. v. Fidelity and Casualty Company of New York, 388 F. Supp. 1114 (D. Md. 1975). However, this Court has not ruled directly on the question which, for reasons stated infra, is not presented here.

[***9]

   Leonard then instituted the present declaratory judgment action on the law side of the circuit court.  In his third amended petition Leonard joined as defendants Services, the parent corporation of Services, the base and excess liability insurers and a prior policy period insurer of Services and of its parent, the lessor of the vehicle involved in the accident, the lessor's insurer and the persons who were plaintiffs in [*209] the wrongful death action. n4 Partial summary judgment was granted in favor of the insurers of Services under its general automobile liability and excess policies. n5 This partial summary judgment determined that the cross employee exception was not contrary to public policy.  After trial on the remaining issues, the circuit court by memorandum and order dated December 5, 1978 made declarations adverse to Leonard other than with respect to his claims against Services based on estoppel, negligence and negligent misrepresentation.

 n4 Mrs. Weikel, individually, as personal representative of Weikel's estate, and as next friend of the infant children, and the children had been joined as defendants in the original, amended and second amended petitions for declaratory judgment. Although they were omitted in the caption of the third amended petition, the parties agreed at trial that they continued as defendants under the third amendment.

[***10] 

n5 The excess policy also contained the exception.

   On the merits of the claims against Services the trial court reasoned that the employer had a duty to warn Leonard when it placed him in "a position to expose him to potential financial ruin." Silence of the employer "who knew or should have known of the [exception]" was said to be "an omission sufficient to give rise to an estoppel." Leonard relied on the silence, believed he was insured and was damaged thereby.  The trial court also concluded that Services "impliedly represented that [the vehicle] was adequately insured for the purpose for which it would be used," without ascertaining the extent of Leonard's insurance or warning him to procure sufficient insurance, for which "the damages should equal the amount of personal liability incurred by [Leonard] which he would not have incurred otherwise." It was ordered and declared that Services be required (1) to pay damages equal to the cost of affording Leonard a defense in the wrongful death action; (2) to pay damages equal to the amount of any judgment which may be rendered against Leonard[***11] in the wrongful death action; (3) to afford a defense on behalf of Leonard in the wrongful death action; and (4) to reimburse Leonard for costs and attorney's fees.  An order for appeal was noted by Services.

   No cross-appeal was noted by Leonard.  Thus none of the [*210] declarations adverse to Leonard, including those bearing on the cross employee exception, are subject to review.  An order for appeal was filed by the Weikels on January 10, 1979, but that appeal was dismissed by the Court of Special Appeals as having been filed too late.

   [**339] In reversing the judgment as to Services, the Court of Special Appeals reasoned that there is no duty on "an employer to warn an employee against that employee's own negligence" and "[s]imilarly, there is no duty to warn the employee that no insurance coverage is provided for his own negligence." It further held that "the equitable estoppel doctrine can only be used as a defense to a cause of action or to avoid a defense, but not as the basis for an affirmative cause of action." Sav-A-Stop Services, Inc. v. Leonard, supra, 44 Md. App. at 600-01, 410 A.2d at 607.

   (1)

   Before addressing the merits, we turn to a threshold issue[***12] of appealability.  The Weikels argue as appellants in this Court n6 that there is no final judgment and the appeal is premature because the clerk of the circuit court "merely" recorded on the law docket the filing of the memorandum and order of December 5, 1979.  Actually, the clerk recorded the filing of the memorandum and also copied on the law docket the text of the order which granted affirmative relief consistent with Leonard's requested relief against Services. Principal reliance is placed by the Weikel appellants on Stitzel v. Kurz, 18 Md. App. 525, 308 A.2d 430, cert. denied, 269 Md. 755, 761 (1973) in which appeals were held to be premature.  That was a jury trial damage suit where the court filed a memorandum which concluded that a defendant's motion for judgment n.o.v. should be granted and the [*211] plaintiffs' motion for new trial denied, together with an order directing the clerk to enter these findings, but the clerk did not enter judgment on the docket.  Here the action is one for declaratory judgment. Maryland Code (1974, 1980 Repl. Vol.), Section 3-411 of the Courts Article provides that in such actions the "declaration may be affirmative or negative[***13] in form and effect and has the force and effect of a final judgment or decree." The December 5, 1978 memorandum of the trial court constituted negative declarations and the order specified the affirmative declarations and relief awarded.  The memorandum and order were filed and the filing was docketed.  No further matter of form was required.

n6 After dismissal of their appeal, the Weikels, as appellees in the Court of Special Appeals unsuccessfully sought dismissal of Services' appeal to that court in order that the Weikels might then note a timely appeal by which they intended to challenge the validity of the cross employee exception.  We granted the Weikels' petition for certiorari which questions the denial of its motion to dismiss the appeal of Services.

   (2)

   In its estoppel analysis of the silence of Services the trial court held that Services was under a duty to speak, by reasoning that the duty of the employer to furnish a safe place to work, and to warn, as stated in Bauman v. Woodfield, 244 Md. [***14] 207, 216, 223 A.2d 364, 368 (1966), reached the risk of financial harm to the employee presented here.

   We do not view estoppel as the basis of an affirmative duty by Services to indemnify Leonard.  In Impala Platinum Limited v. Impala Sales (U.S.A.), Inc., 283 Md. 296, 322, 389 A.2d 887, 903 (1978), it was said that this
 
Court has upheld and consistently applied the definition of equitable estoppel contained in 3 J. Pomeroy, Equity Jurisprudence § 804 at 189 (5th ed. 1941):

   "Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, either of property, of contract, or of remedy, as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and who on his [*212] part acquires some corresponding right, either of property, of contract, or of remedy."
 
. . . "Estoppel is cognizable at common law either as a defense to a cause of action, or to avoid a defense . . . ." Bitting v. Home Ins. Co., 161 Md. 56, 60, 155 A. 329 (1931). . . .
 
As stated[***15] by Judge Chesnut, "Estoppel is a shield for defense but not a weapon of [**340] attack . . . .  It is not the basis of an affirmative action." United States ex rel. Nolan Co. v. Maryland Casualty Co., 38 F. Supp. 479, 484 (D. Md. 1941).

   The trial court concluded its "estoppel" analysis by saying:
 
Thus Sav-A-Stop Services cannot avail itself of the defense that it did provide insurance for the vehicle and thus had fulfilled its duty as far as preparing the vehicle for its employee to drive.  Given the reasonableness of the assumption that a vehicle, duly licensed and placed on the road, is adequately insured for the use intended, the Court finds no duty on the part of Leonard to inquire as to . . . exclusions.
 
The underlying premise which led the trial court to conclude that Services must indemnify Leonard is, in essence, not estoppel. Rather, it is a holding by the trial court that Services had a duty to prepare the vehicle for Leonard to drive it and that that duty included procuring adequate insurance on the vehicle for the use intended.

   No contention is presented here that Services did not fully comply, both at the time of hire of Leonard in August, 1974[***16] and at the time of the accident in September, 1975, with the required security provisions of the motor vehicle laws.  See Maryland Code (1957, 1970 Repl. Vol., 1974 and 1975 Cum. Supps.), Art. 66 1/2, subtitle 7.  However, "[c]ompliance with a legislative enactment . . . does not prevent a finding of negligence where a reasonable man would take additional precautions." Restatement (Second) of Torts § 288 C (1964); see also W. Prosser, Handbook of the Law of Torts 203 (4th ed. 1971). In this case we are concerned only with the effect [*213] of the presence of the cross employee exception in Services' policy.  As a result, one issue presented is whether Services owed Leonard an affirmative duty to procure and maintain automobile liability coverage which had no cross employee exception. This question of duty is addressed in part 4 hereof.

   (3)

   With respect to the negligent misrepresentation theory, Services made no express representation by spoken or written words concerning its insurance. Leonard claims negligent misrepresentation by silence. Only express representations have been involved in the Maryland appellate cases in which recovery on a theory of, or akin[***17] to, negligent misrepresentation was advanced. n7 If any representation was implicit in Services hiring Leonard and furnishing him with a vehicle for use in his employment, the representation was that the vehicle was insured to the extent required by statute.  Compliance with statutes is not questioned here so that a representation by conduct, if any, was true.

n7 Vance v. Vance, 286 Md. 490, 408 A.2d 728, aff'g, 41 Md. App. 130, 396 A.2d 296 (1979); Delmarva Drilling Co. v. Tuckahoe Shopping Center, Inc., 268 Md. 417, 302 A.2d 37 (1973); St. Paul at Chase Corp. v. Manufacturers Life Insurance Co., 262 Md. 192, 278 A.2d 12 (1971); Brack v. Evans, 230 Md. 548, 187 A.2d 880 (1963); Piper v. Jenkins, 207 Md. 308, 113 A.2d 919 (1955); Holt v. Kolker, 189 Md. 636, 57 A.2d 287 (1948); Virginia Dare Stores, Inc. v. Schuman, 175 Md. 287, 1 A.2d 897 (1938); and Local 75 United Furniture Workers of America, AFL-CIO v. Regiec, 19 Md. App. 406, 311 A.2d 456 (1973). We are mindful of the questions which have been raised concerning the statment in Tuckahoe that "there can be no recovery in an action for deceit on the ground of negligent misrepresentation . . . ." 268 Md. at 427, 302 A.2d at 41. See Geo. Byers Sons, Inc. v. East Europe Import Export, Inc., 488 F. Supp. 574, 586 (D. Md. 1980); and Note, Deceit and Negligent Misrepresentation in Maryland, 35 Md. L. Rev. 651, 671-673 (1976). Our citation of Tuckahoe is not a reaffirmation of the quoted language.  Resolution of the questions raised is not essential to the holding in the present case and remains for consideration in a case in which the issues are directly presented.

[***18]

   We shall assume, however, without deciding, that if a party to a transaction is under a duty to speak, the failure to speak may, under appropriate circumstances in an action founded on negligent misrepresentation, constitute a representation. n8 In the [**341] context of a defense of fraudulent [*214]concealment asserted against an action brought by a debtor against his creditor for specific performance to obtain corporate stock we said:

   There was no false statement made by [plaintiff] to [defendant], nor was there the suppression of fact.  He was asked no question which required him to divulge what he knew.  He was simply silent.  There is a distinction between the suppression of a fact and mere silence. Where there is an obligation to speak a failure to speak will constitute the suppression of a fact; but where there is no obligation to speak silence cannot be termed suppression. [Chicora Fertilizer Company v. Dunan, 91 Md. 144, 159, 46 A. 347, 351 (1900).]
 
To the same effect with respect to estoppel in avoidance of a defense of forgery is Mohr v. Universal C.I.T. Credit Corp., 216 Md. 197, 205, 140 A.2d 49, 52 (1958). See also Furst v. [***19]  Carrico, 167 Md. 465, 469, 175 A. 442, 444 (1934); Restatement (Second) of Torts § 551 (1976); W. Prosser, Handbook of the Law of Torts 694-699 (4th ed. 1971).

n8 In Fegeas v. Sherrill, 218 Md. 472, 476-477, 147 A.2d 223, 225-26 (1958) this Court stated that "[t]o create a cause of action, concealment must have been intentional . . ." and that "[t]he affirmative suppression of truth must have been with intent to deceive."

   Here Leonard predicates the duty of Services to speak on the employer-employee relationship and on a duty of the employer to warn. n9 As a result, the negligence and misrepresentation theories merge.  Restatement (Second) of Agency § 471 (1957) sets forth the general rule that
 
[a] principal is subject to liability in an action of tort for failing to use care to warn an agent of an unreasonable risk involved in the employment, if the principal should realize that it exists and that the agent is likely not to become aware of it, thereby suffering harm.
 
Comment [***20] b to § 471 reflects that the harm may be physical or pecuniary, "as where the principal directs the agent to [*215] bind himself to a contract on behalf of the principal and fails to reveal relevant facts concerning the risks of performance, thereby causing the agent to respond in damages." n10 With respect to the working conditions of servants, Restatement (Second) of Agency § 510 (1957) states:
 
The master's duty as to working conditions includes a duty that care be used to give such instruction to servants employed by him as, from what the master should know concerning them and the work they are employed to do, is necessary to prevent unreasonable risk to them and to other servants during the progress of the work, and to give them work suitable to their apparent capacities.

n9 Leonard contends Services did not raise in the trial court that it had no duty to warn. The record does not support Leonard's position.

n10 Section 471 appears to have been cited twice.  Both cases involved bodily injury. Dahlgren v. Coe, 311 Mass. 18, 40 N.E.2d 5 (1942) (judgment for domestic laundress scalded by tap water); and Hopkins v. Hacker, 105 N.H. 150, 195 A.2d 587 (1963) (no recovery by rental agent against principal for injury suffered in assault by irate tenant).

[***21]

   The question thus becomes whether the general rules concerning warning apply to the circumstances here.  Did Services owe an affirmative duty to Leonard to warn Leonard of the absence of liability insurance coverage in circumstances where the cross employee exception would operate?  This question is much like whether Services had a duty to insure without the exception.

   (4)

   We have neither been cited to, nor have we found, any decision bearing directly on the existence of any duty either to insure without, or to warn of the inclusion of, the cross employee exception. n11 Strongly suggestive that the law does [*216] not impose either [**342] such duty is the significant number of cases which have applied the exception according to its terms without reference to either of the duties on which Leonard necessarily relies. n12 But the absence of authority on the point requires that we turn to first principles.

n11 In Mason v. Morrow's Moving & Storage Ltd. (1977) 2 C.C.L.T. 118, [1977] 2 W.W.R. 728 the British Columbia Supreme Court entered judgment in favor of a bailor against a custodian for reward for failure to warn of the absence of fire insurance maintained by the warehouseman on stored goods.  This judgment was reversed by the British Columbia Court of Appeal on an analysis directed to the cause of the fire, namely, arson.  The trial court decision is the subject of an article by Litman, Bailee's Liability for Failure to Warn Bailor of Lack of Insurance: Source of the Duty of Care, 16 Alberta L. Rev. 20 (1978).

[***22] 

n12 See, e.g., Bryan v. Aetna Casualty and Surety Co., 381 F.2d 872 (8th Cir. 1967) (Arkansas law); Bevans v. Liberty Mutual Insurance Co., supra, (Maryland law); Stewart v. Liberty Mutual Insurance Co., 256 F.2d 444 (5th Cir. 1958) (Louisiana law); Campbell v. American Farmers Mutual Insurance Corp., 238 F.2d 284 (8th Cir. 1956) (Missouri law); Lumberman Mutual Casualty Insurance Co. v. Stukes, 164 F.2d 571 (4th Cir. 1947) (South Carolina law); Riviera Beach Volunteer Fire Company, Inc. v. Fidelity and Casualty Co. of New York, supra; Travelers Corp. v. Boyer, supra; McDowell v. United States Fidelity & Guaranty Co., 260 Ala. 412, 71 So. 2d 64 (1954); Limon v. Farmers Insurance Exchange, 11 Ariz. App. 459, 465 P.2d 596 (1970); Rollo v. California State Automobile Ass'n, 159 Cal. App. 2d 172, 323 P.2d 531 (1958); McRae v. Snelling, 303 So. 2d 670 (Fla. App. 1974) (dicta); General Insurance Co. of America v. Reid, supra; General Accident Fire & Life Assur. Corp. v. Kimberly, 61 Ga. App. 153, 6 S.E.2d 78 (1939); State Farm Mutual Automobile Insurance Co. v. Staff, 26 Ill. App. 3d 217, 325 N.E.2d 1 (1975); Brown v. Green, 204 Kan. 802, 466 P.2d 299 (1970), overruled on other grounds, Spruill Motors, Inc. v. Universal Underwriters Insurance Co., 212 Kan. 681, 512 P.2d 403 (1973); Hanson v. Zollars, 189 Kan. 699, 371 P.2d 357 (1962); Manuel v. Liberty Mutual Insurance Co., 256 La. 480, 236 So. 2d 807 (1970); Turnage v. State Farmers Mutual Tornado Insurance Co., 388 S.W.2d 342 (Mo. App. 1965); Chavez v. Pino, 86 N.M. 464, 525 P.2d 391 (1974); City of Albany v. Standard Accident Insurance Co., 7 N.Y.2d 422, 198 N.Y.S.2d 303, 165 N.E.2d 869 (1960); Pyykola v. Woody, 52 Wis. 2d 342, 190 N.W.2d 534 (1971). See generally Annot., 45 A.L.R.3d 288 (1972, 1980 Supp.).

[***23]

   Professor Francis H. Bohlen, in part I of his article, The Moral Duty to Aid Others as a Basis of Tort Liability, 56 U. Pa. L. Rev. and Am. L. Reg. 217 (1908) presents a scholarly analysis of the then evolution of affirmative duties. He recognizes a class of duties "annexed by the policy of the law as necessary incidents to a relationship voluntarily assumed, normally varying in extent as the relation is gratuitous or beneficial to him on whom the obligation is laid." Id. at 226.  One such relationship is employer-employee.
 
This relation is voluntary on both sides and is for the benefit of both.  The master's duty extends no further than to take care not to expose the servant to unnecessary risks from sources over which the master having exclusive control has the sole ability to protect the servant, and, from which the servant, [*217]being ignorant of the true condition of affairs, is unable to protect himself by withdrawing from the service.

   He must provide and prepare as to those matters within his exclusive control a business as safe as it appears to be.  The master's duty in this respect is usually said to comprise only certain definite duties, these (1) [***24] of supplying safe tools and appliances; (2) a safe place to work; (3) a sufficiency of not obviously incompetent fellow-servants; (4) a safe system of rules and regulations where the complicated nature of the business makes it necessary for the servant's protection, and (5) in many jurisdictions some by common law and some by statute, efficient superintendence.  These, however, are but the more usual instances of the application of the general principle which requires from the one, able to afford it, protection to the other incompetent to protect himself.  These are the usual things over which the master has the exclusive control and the sole power to make safe; the servant if ignorant of the defects therein being unable to protect himself by withdrawing from the employment, and by the very nature of the employment being forced to take and use what the master provides him and so to look solely to his master's care in these particulars for his safety.  [Id. at 235-36.]

   In Leonard's appeal the harm which he seeks to avoid is the product of factors which are not within the control of, or subject to the power of Services, in the sense described by Bohlen.  Harm to Leonard arises[***25] from the concurrence of (1) the use by the insurance industry of the cross employee exception, (2) the absence of any statutory defense under the Maryland [**343] Workmen's Compensation statute to one in Leonard's position, and (3) the happening of the accident with Weikel as a passenger.  The present case differs from the case of a supplier of goods, the use of whose products involves a foreseeable risk of harm and who thereby is under a concomitant duty to warn the user.  See, e.g., Moran v. Faberge, Inc., 273 Md. 538, 332 A.2d 11 (1975).

   [*218] Indeed, from the standpoint of the claim for indemnity for damages which might be awarded against Leonard for the wrongful death of Weikel, the happening of the accident must be viewed as caused exclusively by fault on the part of Leonard.  Any obligation of Services presently to pay to Leonard the amount of any judgment obtained by the Weikel family presupposes that Leonard has been found liable.  Under the hypothesis there must be negligence by Leonard for his economic loss to arise. n13

n13 The claim of Leonard for indemnification for the cost of defense is not subject to a comparable analysis.  Liability insurance policies customarily provide for a defense even of claims which are groundless.  Consequently, fault of Leonard may or may not be the cause of his incurring the expense of defending the wrongful death suit.

[***26]

   At common law an employer is not an insurer of his servant's safety.  McVey v. Gerrald, 172 Md. 595, 602, 192 A. 789, 792 (1937).
  
However, it is the affirmative duty of an employer in a master-servant relationship to provide his employee with a reasonably safe place in which to work and to warn and instruct his employee concerning the dangers of the work known to him which are not obvious and can not be discovered by the exercise of reasonable care by the employee.  This duty is relative and conditional, and what would be a full discharge of the duty under one set of circumstances may not be under another.  The duty to warn or instruct depends upon the age, understanding, and experience of the employee and upon the nature of the work. Where the employee, by reason of his youthfulness or inexperience, is unable to comprehend the dangers of the work or where the dangers are of such nature as to give reasonable ground for believing that they are not known to such employee or would not be discovered after a reasonable time, and they are actually or constructively known to the employer, the failure of the employer to warn the employee is a breach of his duty. [Bauman v. [***27]  Woodfield, supra, 244 Md. at 216, 223 A.2d at 368.]
 
[*219] The premise of this relative and conditional duty to warn is superior knowledge of the employer.  "The duty of the master to give instructions to the servant is based upon the assumption that the master possesses some knowledge concerning the work and its dangers, that the servant by reason of ignorance or inexperience does not possess." F.S. Royster Guano Co. v. State ex rel. MacDonald, 130 Md. 170, 176, 100 A. 104, 106 (1917).

   The problem presented in the present case can arise with any employer who has at least one vehicle used in the work and has at least two employees.  We cannot say that all such employers in this state are assumed to understand the operation and effect of a cross employee exception in their automobile liability insurance policies, or to understand the lack of immunity to co-workers under the Maryland Workmen's Compensation Act.  Nor do we believe that reasonable care requires all such employers to foresee the interaction of these two factors in the event one of their employees negligently causes bodily injury or death to a co-worker.

   Because the risk of the types of economic harm[***28] to the employee presented in the instant case arises out of the insurance statutes and practices in this state, because the principal type of economic harm involved, i.e., tort damages payable to a co-worker, requires employee fault as a concurring factor, and because we are of the opinion that it is unreasonable to expect all possibly effected employers to foresee the somewhat sophisticated economic risk involved, we hold that Maryland law does not generally impose on all employers, who furnish a vehicle to one employee for use with [**344] a co-worker in the course of employment, a duty either to insure without, or to warn of the effect of, the cross employee exception.

   In the record of the instant case, there was no evidence of any special contract, or of facts or circumstances peculiar to the situation of Leonard and Services, which would alter the rule set forth above.  There was no evidence of any commercially reasonable availability to Services of an automobile liability policy on vehicles used in its business by its [*220] employees from which the cross employee exception was removed.  Nor was there any evidence that Services was in fact aware of the effect of[***29] the exception and of its relation to Maryland Workmen's Compensation law.  For the reasons previously stated, the fact that Services was a named insured, and presumably possessed or had access to the policy, is insufficient to give rise to a duty to warn of the exception.  The Court of Special Appeals was therefore correct in reversing the declaratory judgment.

   Judgment of the Court of Special Appeals affirmed.

   Costs to be paid by the appellants. 

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