Design Kitchen v. Lagos

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Re: Design Kitchen and Baths, et al. v. Diego E. Lagos No. 82, September Term, 2003 WORKERS COMPEN SATION - EMP LOYERS A ND EMPL OYEES - An undocumented worker injured in the course of his employment is a covered employee under § 9-202, eligible to receive worker s compensation benefits. IN THE COURT OF APPEALS OF MARYLAND No. 82 September Term, 2003 ______________________________________ DESIGN KITCHEN AND BATHS, ET AL. v. DIEGO E. LAGOS Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene JJ. Opinion by Bell, C.J. Harrell, J., Diss ents ______________________________________ Filed: September 12, 2005 We granted ce rtiorari in this case to decide the eligibility of an undocumented alien to receive workers compensation pursuant to Maryland Code (1991, 1999 Repl. Vol.) Title 9 of the La bor and E mploymen t Article, the M aryland Wo rkers Com pensation Act ( the Act ), as a result of an injury sustained in the course of employment, which, except for the illegal resident status, would be compensable. The Maryland Workers Compensation Commission ( the Commission ) ruled that Diego E. Lagos, the appellee, although an undocumented alien , was an e mployee, as de fine d by § 9-202, who sustained a work related injury, for which he was eligible to receive workers compen sation bene fits. The C ircuit Court for Montgomery County, on judicial review, affirmed. This Court, on its own initiative and prior to review of the issue by the Court of Special Appeals, granted the petition filed by Design Kitchen and Baths and its insurer, Princeton Insurance Co., the appellants, for a writ of certiora ri. Design Kitchen and Baths v. Lagos, 378 Md. 176, 835 A. 2d 1103 (2003). We shall affirm the judgm ent of the C ircuit Court. I. The appellee , while op erati ng a saw in the em ploy of Design Kitchen and Baths, sustained a n injury to his left hand, w hich require d, in addition to other me dical treatme nt, two su rgical pr ocedu res to rep air. As a result, he filed a claim for workers compensation with the Commission. Aside from the issues of accidental injury, causal relationship, average weekly wage, and who was the responsible insurer, the Commission was required to address, at the insistence of the appellants, the appellee s eligibility, as an und ocumen ted alien, to receive workers compensation benefits. The parties agree that the facts surrounding the appellee s injury meet all the necessary requirements of a compensab le injury under the Maryland Worker s Compensation Act and that, but for the appellee s undocumented/illegal resident status,1 his claim would be com pensab le. The Commission found in favor of the appellee. It held that the appellee suffered an accidental injury arising out of and in the course of employment on August 20, 2001; and [found] that the disability of the claimant is the result of the aforesaid accidental injury; and that as a result thereof the claimant was temporarily totally disabled from May 14, 2002 to June 1 7, 2002 inclusiv e. The appellants filed a petition for judicial review in the Circuit Court for M ontgomery Cou nty. They subse quently filed a motion for summ ary judgment, relying on the appellee s undocumented alien status and, specifically, his answer to interrogatories, in particular, Interrogatory No. 1, in which the appellee confirme d that he had no soc ial security number. 1 Before the Commission, the appellee was instructed by his counsel not to respond to any questions regarding his resident status and social security number. Nevertheless, the appellee s counsel c onceded that he [the appellee] d id not have a social secu rity number at the time he sustained the injury to his hand. This is important because: For an alien to be authorized to work in the United States, he or she must possess a valid social security account number card, § 1324a(b)(C)(i), or other documentation evidencing authorization of employment in the United States which the Attorney General finds, by regulation, to be acceptable for purposes of this section, § 1324a(b)(C)(ii). See also § 1324a(h)(3)(B) (defining unauthorized alien as any alien [not] authorized to be so emplo yed by this c hapter o r by the A ttorney G eneral ). Hoffman Plastic Compounds, Inc. v. N.L.R.B. 535 U.S. 137, 148 n. 3, 122 S. Ct. 1275, 1282 n. 3,152 L . Ed. 2d 271, 281 n . 3 (2002). 2 The appellee cross-moved for summ ary judgm ent. The Circuit Court denied the appellants summary judgment motion and granted the appellee s cross mo tion for sum mary judgm ent. It then remanded the case to the Com mission . The appellants, in response, timely noted an appeal. As indicated, we granted certiorari on our own motion to consider what we disce rn to be the sole issue presented by this appeal, whether the appellee s undocumented worker status affec ts his eligibility to receiv e worke r s compe nsation ben efits under th e Act. 2 II. The appellants contend that the appellee s status as an undocumente d/illegal alien prohibits his legal employment, thus precluding his being, or being able to prove that he is, 2 In their brief, the appellants presented three issues: A. In an appeal from the Workers Compensation Commission, did the trial court err as a matter of law in granting summary judgment to the Claimant/Appellee on the issue of whether the Claimant, as an undocumented alien is entitled to benefits pursuant to the Maryland Worke rs Comp ensation A ct? B. In an appeal from the Workers Compensation Commission, did the trial court err as a matter of law in granting summary judgment to the Claimant/Appellee on the issue of whether the Claimant, as an undocumented alien, is an employee under the terms of the Maryland Worke rs Comp ensation A ct? C. In an appeal from the Workers Compensation Commission, did the trial court err as a matter of law in granting summary judgment to the Claimant/Appellee on the issue of whether the Claimant, as an undocumented alien, is in direct conflict with federal immigration law and policy as set forth in the Immigration Reform and Control Act of 1986 and the United States Supreme Court holding in Hoffman Plastic Compounds v. NLRB, [535 U. S. 137, 122 S. Ct. 1275, 152 L. Ed. 2d 271(2002)]? Although each of these questions approaches the issue from a different perspective and requ ires, for resolu tion, somew hat differen t analyses, the reso lution of ea ch directly addresses the issue we have identified, whether the appellee s undocumented worker status affects his eligibility to receive worker s compensation benefits under the Act. 3 a covered employee. Mo re particularly, they arg ue that, inasm uch as the a ppellee is prohibited by his undocumented/illegal alien status from entering into an employment contract and, in an y event, any alleged contract of employment is void as it is in direct conflict with the Immigration Reform and Control Act of 1986, his claim for workers compensation benefits must be denied. This result is mandated, they submit, by the absence of an em ploym ent c ontract - [w ]itho ut a socia l security n umber, there can be no legal contract for hire - and the lack of current case law and immigration policy favorable to the appellee s position. It is critical to the appellants argument that § 9-202 does not expressly address the effect undocumented/illegal alien status and/or illegal employment for other than minors has on covered employee status. Of equal significance to their argument is the clarity of § 9-202; because it is a provision of the Workers Compensation Act, a remedial statute, it is subject to the rule that, [the Act] should be construed as liberally in favor of injured employees as its provisions will permit in order to eff ectuate its benevolent purposes. Any uncertainty in the law should be resolved in favor of the claimant, Harris v. Board of Education of How ard Cou nty, 375 M d. 21, 57, 82 5 A. 2d 3 65, 387 (2 003); Podgurski v. OneBeacon Ins. Co., 374 Md. 133, 142, 821 A. 2d 400, 406 (2003) (citing Watson v. Grimm, 200 Md. 461, 472, 90 A . 2d 180, 18 5 (1952)); Baltimore v. Cassidy, 338 Md. 88, 97, 656 A. 2d 757, 761-762 (1995) (quoting Victor v. Proctor & Gamble Mfg. Co., 318 Md. 624, 629, 569 A.2d 69 7, 700 (19 90)); Lovelette v. Mayor & C ity Council of Baltimore, 297 Md. 271, 282, 465 A. 2d 1141 , 1147 (19 83), and thu s interpretation of its provisions may depend upon 4 whether its terms are cle ar or ambig uous. As to the latter point, the appellants m aintain that, rather than ambiguous or unclear, § 9-202 is simply silent on the issue of the effect of undocumented/illegal alien statu s or il lega l emp loyment o n elig ibility for workers compensation benef its. Conseq uently, they assert, libera l interpretation o f § 9-202 , in that regard , is neithe r require d nor p ermitted . Also essential to the appellants argument is the Immigration Reform and Control Act ( IRCA ), 8 U.S.C .A. § 1324, and its interpretation by the Supreme Court in Hoffm an Plastic Compounds, Inc. v. National Labor Relations Board , 535 U.S. 137, 122 S. Ct. 1275, 152 L. Ed. 2d 271 (2002). Characterized by the Supreme Court as a comprehensive scheme, Hoffman Plastic Compounds, 535 U.S. at 147, 122 S. Ct. at 1282, 152 L. Ed. 2d at 281, by its enactment of the IRCA, Congress declared that it is unlawf ul for a pers on or othe r entity to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien[3] with respect to such employment. 8 U.S.C. § 1324a (1) (a). 3 An unauthorized alien is one who is not lawfully present in the United States or is not lawfully authorized to work in the United States. Hoffm an Plastic Compou nds, Inc. v. National Lab or Relations Board , 535 U.S. 137, 147, 122 S. Ct. 1275, 1282, 1 52 L. E d. 2d 27 1, 281 ( 2002) , citing 8 U . S. C. § 1 324 a (h ) (3). See Rios v. Ryan Inc. Central, 35 Va . App. 4 0, 47, 54 2 S. E. 3 d 790, 7 93 (20 01) (qu oting 8 U.S.C . § 1324 a (h )(3) (1994) (defining u nauthorize d alien as on e who, at th e time of em ployment, is not either: (A ) an alien law fully admitted f or perman ent residenc e, or (B) auth orized to be so em ployed b y this chap ter or by th e Attor ney Gen eral. ). See also The Reinforced Earth Co. v. Wo rkers Compen sation Appeal B oard, 570 Pa. 464, 468 n.3, 810 A. 2d 99, 101 n.3 (2002). 5 Emphasizing the reasoning of the Supreme Court in Hoffm an Plastic Compounds, that the award o f backpa y to an illegal alien, who legally could not have earned the wages upon which the backpay is based, who fraudulently obtained the job in the first place and whose qualification to receive it depended on his remaining in the country illegally, trivialize[s] the immigration laws, it also condones and encourages future violations, id. at 150, 122 S. Ct. at 1284, 15 2 L. Ed. 2d at 283, the ap pellants ana logize that case to this one.4 They reason: Regardless of whether it was the Claimant or the Employer who violated the IRCA, it is the Claimant that seeks indemnity and medical benefits for wages he could not h ave legally earned at a job, wh ich was b orne of a f raudulent a ct. The Supreme Court made no distinction as to who circumvented the IRCA, only that the undocumented alien was n ot eligible for b ackpay as a re sult of his undoc umen ted statu s. The appellants re ly heavily on the V irginia experience, as well. They point out that the Virginia Supreme Court, presented with the identical issue with wh ich this case p resents this Court, under a similar factu al pattern, construed § 65.2-101 of the Virginia Workers 4 We want to make it clear that this case is in no way analogous to Hoffm an Plastic Compounds. They differ in at least three sig nificant resp ects: (1) the ap pellant in Hoffman Plastic Compounds was unlawfully terminated for his participation in a union organizing campaign, unlike in the instant case where the appellee sought workers compensation benefits after he was injured in the course of performing his employment duties; (2) the appellee in the instant case actually performed his duties and was in the process of performing them when he was injured, while the appellant in Hoffm an Plastic Compounds sought, and was awarded, back pay for being wrongfully discharged; and (3) the appellant in Hoffman Plastic Compounds produced fraudulent documents to establish his legal authority to work in the United States, while the appellee in the instant case simply lef t the spa ce for h is social s ecurity nu mber b lank on his emp loyment a pplicatio n. 6 Compensation Act, 5 the Virginia analog to § 9-202, in conjunction with the IRCA, concluding that the claimant, an illegal alien, was not an employee under the Virginia A ct. Granados v. Windson Development Corp., 257 Va. 103, 108-109, 509 S.E.2d 290, 293 (1999). The court explained: Granados was not in the service of Winds on under any contract of hire because, under the Immigration Reform and Control Act of 1986, an illegal alien cannot be employed lawfully in the United States. See 8 U.S.C. § 1324a; see also Code § 40.1-11.1.[6] Therefore, Granados was not eligible to receive compensation benefits as an employee under the Act because his purported contrac t of hire was v oid and unenf orceab le. Id. Subsequent to the Granados case, and in response to it, the V irginia Legislature amended § 65.2- 101 to b roaden the def inition o f emp loyee. That statute now provides, as relev ant, that a n em ploye e is [e]very pers on, including aliens and minors, in the service of another unde r any contract of hire or appren ticeship , written or impli ed, whether lawfully or un lawfully e mployed. (Emphasis adde d). See Rios v. Ryan, 542 S.E.2d 790, 5 Section 65.2-1 01 of th e Virgi nia W orkers Com pensat ion Ac t, in mate rial part, defined an [e]mployee as [e]very person, including a minor, in the service of another under a ny contra ct of hir e. 6 Va. Code Ann. §§ 40.1-11.1 provided , as pertinent: It shall be unlawful and constitute a Class 1 misdemeanor for any employer or any person acting as an agent for an employer, or any person who, for a fee, refers an alien who cannot provide documents indicating that he or she is legally eligible for employment in the United States for employment to an employer, or an officer, agent or representative of a labor organization to knowingly employ, continue to employ, or refer for employment any alien who cannot provide documents indicating that he or she is leg ally eligible for em ploymen t in the U nited S tates. 7 792 (Va. Ap p. 2001) What the appellants find signific ant about the Virginia experience, and persuasive, as well, is that the original statute was silent as to the issue of undocumented/illegal aliens. It was an act of the Virginia Legislature, not the Com monw ealth s a ppellate courts, th at amen ded the statutory d efinition of em ployee. III The definition of covered employee is set forth in Md. Code (1991, 19 99 Rep l. Vol.), § 9-2 02 of the L abor and Employm ent Article. It is: (a) In general. - Except as otherwise provided, an individual, including a minor, is a covered employee while in the service of an employer under an express or implied contract of apprenticeship or hire. (b) Unlawful em ployment - Minors. - A minor may be a cove red emplo yee under this section even if the min or is em ployed u nlawf ully. Pursuant to subs ection (a ), an employee must meet two conditions to qualify as a covered emplo yee, he or she must: (1) be in the service of an employer ; and (2) that service must be in connection with an express or implied contract of apprenticeship or hire. Subsection (b) makes express, as to minors, what subsection (a) does not explicitly address with respect to other employees, that unlawful employment of a minor does not preclude the minor from being a cove red em ployee. We are presented with an issue of statutory interpretation. The goal with which we approach the interpretation of a statute is to determine the intention of the Legislature in enactin g it. Mayor and City Cou ncil of Baltimore v. Chase, 360 Md. 121, 128, 756 A. 2d 987, 991 (2000). Indeed, ascertain[ing] and carry[ing] out the real intention of the 8 Legisla ture, is the car dinal ru le of sta tutory con struction , Mazor v. D ep t of Correction, 279 Md. 355, 360, 369 A. 2d 82, 86 (1977) citing State v. Fab ritz, 276 Md. 416, 421, 348 A. 2d 275, 278 (197 5); Fairchild v. M aritime Air Serv., 274 Md. 181, 185, 333 A. 2d 313, 315-16 (1975); Purifoy v. Merc.-Safe Dep. & Trust, 273 Md. 58, 65, 327 A. 2d 483, 487 (1974), and it is to that cano n that we tu rn first. In examin ing a statute we give words their ordinary and natural mean ing. Chase, 360 Md. at 128, 756 A. 2d at 991, citing Oaks v. Con nors, 339 Md. 24, 35, 660 A. 2d 423, 429 (1995); Montgomery County v. Buckman, 333 Md. 516, 523, 636 A. 2d 448, 4 51 (1994 ); Condo n v. State, 332 Md. 481, 491, 632 A. 2d 753, 755 (1993); Harris v. State, 331 Md. 137, 145-146, 626 A. 2d 946, 950 (1993). Moreover, we read the statute so that no word, phrase, clause or sentence is rendered surplusage or mea ningles s. Buckman, 333 M d. at 524, 63 6 A. 2d a t 452; Condon, 332 Md. at 491, 632 A. 2d at 755; Prince George s Co. v. W hite, 275 M d. 314, 3 19, 340 A. 2d 2 36, 240 (1975 ). Where the words of a statute, constru ed accord ing to their common and everyday meaning, are clear and unambiguous and express a plain meaning, the Court will give effect to the statute as the language is written . Moore v. Miley, 372 Md. 663, 677, 814 A. 2d 557, 566 (2003). Thus, when the statutory language is plain and unamb iguous, a co urt may neither add nor d elete language so as to reflect an intent not evidenced in that language, Condon, supra, 332 Md. at 491, 632 A. 2d at 758, nor may it construe the statute with forced or subtle interpretations that limit or exte nd its application. Id. (quoting Tucker v. Fireman's Fund Insurance Co., 308 M d. 69, 73 , 517 A . 2d 730 , 732 (1 986)). 9 Both parties agree that § 9-202 is not ambig uous.7 We also agree. Moreover, we have no doubt that the clear and unambiguous language of § 9-202 encompasses undocumented alien s. Th e statute p lainl y and simp ly states that, [e]xcept as otherwise provid ed, a covered employee is characterized by two elements: he or she, pursuant to an express or implied contract of apprenticeship or hire is in the service of an employer. When the plain lang uage of th e statute is app lied to the fac tual circumstances sub judice, 7 The appellants maintain that the fact that § 9-202 does not expressly mention aliens and, with respect to individuals other than minors, the lawfulness of the employme nt simply mea ns that it is silent on these points ; it does not ren der the statute ambiguous, thus triggering the liberal interpretation that we have held applies to remedial statutes. We are not persuaded. Statutes do not often mention every one, or category, of the subjects to which they apply. Nevertheless, we regularly interpret those statutes and apply them, when appropriate to whatever object they are determined to relate. As the Amici, Public Justice Center, National Employment Law Project and National Immigratio n Law C enter, point o ut: The statu te is silent on this q uestion to pr ecisely the sam e extent that it is silent on the question of whether, for example, women, or individuals who are left-handed, can qualify as covered employees that is to say, not at all. Undoc umented immigran ts, wome n, and left-h anded pe ople are all covered employees if they are in the service of an employer under an express or implied con tract of apprenticeship or hire. In any event, a statute s failure to address an issue logically covered by its subject or with which it was promulgated to deal is not mere silence, evoking no interpretive ramification s. Because the applicatio n of the statu te to the om itted issue is pertin ent, if not critical, to its meaning, the silence, the failure to address the issue, may itself be an ambiguity an d, where a ppropriate, d oes, and sh ould, trigger th e liberal interpre tation rule applica ble to rem edial sta tutes. See Pak v. Hoang, 378 Md. 315, 328, 835 A. 2d 1185, 1192-1193 (2003), in which we determined that the Maryland Security Deposit Act, Md. Code (1 974, 200 3 Repl. V ol.), § 8-203 o f the Rea l Property Article was a rem edial statute and applied liberal construction to resolve, favorably to the tenants, the parties for whom the statute was remedial, the question of whether reasonable attorney s fees, for which the statute pro vided, includ ed post-jud gment atto rney s fees, a m atter that the statu te simply did not add ress. 10 without giving it a libera l interpretation in favor of th e appellee, th e appellee nevertheless clearly qualifies on both accounts. The legislative history of § 9-20 2 confirm s this interpre tation. See Chase, 360 Md. at 131, 756 A. 2d at 993 (when the language of a statute is unambiguous, the resort to legislative history is a conf irmatory proce ss; it is not undertak en to contra dict the plain meaning of the statute ). See Colema n v. State, 281 Md. 538, 546, 380 A. 2d 49, 54 (1977) ( [a] court ma y not as a general ru le surmise a le gislative intentio n contrary to the plain language of a statute or insert exceptions not made by Legislature ). Before its repeal and re-enactment as a new section, § 21 provided for the payment of compensation for injuries sustained or death inc urred by emp loyees engag ed in ... ex tra-haz ardous emplo yments, which it then enumerated in approximately 50 succeeding paragraphs. Md. Code (1957, 1964 Replacement Volume) Art. 101, § 21. After the repeal and re-enactment of that provision, see 1970 M d. Laws ch. 741 , the Act contained a provision expressly defining covered employee a s: Every person, including a person under eighteen years of age, whether lawfully or unlawfully employed, in the service of an employer under any contract of hire or apprenticeship, express or implied, and all helpers and assistants of emplo yees wheth er paid by the e mployer or employee, if emplo yed with the kno wledg e, actua l or con structive , of the e mployee . (Empha sis added). It was codified at Md. Code (1957, 1964 Replacement Volume, 1971 Cum. Supp.), Article 101, § 21 (b) (1).8 It remained so codified until 1991, when, pursuant 8 In the 1970 Cumulative Supplement to the 1964 Replacement Volume, an Editor s Note acknowledged the passage, during the 1970 Legislative Session, of H. B. 11 to Code Revision, the General Assembly repealed Article 101 and, to repla ce it, enacted the Labor and Employment Article. 1991 Md. Laws ch. 8. Section 9-202 is the successor provision to § 21 (b) (1). As we have seen, it is styled differently, having two subsections, rather than one, and some of the language, most notably, for our purposes, the phrase, whether lawfully or unlawfully employed, have been changed from that used in § 21 (b) (1). A Revisor s N ote detailing th e change s and their ef fect, placed following § 9-202, is instructive. It explained: RE VIS OR 'S NOTE: This section is new language derived without substantive change from former A rt. 101, § 21 (b)(1), as that item related to individuals in the service of an employer under a contract of hire. The word minor is substituted for the former phrase "person under eighteen years of a ge", fo r brevity. See Art. 1, § 24 of the Code. In subsection (a) of this section, the word individual is substituted for the former word person , since this title covers only a human being. As to the definitio n of p erson , see § 1-101 of this article. The provisions of former Art. 101, § 21(b)(4) tha t related to an in dividual in the service of a political subdivision are deleted as unnecessary in light of the broade r refere nce to a n indiv idual in t he serv ice of a n emp loyer. While the Reviso r s Note do es not high light or expla in expressly the deletion of the phrase, whether lawfully or unlawfully employed, we do know from the Note that the revisions were intended to b e without substantive ch ange. That is confirm ed by the Report of the Department of Legislative Reference. Department of Leg islative R eferen ce, Report 729, later to become Chapter 741 of the Acts of 1970, but indicated that the bill had not been signed when the supplement was prepared. 12 on House Bill 1 at 1 (January 14, 1991). That Report characterized the purpose of the revisions as being the improve ment of o rganization , elimination of obsolete or unconstitutional provisions, resolution of inconsistencies and conflicts in the law, correction of unintended gaps or omissions in the law, deletion of repetitive or otherwise superfluous language, and general improvement of language and expression. Because revisions that were substantive and policy issues were highlighted for the General Assembly and the deleted phrase was not the subject of any such highlighting, it safely may be assumed that whether lawfu lly or unlaw fully emp loyed w as delete d as rep etitive or surplus age. We agree with amici, therefore, that the Legislature, more than thirty (30) years ago, by enacting legislation that included the phrase, whether lawfully or unlawfully employed, manifested an intention that e ven unlaw fully employed w orkers be covered e mployees in the workers compensation system. That intention thirty odd years later retains its vitality; a revision made without substantive change, in no way can be construed as evidencing an intention to exclude any party to a contractual relationship, whether lawfully or unlawfully employed, from being eligible to receive workers compensation. This result is consistent with, and indeed furthers, the purpose of the Workers Compensation Act, to protect[] employees, employers, and the public alike. Polomski v. Mayor & City Council of B altimore, 344 Md. 70, 76, 684 A. 2d 1338, 1341 (1996). As we explained in Polomski, To be sure, the Act maintains a no-fault compensation system for employees and their families for work-related inju ries where compensation for lost earning capac ity is otherw ise una vailable . See Bethlehem-Sparrows Point 13 Shipyard v. Damasiewicz, 187 Md. 474, 480, 50 A.2d 79 9, 802 (19 47); Paul v. Glidden Co., 184 Md. 114, 119, 39 A.2d 544, 546 (1944). At the same time, however, the Act also recognizes the need to protect employers from the unpredicta ble nature and expense of litigation, and the public from the overwhelming tax burden of caring for the helpless human wreckage found [along] the trail of modern industry. Liggett & Meyers Tobacco Company v. Goslin, 163 Md. 74, 80, 160 A . 804, 807, (1 932); Brenner v. Brenner, 127 Md. 1 89, 192 , 96 A. 2 87, 288 (1915 ). Id. at 76-77, 684 A. 2d at 1341. For these same reasons, public policy also favors the inclusio n of un docum ented w orkers a s cove red em ployees under t he statu te. Exclusion of this class of persons from the statute s coverage would retard the goals of workers compensation laws and leave these individuals with only two options, receive no relief for work related in juries or sue in to rt. Moreover, without the protection of the statute, unscrupulous employers could, and perhaps would, take advantage of this class of persons and engage in unsafe practices with no fear of retribution, secure in the knowledge that society would have to bear the cost of caring for these injured workers. The majority of courts in states with statutes similar to ours that have considered the issue have reached the sa me result. In Dowling v. Slotnik, 712 A. 2d 396, 407-409 (Conn. 1998), the Supre me Cou rt of Connecticu t construed its statute, definin g emplo yee, in relevant part, as any person who ... [h]as entered into or works under any contract of service ... with an em ployer..., [9] to include undocumented workers within the group of work ers able to invoke the remedy provided by that State s Workers' Compensation Act. Similarly, the Superior Court of New Je rsey has held th at employee, as defined in its Workers 9 Connecticut G eneral Statutes § 31-275 (9) (A) (1). 14 Compensation Act, is synon ymous with servant, and includes all natural persons ... who perform service for an e mployer for fina ncial co nsidera tion ..., N.J.S.A. 34:15-36, and includes undocume nted workers. The court reasoned, unless undocumented aliens, like longshoremen or casual em ployees, are ex pressly exclud ed, they self-evid ently fall within the statutory definition. Fernan dez-L opez v . Jose C ervino , Inc., 671 A. 2d 1051, 1053 (N.J. Super . 1996) . See Artiga v. M.A. Patout and Son, 671 So.2d 1138, 1139 (La. App. 1996) (holding that LA.R.S. 23:1035(A), making the provisions of the Work ers Compensation Act appl[icable] to every person performing services arising out of and incidental to his employment in the cou rse of his own trade, bu siness, or occupation, or in the course of his e mployer 's trade, b usiness, or occupation, included undocumented workers); Lang v. Landeros, 918 P.2d 404, 405-406 (Okla App 1996) (interpreting Oklahoma s workers compen sation statute, w hich, in releva nt part, define d emplo yee to mean any person engaged in the employment of any person, firm, limited liability company or corporation covered b y the terms of th e Work ers' Comp ensation A ct ); Reinforc ed Earth Co. v. W.C.A.B. (Astudillo), 749 A. 2d 1036, 1 038 (P a. Cmw lth 200 0), aff d 810 A. 2d 99 (Pa. 2002) ( Employee as defined by the Act [10] includes any natural person who performs 10 The applicable statute, 77 P.S. § 22, as pertinent, provided: The term employe, as u sed in this act is d eclared to b e synonymou s with servant, and includes All natura l persons w ho perfo rm services for anothe r for a valua ble consideratio n, exclusive of person s whose employme nt is casual in character and not in the regular course of the business of the employer, and exclusive of persons to who articles or materials are given out to be made up, cleaned, washed, altered, ornamented, finished or repaired, or adapted for sale in the worker's own home, or on other premises, not under the 15 services for another for a valuable consideration. ... The only individuals that the Act specifically excludes are person s whose em ployment is casual in nature and those considered independent con tractors from the definition of a n employee entitled to benefits. ). So, too, have c ourts that have interpreted statutes that expressly include aliens, but do not distinguish between illegal and legal aliens. See Correa v. Weymouth Farms, Inc., 664 N. W. 2d 324, 32 9 (Minn. 2003 ); Sanchez v. Eagle Alloy Inc., 658 N.W.2d 510, 516 (Mich. App., 2003). As do those courts whose statutes expressly cover aliens, whether lawfully or unlawfu lly employed. See Del Taco v. Workers' Comp. Appeals Bd., 79 Cal. App.4th 1437, 1441, 94 Cal. Rptr.2d 825, 828 (2000), Champion A uto Bod y v. Industrial Cla im App eals Office, 950 P.2d 671, 673 (Colo. App.1997), Safeharbo r Employer S ervs. I, Inc. v. C into Velaquez, 860 So.2d 984, 985-86 (Fla. App. 2003); Rivera v. Trapp, 519 S.E.2d 777, 781 (N. C. A pp. 199 9). With the exception of the S upreme Co urt of Vir ginia, see Granados, 257 Va. 103, 509 S.E.2d 290, whose decision, we have seen, was overruled by the Virginia Legislature, see Rios v. Ryan, 542 S.E.2d 790, only one court, the Wyoming Supreme Court, has construed its Workers Compensation Act as exclud ing und ocum ented w orkers. Felix v . State ex rel., Wyoming Workers' Safety and Comp ensation D iv, 986 P.2d 161 (W yo.1999). That court s interpretation is understandable, moreover, because the statute defined employee in terms of legally employed minors and aliens autho rized to work by the United States department control or manage r of the employer[.] 16 of justice, immig ration and n aturalization se rvice. Thu s, the court reasoned, applying canons of statutory interpretation: Wyo. Stat. Ann. §§ 27-14-102(a)(vii) expressly lists aliens authorized to work by the United States department of justice, immigration and naturalization service as employees w ho may be covered by workers compensation. This specific phrase is meaningless if all aliens are considered employees whether authorized to work in this country or not. If the legislature intended that all employed aliens be covered by workers' compensation it would not have precisely stated that aliens authorized to work here are conside red emplo yees. To give effect to all the language in the statute, we conclude that an alien not authorized to work in the United States is not an emp loyee un der §§ 2 7-14-1 02(a)(v ii). Felix, 986 P .2d at 16 4. The arguments advanced by the appellants, namely, that undocumented/illegal alien status prohibits legal employment and, thus, precludes one in that status from being, or being able to prove tha t he or she is, a covered employee an d, in effect, tha t Hoffm an Plastic Compounds, supra, 535 U. S. 137, 122 S. Ct. 1275, 152 L. Ed. 2d 271, makes clear that the IRCA preempts State wo rkers compensation acts or, at the least, precludes an award of workers compensation b enefits to an undocu mented wo rker, as contradictory of the IRCA and that decision, have been rejected by the courts that have considered them. The Court in Hoffman Plastic Compounds addressed the applicatio n of the IR CA to undocumented workers. There, the e mployer had terminated its employee, later determined to have been an illegal alien, for engaging in pro-union activities. Discharge of a worker for that reason was unlawful. For that reason and despite his illegal alien status, the National 17 Labor Relations Board ( the NLRB ) awarded the discharged employee backpay for the employer s wrongful termination. Id. at 140-41, 122 S. Ct. at 1278-79, 152 L. Ed. 2d at 27677. The Supreme Court reversed, concluding that Congress would not have intended that backpay be paid to an employee where but for an employer s unfair labor practices, an alien-employee would have remained in the United States illegally, and continued to work illegally, all the while successfully evading apprehension by immigration authorities. Id. at 149, 122 S. Ct. at 1283, 152 L. Ed. 2d at 282. In fact, the Court stated its view that award[ing] backpay to illegal aliens would unduly trench upo n explicit statutory prohibitions critical to federal immigration, as expressed in the IRCA. Id. at 151, 122 S. Ct. at 1284, 152 L. Ed.2d at 283-284. As previo usly indica ted, supra, the Hoffman Plastic Compounds Court acknowledged the comprehensiveness of the IRCA regime, the scheme Congress adopted to prohibit[] the employment of illegal aliens in the United States. Hoffman Plastic Compound s, 535 U.S. at 147, 122 S. Ct. at 1282, 152 L. Ed. 2d at 281. It also recognized that under that regime, it is impossible for an un docume nted alien to o btain emp loyment in the U nited States without some party directly contravening explicit congressional policies. Either the undocumented alien tenders fraudulen t identification, which subverts the cornerstone of IRC A's enforcement mechanism, or the employer knowingly hires the undocumented alien in direct co ntradict ion of its IRCA obligati ons. Id. at 148-49, 122 S. Ct. at 1283, 152 L. Ed. 2d at 282. With that backdrop, the Court offered a rationale for its conclusions: 18 As we have prev iously noted, IRCA fo rcefully made combating the employment of illegal aliens central to [t]he policy of immigration law. INS v. National Center for Immigrants' Rights, Inc., 502 U.S. 183, 194, and n. 8, 112 S.Ct. 551, 116 L.E d.2d 546 (1991 ). It did so by establishing an extensive employment verification system, §1324a(a)(1), designed to deny employment to aliens who (a) are not lawfully present in the United States, or (b) are not lawfully authorized to work in the United States, § 1324 a(h)(3). ... This verification system is critical to the IRCA regime. To enforce it, IRCA mandates that emplo yers verify the iden tity and eligibility of all new hires by examining specified documents before they begin work. § 13 24a(b). If an alien applicant is unable to p resent the required documentation, the unauthorized alien ca nnot be hired. § 1324a (a)(1). Similarly, if an emplo yer unknow ingly hires an unauthorized alien, or if the alien becomes una uthorized while em ployed, the employer is compelled to discharge the worker upon discovery of the worker's undocumented status. § 1324a(a)(2). Employers who violate IRCA are p unishe d by civil f ines, § 1324a(e)(4)(A), and may be subject to crim inal prosecution, § 1324 a(f)(1). IRCA also makes it a crime for an unauthorized alien to subvert the employer verification system by tendering fraudulent documents. § 1324c(a). It thus prohibits aliens from using or attem pting to use any forged, c ounterfeit, altered, or falsely made document or any document lawfully issued to or with respect to a person other than the possessor for purposes of obtaining employment in the United States. §§ 1324c(a)(1)-(3). Aliens who use or attempt to use such docume nts are subje ct to fines and criminal prosecution. 18 U.S .C. § 15 46(b). Id. at 147- 48, 122 S.Ct. at 1282-83, 152 L. Ed. 2d at 281-82. This rationale has provided the foundation for arguments by employers that undocumented/illegal workers are ineligible for workers compen sation benefits because such benefits are pre-empted or because emplo yment co ntracts w ith such work ers are ille gal. Before the Connecticut Supreme Court in Dowling were two arguments advanced by the employer/respondent, directly raising preemption. The employer argued that (1) because it requires an e mployer to m ake payme nts to the undocumented worker, a workers 19 compensation award co nstitutes a civ il sanction against the employer, which is preempted by the IRCA, § 1324 (a) (h ) (2) and (2) a n award of work ers comp ensation is im pliedly preempted by the IRCA because it contravenes the purpose of the IRCA. The court rejected both ar gume nts. With resp ect to direct pre emption, it co ncluded: Section 1324a (h)(2), the express preemption provision of the Immigration Reform Act, only prohibits that states from imposing civil sanctions upon those who employ undocumented aliens. Because workers compensation benefits are designed [] to compen sate the worker for injuries arising out of and in the cours e of emp loyment, without regard to fa ult, by imposing a form of strict liability on the employer []; (emphasis added) Panaro v. Electrolux Corp., 208 Co nn. 589, 59 8-99, 545 A. 2d 10 86 (1988 ); Jett v. Dunlap, 179 Conn. 215, 217, 425 A. 2d 1263 (1979); an award of such ben efits reasona bly cannot be described as a sanction. 712 A. 2d at 403. As to the implied preemption argument, it opined: The primary purp ose of the I mmigration Reform Act was to establish procedures that make it more diff icult to employ undocumented workers and to punish employers who knowingly offer jobs to those workers. National Labor Relations Board v. A.P.R.A. Fuel Oil Buyers Gro up, Inc., supra, 134 F.3d at 55-56; see United States v. Todd Corp., 900 F.2d 164, 16 5 (9 th Cir. 1990). The Immigration Reform Act itself gives no indication that Congress intended th e act to preem pt state laws wh enever state laws ope rate to benefit undocumented aliens. Indeed, [ ] it is clear from [the] legislative history [of the Immigration reform Act] that Congress anticipated some conflict between the new s tatute an d vario us state ... s tatutes. 712 A. 2d at 404. Other c ourts ha ve reac hed sim ilar result s on the preem ption/p reclusio n issue. See 20 Correa v. Waymouth Farms, Inc., 664 N.W.2d 324, 329 (Minn. 2003) ( As written, the IRCA does not prohibit unauthorized aliens from receiving state workers comp ensatio n bene fits.... Thus, we con clude that the IRCA was not in tended to p reclude the authority of states to award workers compensation benefits to unauthorized alien s. ); Safeharbor Employer Servs. I, Inc. v. Cinto Velaquez, 860 So.2d 984, 986 ( IRCA does not contain express preemption language nor does it so thoroughly occupy the field as to require a reasonable inference that Congress left no room for states to act. Further, since Hoffman found benefits other than backpay to be applic able to illegal aliens, there is no conf lict between state and federal law in this case. ); Reinforced Earth Co. v. W.C.A.B. (Astudillo), 749 A. 2d 1036, 1038 ( the IRCA does not, in and of itself, preclude an illegal alien from being considered an employee for purpo ses of the A ct. ); Ruiz v . Belk M asonry C o., Inc., 559 S.E.2d 249,252 (N.C. App. 2002) ( we hold that federal law prohibiting the hiring of illegal aliens does not prevent illegal aliens from being include d in the North Ca rolina Workers Comp ensation definition of em ployee, n or does federa l law pr event ille gal alien s, based solely on immigration status, from rece iving workers com pensation benefits. ). The Dowling court als o rejecte d the ap pellants disab ility argum ent, stating emp hatic ally, [a]lthough we agree with the respondents that under the [Workers Compensation A]ct ... coverage must arise from a contract of employment, either express or implied ... we do not agree that an employment agreement between an employer and an illegal alien is so tainted by illegality that, as a matte r of law, the agreeme nt cannot c onstitute a contra ct of ser vice. 7 12 A. 2 d at 409 (citation s omitte d). Although noting its superficial 21 appeal, the court in Fernandez-Lopez v. Cervino, 671 A. 2d at 1053, also rejected the argument advanced by the em ployer: If [petitioner] is an illegal alien, it is against Federal law for him to be in the U nited States a nd work here. The refore, it appears that his contract of employment must be illegal. See also Champ ion Auto Body v. Ind ustrial Claim Appea ls Office, 950 P.2d 671, 672-73 (rejecting argument that, because the claimant was an undocumented alien, employers were precluded from hiring him pursuant to the provisions of the Immigration Re form and Control Act of 1986 (IRCA) .... Therefore, ... the claimant was under a legal disability which prevented him from working and which precluded him, as a matter of law, from proving any wage loss for purpo ses of sho wing en titlement to temporary pa rtial disability benef its ); Lang v.Landeros, 918 P.2d at 405 (sam e). We hold that an undocumented worker injured in the course of his employment is a covered employee under § 9-202 and, therefore, is eligible to receive worker s comp ensatio n bene fits. JUD GM ENT AFF IRM ED, W ITH C OST S. 22 IN THE COURT OF APPEALS OF MARYLAND No. 82 September Term, 2003 DESIGN KITCHEN AND BATHS, ET AL. v. DIEGO E. LAGOS Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Dissenting Opinion by Harrell, J. Filed: September 12, 2005 The Majority opinion, after construing the language and leg islative history of § 9-202 of the Labor and Em ployment A rticle, holds that a ppellee s un docume nted wo rker status is no bar to his receipt of work ers comp ensation be nefits unde r the Act. M aj. slip op. at 11. I reach the opposite conclusion. Section 9-202 of the Labor and Employment Article, the key statutory provision at issue here, provides that the definition of a covered employee is: (a) In general.-Except as otherwise provided, an individual, includ ing a minor, is a covered employee while in the service of an employer under an express or implied contract of apprenticeship or hire. (b) Unlawful employment-Mino rs.- A minor may be a covered employee under this s ectio n even if the m inor is em ploye d unlawfully. Maryland Code (1991, 1999 Repl. Vol.), Labor and Employment Article, § 9-202.1 The Majority opin ion appro priately recites the primary canon of statutory construction: the Court will ascertain and carry out the real intention of the Legisla ture. Maj. slip op. at 8. In do ing so, the C ourt will read the sta tute so that no word, phrase, clause or sentence is rendered surplusage or meaningless. Maj. slip op. at 9 (citations omitted). If the statute s words are plain and unambiguous, then the Court will give effect to the statute as the langua ge is written an d will refrain from add ing or deletin g languag e to reflect an intent not evidenced in that language. Maj. slip op. at 9 (citatio ns omi tted). 1 Unless oth erwise pro vided, all statuto ry references a re to sections w ithin Maryland s Worke rs Comp ensation A ct, codified a t Maryland C ode (199 1, 1999 R epl. Vol.), Labor and Employment Article, § 9-202. Yet, the Majority neglects to abid e by these statuto ry construction p rinciples in application to the presen t case. The M ajority opinion declares that § 9-202 plainly and simply states that, [e]xcept as otherwise provided, a covered employee is characterized by two elements: [1] he or she, pursuant to an expres s or implied c ontract of a pprenticesh ip or hire [2] is in the service of an employer. M aj. slip op. at 10 (citations omitted). That summation, however, describes only the content of sub-section (a) of the statute. Section 9202 is made up of two sub-sectio ns. The Majority opinion ignores the second sub-section in its ana lysis. Doin g so ren ders su b-sectio n (b) su perfluo us and nugato ry. Section 9-202(b) provides that minors are covered employees even if unlawfully employed. Although neither § 9-202(a) nor (b) expressly states that an adult, in order to be considered a covered e mployee, is sub ject to a lawful employment requirement, it is implied not only by the language and structural position of § 9-202(b), but also by its mere existence. The Majority s construction, in effect, revises the plain language of § 9-202(b), as well as the structure of § 9-202, to state that both minors and adults may be covered e mployees ev en if employed unlawfully. By ignoring § 9-202(b), the Majority creates an interpretation reflecting an intent not evidenced by the Legislature s chosen la nguage, c onstruing it w ith a forced interpretation that hyper-extends its plain meaning. The plain meaning of the langua ge of th e full sta tute prev ents me from jo ining th e Maj ority opini on. Furthermore, the Majority s use of legislative history here is inconsistent with established princip les of sta tutory con struction norma lly applied by the Co urt. After finding the statute to be unambiguous, the Majority reflects upon the legislative history of § 9-202 2 as part of a claime d con firmato ry proces s. Maj. slip op. at 11 (citations omitted). H ere it appears that the Majority is using legislative history to justify its tacit disregard of § 9-202(b). We hav e quite recen tly and freque ntly abided by the c anon that: [i]f there is no ambiguity in [the statute s] language, either inherently or by reference to other relevant laws or circumstances, the inquiry as to legislative intent ends; we do n ot need to resort to the various, and sometimes inconsisten t, external rules of construction, for the Legislature is presumed to have mean t what it s aid and said w hat it me ant. Kushell, IV v. D ept. of Natural Res., 385 Md. 563, 577, 870 A.2d 186, 193-94 (2005) (quoting Arunde l Corp. v. M arie, 383 M d. 489, 502 , 860 A.2d 886, 894 (2004)); see also Smack v. Dept. of Health and Mental Hygiene, 378 Md. 298, 304-05, 835 A.2d 1175, 117879 (2003); Maryland Div. of Labor and Industry v. Triangle Gen. Contractors, 366 Md. 407, 421-22, 784 A.2d 534, 542 (200 1); Chesap eake Am usemen ts Inc. v. Riddle , 363 Md. 16, 28, 766 A.2d 10 36, 1042 (2001); Abramson v. Montgom ery County , 328 Md. 721, 736-37, 616 A.2d 8 94, 901 -02 (19 92). For instance, in Triangle General Contractors, the Court interpreted the meaning of a provision of the Maryland Prevailing Wage Act, after recodification, finding its language to be clear and unambiguous and affecting a substantive change in the statute as it existed before recodif ication. Triangle Gen. Contractors, 366 Md. at 422, 784 A.2d at 542. Though we considered the Revisor s Note to the recodification, which stated that no substantive change from the former version of the provision was intended, we were not blinded to the plain meaning of the current version of the statute, refusing to express an intention which 3 [was] not evid enced in the or iginal fo rm. Id. (quoting Welsh v. Kuntz, 196 Md. 86, 93, 75 A.2d 343, 345 (1950)). The Majority certain ly would have been justified in reviewing the legislative history of the predecessor to § 9-202 (Md. Code, Art. 101, § 21(b)(1)), including the Revisor s Notes to the recodif ication and the Repo rt of the Department of Legislative Reference on House Bill (H.B.) 1-1991, had it found § 9-202 to be ambiguous. 2,3 Only upon the occasion that the statute s plain meaning is uncertain would the presumption arise that a recodified version does not affect a substantive change unless the Legislature s intent to modify the law was unmistakable.4 Triangle General Contractors, 366 M d. at 422 -23, 78 4 A.2d at 543. In addition to the Rev isor s Note s and the R eport of the Departm ent of Le gislative Reference on H.B . 1 cited in the M ajority opinion, it should be noted that the recodification was not merely a renumbering or a series of stylistic changes to the prior relevant law. Chapter 8 of the Acts of 1991 (enacted H .B. 1-1991 ); see also Triangle General Contractors, 2 Although the Majority opinion states that the statute is not ambiguous, it later states that the statute s silence about whether lawful employment is a requirement for adults creates an ambiguity in the statute. Maj. slip op. at 10 n.7. 3 Section 9-202 may be ambiguous, but not for the reason set forth in footnote 7 of the Majo rity opinion. Eithe r there is no law ful emplo yment require ment for a dults because none is expressly provided in sub-section (a), as the Majority opines, or there is a lawful employment requirement for adults, as I believe the plain meaning reveals. That great minds disagree as to the section s meaning might create an ambiguity that necessitates a look at the legislative history to ascertain the Legislature s true intent. The evidence found in the legislative h istory of § 9-20 2 is noneth eless incon sistent. 4 A presumption that the Court overcame in both Triangle General Contractors, 366 Md. at 422, 784 A.2d at 542, and Abramson, 328 Md. at 736-37, 616 A.2d at 901-02. 4 366 Md. at 422, 784 A.2d at 543 (discussing the Maryland Prevailing Wage Act recodification process). Yet, the Legislature unanimously enacted, relatively early in the 1991 session (21 March 1991) and without amendment, the 845-page H.B. 1 that became the Labor and Employment Article. The Legislature turned to the subject of the Workers Compensation Act an additional five times during the 1991 session (enacted after H.B. 1 was passed), enacting b oth substan tive and stylistic changes to various sections, though not to § 9-202 (all of these bills addressed other sections of the new Labor and E mployment Article). See Chapters 21, 440, 510, 575, 669 of the Acts of 1991. That these other bills made no further changes or corrections to § 9-202 as enacted in H .B. 1, suggests that the Legislature at least acquiesced in the changes, even the substan tive ones, m ade by H.B . 1 in reenacting the Workers Compensa tion Act as part of the L abor and Em ployment Article, the Revisor s Note notwithstanding. Perhaps the Majority rationalizes its interpretation of the statute because it believes that H.B. 1 mistakenly failed to include adults in § 9-202(b) when it re-structured former Md. Code, Art. 101, § 21(b)(1). The predecessor to § 9-202, § 21(b)(1), provided that [e]very person , including a person under eighteen years of age, whether lawfully or unlawfu lly employed . . . was a covered employee. The clause whether lawfully or unlawfu lly employed in § 21(b)(1) most likely modified every person adults and minors, although there is room for grammatical debate on that score. The Code Revision Commission that drafted H.B. 1-1991 may have misunderstood in the reconstruction process the grammatical sense of the sentence in the predecessor statute and revised the section into 5 two parts; be that a s it may, there is no doubt in my mind that the clause whethe r lawfully or unlawfully employed in § 9-202(b) now modifies only minors. Whether the Legislature and its advisors/staff in 1991 blundered into the current structure of § 9-202, the Majo rity s argument that the Legislature intended no substan tive chang es to the law in its adoption of H.B. 1-1991 is hindered because the Legislature had ample opportunity to correct the mistake (if a mistake it was) later in the same session as well as over the years since. Despite the potential for a drafting error, we should not deign to repair the presumed damage. The Court, though charged with the duty to ascertain and effectuate the intent of the Legisla ture, is no t obliged to fix the Legisla ture s er ror, if the re is one here, especially when a statute otherwise appears clearly written on its fa ce. A better po licy, and one us ually followed by this Co urt, is to em ploy a more disciplined approach and apply the plain meaning rule of statutory construction in such instances. See Kushell, IV, 385 Md. at 577, 870 A.2d at 193-94; Smack, 378 Md. at 304-05, 835 A.2d at 1178-79 ; Triangle General Contractors, 366 Md. at 421-22, 784 A.2d at 542; Chesap eake Am usemen ts, 363 Md. at 28, 766 A.2d at 1042; Abramson, 328 M d. at 736 -37, 61 6 A.2d at 901- 02. Thus, even had the Majo rity found § 9-202 to be ambiguous (which perhaps it did see supra note 2) an d conclu ded from its leg islati ve histor y that the Legislature intended to provide that both m inors and a dults were not subject to a lawful employment requireme nt, the Court i s not in a legitima te positio n to rev ise the sta tute by jud icial fiat. To do so is inconsistent with our more modern cases a nd extend s the Cou rt s reach beyon d limits presuma bly we would respect in a case with less compelling social and policy implications. 6 Therefore, I respectfully dissent. I would reverse the judgment of the Circuit Court for Mo ntgo mery Cou nty. 7