Human Resources v. Howard

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Department of Human Resources, Anne Arundel County Department of Social Services v. Sherri Howard, No. 53, Sept. Term 2006. APPELLATE PROCEDURE - COURT OF SPECIAL APPEALS - HEARING AND DECISION OF CASES IN BANC - SPECIALLY ASSIGNED JUDGES, INCLUDING RETIRED JUDGES, ARE NOT PERMITTED TO PARTICIPATE IN THE HEARING AND DECISION OF CASES IN BANC The Anne Arundel County Department of Social Services ( the Department ) found Sherri Howard responsible for indicated child abuse of her minor son, Alexander. Ho ward appealed administratively that determination, receiving a hearing before an Administrative Law Judge ( ALJ ) of the Maryland Office of Administrative Hearings. The ALJ issued a written decision af firming the Department s finding that Howard perpetrated the physical variety of indicated child abuse by striking her son in the region of his eye, exp osing him to a substantial risk of serious eye injury. Howard so ught judicial review of the ALJ s decision, the final administrative adjudication of the matter, by the Circuit Court for Anne Arundel County. The Circuit Court reversed the administrative decision, opining that no reasonab le agency fact finder could have found Howard s act to have harmed or caused a substantial risk of harm to the well-being of her son. The c ourt conclu ded that H oward d id not intend actu ally to harm her child, thus removing her act from the scope of conduct considered to be abuse. The Department noted a timely appeal to the Co urt of Special Appeals. The case was assigned routinely to a three-judge panel consisting of two incumbent judges of the court and specially assigned, retired Judge Charles E. Moylan, Jr. Before the panel decided the appea l, the intermediate appellate court invited the parties to submit additional briefs and argue the questions anew b efore the c ourt in banc . Participating on the in banc court were the 13 incumbent members of the court and two retired judges who were specially assigned: Judge Moylan and Judge Raymond J. Thieme, Jr., who had no previous connection with the case. On 18 May 200 6, the Cou rt of Specia l Appeals , by an eight-to-se ven vote, a ffirmed th e judgment of the Circ uit Court, acc ompanie d by a multiplicity of opinions. Chie f Judge Murphy authored the lead opin ion for the eight-mem ber majority, reasoning that How ard neither acted with an intent to, nor the knowledge that her act would, cause injury. Judge Davis penned a concurring opinion, in which four other judges in the majority joined, including Judge Thieme. There were two intertwined camps of dissenting judges: one opinion was authored by Judge Moylan, joined by six incumbent judges, and the other by Judge Deborah Eyler on behalf of herself and three other incumbent judges. The Court of Appeals granted the D epartment s petition for w rit of certiorari questioning the legal correctness of the merits of the Court of Special Appeals s decision. In doing so, however, the Court added the further question: What authority does the Court of Special Appeals have to hold an en banc hearing with fifteen judges? In deciding the case, the Court n oted that this a dditional qu estion of ap pellate proce dure wa s the thresho ld question in this appeal because the p roper constitution of the interme diate appellate court sitting in banc is a prerequisite for a valid decision for review. The Court reversed based on its conclusion that there was no valid judgment by the in banc appellate court. The Court concluded that the plain language of Md. Code (1974, 2006 Repl. Vol.), Courts and Judicial Proceedings Article, § 1-4 03(c), wh ich states that [t]he concurrence of a majority of the incumbent judges of the entire cou rt is necessary for decision of a case heard or reheard by the court in ban c, proscribe s the participa tion of retired judges in hearing and deciding cases argued in banc be cause they are not incum bents. Com mon sen se dictated tha t incumbe nts may only be current officeholders and the Maryland C onstitution pro vides that jud ges only come to office by appointment of the Governor and the advice and consent of the Senate, and once so appointed, remain subject to retention elections every ten years. Thus, a retired judge who has abdicated his or her office, by operation of law or otherw ise, may no longer be considered an incum bent. Further, a judge who has been assigned specially, whether retired or active in ano ther court, is just that: assigned and not appointed. This distinction clarifies that, although s pecially assigned judges assume all the power and authority of a judge of the court on which they temporarily sit, such a vestment does not accord the specially assigned judge the corresponding office such that they become incum bents. If this were not true, the special assignment of judges routinely would expand the size of the Court of Special Appeals beyond its statutorily-prescribed maximum complement of 13 judges when no vac ancies e xist on th e court. The Court also reasoned that even if retired judges are not incumbents, § 1-403(c) of the Courts an d Judicial Pr oceeding s Article nevertheless proscribes the participation of nonincumbe nts in banc. The policy rationale for the in banc hearing and decision of cases is that it allows the active, sitting members of a court to control the court s jurisprudence. The participation of retired judges and active judges of other courts in the in banc proceedings of the Co urt of S pecial A ppeals runs co unter to this ration ale. It would also d efy logic to permit the participatio n of a judg e whose vote is not counted in the resolution o f a case. Th is is no comm entary on the in herent w isdom or faculties of the court s specially assigned judicial brethren, bu t merely reflects the intent of the Ge neral Asse mbly, which chose no t to provide for their participation in the Court of Special Appeals s hearings and decisions in banc. The Co urt also noted that its conclusion did not limit, in any way, the participation of specially assigned judges in n ormal three -judge pan els, nor did it have implications for the Court of Appeals, the operations of which are governed by a distinct constitutional scheme. Circuit Co urt for Anne A rundel Co unty Case # 02-C-04-096529 IN THE COURT OF APPEALS OF MARYLAND No. 53 September Term, 2006 DEPARTMENT OF HUMAN RESOURCES, ANNE ARUNDEL COUNTY DEPARTMENT OF SOCIAL SERVICES v. SHERRI HOWARD Bell, C.J. Raker *Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Harrell, J. Filed: March 13, 2007 * Wilne r, 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. This case prese nts an opp ortunity to consider an infrequently occurring phenomenon of appellate practice in Maryland. That phenomenon is the in banc proceeding. We focus here on the extent to which, when the Court of Special Appeals hears and decides an appeal in banc with a full complement of the thirteen incumbent members of the Court, specially assigned retired judges properly may sit also on the in banc court. With all respect to our retired appellate co lleagues, w ho supply invaluable legal exper ience and erudition in support of the mission of the interme diate appella te court, we conclude that such a s cenario is contrary to the statutory authority governing the composition and conduct of the Court of Special Appeals sitting in banc. I. FACTS The underlying facts of this case, except insofar as they supply co ntext for the largely procedu ral, but dispositive, issue we shall decide here, are not germane. Consequently, we recite a truncated version of the factual background, emphasizing rather the procedural history of this matter. The Anne A rundel Co unty Department of Social Services ( the Department ) found Sherri Howard responsible for indicated child abuse 1 of her minor son, A lexander. Howard appealed administrativ ely that determination, receiving a hearing before an Administrative Law Judge ( ALJ ) of the M aryland Office of Administrative Hearings. The 1 Indicated child abuse essentially means a credible and unsatisfactorily refuted case of physical, mental, or sexual treatment of a person under the age of 18 that has harmed or presents a substantial risk of harm to the p erson s health or welfare. Md. Code (1999, 2004 Repl. Vo l.), Fam. Law Article, § 5-7 01 (b), (e), (m) ; see also COMAR 07.02.07.12.A. ALJ issued a written decision affirming the Department s finding that Howard perpetrated the physical variety of indicated ch ild abuse b y striking her son in the region of his eye, exposing him to a substan tial risk of serious eye injury. Howard sought judicial review of the ALJ s decision, the final administrative adjudication of the matter, by the Circuit Court for Anne Arundel County. The Circuit Court reversed the administrative decision, opining that no reasonable administrative agency fact finder could have found Howard s act to have harmed or caused a substantial risk of harm to the well-being of her son. The court concluded that Howard did not intend actually to harm her child, thus removing her act from the scope of conduct considered to be abuse. The Departm ent noted a timely appeal to the Court of Special Appeals. The case was assigned routinely to a three-judge panel.2 Before the panel decided the appeal (but after initial briefing3 and oral argument before the three judge panel), the inte rmediate ap pellate court invited the parties to submit additional briefs and argue the single question anew before the court in banc. Participating on the in banc court were the 13 incumbent members of the 2 The three-judge panel was composed of Chief Judge Joseph F. Murphy, Jr., Judge Arrie W. Davis, incumbent members of the court, and Judge Charles E. Moylan, Jr., specially assigned to the panel as a retired judg e of the co urt. 3 The Department, as appellant in the Court of Special Appeals, framed the following question: Did substantial evidenc e support the ALJ s findings that Ms. Howard struck her son in the eye, leaving a two-inch bruise, and that this incident constituted in dicated child abuse? Howard, as appellee, presented the question thus ly: Did the Administrative Law Judge err when finding, as a matter of law, that the department had correctly identified Ms. Howard as a child abuser? 2 court and two retired judg es who we re specially assigned.4 On 18 May 2006, the Court of Special Appeals, by an eight-to-seven vote, affirmed the judgment of the Circuit Court. Chief Judge Murphy authored the opinion for the eight-member majority, reasoning that Howard neither acted with an intent to, nor the knowledge that her act wou ld, ca use injury. Dep t of Human Res. v. How ard, 168 Md. App. 621, 644 -45, 897 A.2d 9 04, 917-18 (200 6). Judge Davis pe nned a co ncurring o pinion, in which fo ur other jud ges in the majority joined, including Judge Thieme, espousing the view that the ALJ s decision should have been reversed solely on the basis that Howard did not intend deliberately to harm Alexander nor did she act in rec kless dis regard of the p ossibility of harm. Howard, 168 Md. App. at 652, 897 A.2d at 922. There were tw o intertwined camps of dissenting judges. One dissent, authored by Judge Moylan and joined by six incumbent judges, took issue w ith the majority s perceived lack of fealty to the principles of judicial deference to certain administrative agency determinations and reasoned that, under the substantial deference standard, the court should not have disturbed the ALJ s factual findings and resultant legal conclusion. Howard, 168 4 The in banc court was composed of Chief Judge Murphy, and Judges D avis, Hollander, Salmon, James R. Eyler, Deborah S. Eyler, Kenney, Adkins, Krauser, Barbera, Sharer, Mere dith, and Woo dward . This is the line-up, if you will, of the full complement of the current 13 incumbent members of the court. Tw o retired, spec ially assigned judges also sat with the court in banc and participated in deciding the appeal: Judge Moylan, a member of the initial three-judge panel to consider the case, and Judge Raymond J. Thieme, Jr. As best as we can discern from the record, Judge Thieme, until assignm ent to the in b anc pane l, had no p rior connec tion to the pro cessing of the appea l. 3 Md. App. at 66 3-72, 897 A.2d at 92 8-33. Judg e Moylan a lso explicated that relevant precedent made it clear that Howard s swing of the hand with the intention to make contact with her son was all that was necessary to support a finding of abuse when harm results; an intent to create h arm by sw inging at the ch ild was not req uired. Howard, 168 Md. App. at 678-79, 897 A.2d at 93 7. Four of the dissenting incumbent judges, with Judge Deborah Eyler writing, echoed Judge Moylan s sentim ents genera lly, but emphas ized, as espe cially problema tic in upsetting the ALJ s decision, the unrestrained and unannounced nature of How ard s dis cipline. Howard, 168 Md. App. at 681, 897 A.2d at 938. The Department petitioned this Court for a writ of certiorari on the question of the proper standard for administrative determinations of indicated child abuse.5 In our Order granting certiorari and issuing the w rit, we posed a further question: What authority does the Court of Special A ppeals have to hold an en banc [6] hearing w ith fifteen jud ges? T his additional question o f appellate p rocedure b ecomes a threshold question because the proper constitution of the intermediate appella te court sitting in banc is a pre requisite for a valid decision for us to review. If no valid judgment w as rendered by the Court of Special Appeals, we may not review the judgment of the Circuit Court (and thus the ALJ s decision) 5 The Department presented in its petition the following question for review: When a parent delib erately strikes a child, and injury results, should the parent be exempted from a finding of child abuse on the basis that the injury was accidental or unintention al unless the local department establishes that the parent intended the injury or acted with reckless disregard to injury? Because of our decision as to the impropriety of the in banc court s composition, we shall not reach the merits of the Department s question. 6 For an explanation of the varying spelling of this phrase, see infra n.7. 4 because th e writ of ce rtiorari was issu ed not to the Circuit Court, but rather to the Court of Special Appeals. Thus, even though we ordinarily would stand, analytically, in the shoes of the Circuit Court in reviewing the decision of the A LJ, Spencer v. Bd. of Pharmacy, 380 Md. 515, 523-24, 846 A .2d 341, 346 (200 4); Gigeou s v. E. Corr . Inst., 363 Md. 481, 495-96, 769 A.2d 912, 921 (2001), we cannot simp ly side-step the question of whether the Court of Special Appeals s judgment, a procedure point of departure for our review, was issued by a properly cons tituted in banc court. II. DISCUSSION At the outset, we note that the statute addressing in banc7 proceedings in the Court of 7 The term in banc appears not to be defined in the Maryland Code or Constitution. The meaning traditionally bestowed upon that phrase, howev er, indicates tha t it is a reference to the full complement of a given co urt. See, e.g., B LACK S L AW D ICTIONARY 546 (7th ed. 1999) ( With all the judges presen t and participating; in full cou rt ); B ALLENTINE S L AW D ICTIONARY 400, 506 (3d ed. 1969) (defining en banc as on the bench and crossreferencing to full ben ch, whic h is defined as the cou rt with all the qualified judges sitting in a case, particula rly an appellate court ); J OHN B OUVIER, 1 L AW D ICTIONARY AND C ONCISE E NCYCLOPE DIA 318 (191 4); S TEWART R APALJE & R OBERT L. L AWRENCE, 1 D ICTIONARY OF A MERICAN AND E NGLISH L AW 108 (1888 ); Altern ate spell ings inc lude e n banc , in ba nk, and in ban co. B LACK S, supra at 546. Th e drafters of the Marylan d Constitu tion, as well as successive General Assemblies, spelled the phrase in banc, see, e.g., M D. C ONST. art. IV, § 22, which appears to be a corruption of the French en banc and the Latin in banc o. P AUL V. N IEMEYER & L INDA M. S CHUETT, M ARYLAND R ULES C OMMENTARY 480 (3d ed. 2003)); see generally John J. C onnoll y, Comm ent, Maryland s Right of In Banc Review, 51 M D. L. R EV. 434, 43 4 n.3 (1992) (discussing the local peculiarity of the in banc spelling). Notably, the federal statute governing in banc pro cedure sh ares Ma ryland s spelling of in banc. 28 U.S.C . § 46 (2000). In banc proceedings in common law England, whence our practice evolved, were of a different species than their current form in the United States. Historically, the Curia R egis, the highest judicial body in the land o n which the mona rch himse lf sat, entertaine d only the (contin ued...) 5 7 (...continued) most pressing matters brought by those in the highest echelons of society. Ralph V . Turner, The Origins of Comm on Pleas and K ing s Bench, 21 A M. J. L EGAL H IST. 238, 239 (1977). Over time, the Curia R egis steadily was divided into three specialized, superior common law courts, including the Court of Commo n Pleas, or Bancus, which heard civil matters between private subjec ts at We stminste r. W ILLIAM B LACKSTONE, 4 C OMMENTARIES *39-40. Before the Court of Common Pleas was established permanently at Westminster, the full bench traveled to individual counties to hear cases, which were tried before the full bench with juries composed of twelve law-abiding men of that county. J OHN W ILLIAM S MITH, A N E LEMENTARY V IEW OF THE P ROCEEDINGS IN AN A CTION AT L AW 61 (18 48). When the C ourt settled in Westminster, the trial procedure from when the court was itineran t remained in effect, requiring jurors, witnesses, and parties to sojourn from the county from which the action arose. Parliament solved this inconvenience by providing that certain justices who traveled to localities trying actions in land, or assizes, may be substituted for the full Court in banc a t Westm inster to d ecide o ther, un comp licated c ivil matte rs. Id.; W ILLIAM F ORSYTH, H ISTORY OF T RIAL BY JURY 139 (2d e d. 1875). T his was accomplished by what later became known as the Statute of Nisi Priu s, which o rdered the s heriff of a county to bring jurors to the Court at Westminster on a cer tain d ay nisi prius (unless before) that day the justices of assize arriv ed in the c ounty, at which point the justices of assize would hear the matter and obviate the need for all concerned to travel to W estminster. S MITH, supra at 61; F ORSYTH, supra at 140. Typically, a judge sitting nisi prius would not advance beyond the verdict stage and would reserve matters of legal error such as the improper admission or exclusion of evidence, incorrect jury instructions, and misconduct on the part of a juror or counsel, to be resolved by the full Court of Com mon Ple as sitting in banc a t Westm inster. A LISON R EPPY, INTRODUCTION TO C IVIL P ROCEDURE 10 (1954 ); A RTHUR E NGELMANN, A H ISTORY OF C ONTINENTAL C IVIL P ROCEDURE 67-68 (1927). A lthough this system reverted ultimately to the earlie r proce dure, S MITH, supra at 62; F ORSYTH, supra at 140, it nonetheless remains the origin of the surviving distinction be tween a s ingle judge sitting nisi prius to determine factual issues before a jury and the full membership of the Court sitting in banc to determine solely legal questions. This practice of mediacy, which severed the fact-finding and law-applying stages of deciding cases, R EPPY, supra at 45-46; E NGELMANN, supra at 67-68, is not reflected in modern Ame rican ap pellate p ractice. Indeed, our adaptation of the in ban c procedure is more akin to the later English practice under the Judicature Acts, resorting to an in banc sitting of a given cou rt as an appe llate body to review both the findings of fact and conclusions of law reached by one co urt in a sin gle sitting . E NGELMANN, supra at 68. Neverth eless, the principle of in banc sittings being utilized to review the legal accuracy and propriety of a (contin ued...) 6 Special Appeals is unadorned with decisional law interpreting its meaning regarding the question of appellate procedure before us. Section 1-403(c) of the Courts and Judicial Proceedings Article of the Maryland Code (1974, 2006 Repl. V ol.) (here inafter Cts. & Jud. Proc. ) is the primary authority governing the intermed iate appellate court s procedure for hearing and decid ing cases in banc. Th us, our ana lysis of the statute w ill begin, when it begins, with its plain language. Initially, however, a review of the Court of Special App eals s ge nesis and evolutio n see ms in orde r as c onte xt fo r our inqu iry. Creation of the Court of Special Appeals was authorized by a constitutional amendment approved by the G eneral Assemb ly on 23 March 1966 and ratified by the electorate on 8 November 1966 as Article IV, § 14A of the Maryland Constitution, which bestowed on the Legislature the power to create su ch interme diate courts o f appeal, as may be necessary by statute and prescribe their jurisdiction and powers. Chapter 10, § 1 of the Acts of 1966. Pursuant to that constitutiona l amendm ent, the Ge neral Asse mbly created, by statute, the Court of Special Appeals as the second ever8 intermediate appellate co urt in Maryland. Chapter 11, § 1 of the Acts of 1966 (codified at Md. Code (1957, 1966 Repl. 7 (...continued) decision of a smaller panel of the same court remains intact in modern American, and Maryland, jurisprudence. 8 During the Revolutionary War period, the newly-declared independent State of Maryland provided in its Constitution for an intermediate appellate court named the General Court. M D. C ONST. of 1776, art. LVI. The court was bifurcated into two branches: one each for the eastern and wester n shore s of the Chesa peake Bay. The General Court was abolished in 1806, leaving the Court of Appeals as the State s only appellate court until the Court of Special Appeals was formed 160 years later. Chapter 55 of the Acts of 1804. 7 Vol.), Art. 26, § 130 and recodified at Cts. & Ju d. Proc. A rticle, § 1-401 ). At the time o f its nativ ity, the intermediate appellate cou rt s jurisdiction was limited to criminal matters involving sentences other than death.9 Md. Code (1957, 1966 Repl. Vol.), Art. 26, § 130. The court was composed of only five members, hearing and deciding cases as a full court at that time. Id. Four years later, however, the General Assembly expanded the Court of Special Appeals s jurisdiction to include c ertain civil matters, con comitantly incre asing its size to nine me mbers he aring cases in panels of no less than three judges. Chapter 99, § 1 of the Acts of 1970. Along with the expansion, the Legislature empowered the court to hear and decide cases in banc by a ma jority vote o f the jud ges of the cou rt. Id. Within the ensuing seven years, the size of the in termediate a ppellate court was expand ed on three more occasions: to 10 judges in 1973,10 12 judges in 1974,11 and to the now familiar number of 13 judges in 1977.12 Tod ay, the Court of Special A ppeals co nsists of 13 judges and, with few exceptions, has exclusive initial appellate jurisdiction over any reviewable judgment, decree, order or other action of a circuit court, and an o rphans court. Cts. & Jud. Proc., §§ 1-402(a), 12- 9 The original purpose for the creation of the Court of Special Appeals was to relieve [the Court of Appeals] of the substantial increase of criminal appeals which had inundated the Court and yet provide at least one appeal as of right . . . . Walston v. Sun Cab Co., 267 Md. 559, 565, 298 A.2d 391, 395 (1973). Our gratitude endures to this time. 10 Chapter 2 , § 1 of the A cts of 197 3, 1st Spec. Sess. 11 Chapter 706 of the Acts of 1974 12 Chapter 252 of the Acts of 1977. 8 308. In the course of ordinary procedure, the court hears and decides cases in panels of no less than three judges.13 Cts. & Jud. Pro c., § 1-40 3(b). A hearing or rehearing before the court in banc may be ordered in any case by a majority of the incumbent judges of the court and [t]he concurrence of a majority of the incumbent judges of the entire court is nec essary for decision of a case he ard or reheard by the court in ban c. Cts. & Jud. Proc., § 1-4 03(c). In the present case, we must decide whether the statutory reference to incumbent judges proscribes the participation of retired judges in hearing and deciding cases argued in banc. We hold that it does. It is well-settled that the cardinal rule of statutory interpretation is to ascertain and effectuate the intent of the legislature, Mayor & Town Council of Oakland v. Mayor & Town Counc il of Mountain Lake Park, 392 Md. 301, 316, 896 A.2d 1036, 10 45 (2006 ); Melton v. State, 379 Md. 471, 476, 842 A.2d 743, 746 (2004) (quoting Holbrook v. State, 364 Md. 354, 364, 772 A.2d 1240, 1245-46 (2001)), which is accomplished by first looking to the language of the statute, g iving it its n atural an d ordin ary mean ing. Dep t of Assessments & Taxation v. Md.-Nat l Capital Park & Planning Comm n, 348 Md. 2, 13, 702 A.2d 690, 696 (1997); see Chow v. State, 393 Md. 431, 443, 903 A.2d 388, 39 5 (2006) ( Statutory 13 The statute governing the hearing of cases in three-judge pa nels was a mended in 1983 to remove the requirem ent that the Court of Special Appeals decide cases by a panel of three judges. Chapter 6 of the Acts of 1983. This amendment allows the court the flexibility to hear cases in three-judge p anels and still render a two judge majority decision in the event that one member of the panel is unable to participate in the decision-making phase of the case. 9 construction begins with the plain language of the statute, and ordinary, popular understanding of the English language dictates interpretation of its terminology. ) (citing Deville v. State, 383 Md. 217, 223, 858 A .2d 484 , 487 (2 004)). Further, the language of a statute must be viewed as a whole, with reference to the surrounding provisions of the statute. Bd. of Physician Quality Assurance v. Mullan, 381 Md. 157, 168-69, 848 A.2d 642, 649 (2004); Md. Green Party v. Bd. of Elections, 377 Md. 127, 178-79, 832 A.2d 214, 244 (2003); Bd. of Co unty Com m rs v. Be ll Atl.-M d., Inc., 346 Md. 160, 178, 695 A.2d 171, 180 (1997). This harmonizing process also must be observed with respect to an overarching statutory scheme implicating multiple statutes. Mayor & Town Counc il of Oakland, 392 Md. at 316-17, 896 A.2d at 1045; Mid-Atl. Power Supply Ass n v. Pub. Serv. Comm n, 361 Md. 196, 204, 760 A .2d 1087, 1091 (2 000). We think it evident that, in the context of the statute discussing the conduct of proceedings in the Cou rt of Specia l Appeals , a reference to the incumbent judges of the court embrace s only those judg es appoin ted by the Go vernor, sub ject to a plebiscite election to retain a seat on the court for a ten year term.14 This conclusion is supp orted by the 14 Judges of the Court of Special Appea ls, like those of the Court o f Appe als, initially attain that off ice, upon a vacancy on the court, by appointment of the Governor and the advice and co nsent o f the Se nate. M D. C ONST. art. IV, § 5A(b). An appointed judge is then submitted to the electorate for rejection or approval by the registered voters of the geographical area prescribed by law at the next general election following the expiration of one year from the d ate of the o ccurren ce of th e vacancy wh ich he w as appo inted to f ill . . . . Id. § 5A( d). An appellate judge remains subject to such retention elections every ten years. Id. § 5A(d), (e). 10 common conception of the term incumbent, which ordinarily means one who holds an active and ongoing office of public trust. Thus, with reference to Cts. & Jud. Proc., § 1403(c), the 13 judges so ap pointed constitute the Cou rt of Specia l Appeals are its incumbent judges. T his is in contradistinction to specially assigned judges, whether retired or active members of other cou rts, who may sit with three-judge panels of the court only by special assignme nt. 15 The critical modifier incumbent is conspicuous by its absence in the subsection discussing the court when sitting as standard three-judge panels. Cts. & Jud. Proc., § 1-403(b). There exists in that subsection no requirement that a three-judge panel decision be reached only by a majority of incumbent judges of the court, thus permitting specially assigned judges to partak e in the hearing and de cision of cases cond ucted before such a panel. Indeed, such a requirement, if read into the statute, would frustrate the purpose and utility of the special assignment tool to provide substitutes for absent incumbent judges or alleviate an accumulation of cases in the discharge of the court s everyday caseload. As 15 Former judges with the requisite experience and qualifications who consent to serve on temporary assignment by the Chief Judge of the Court of Appeals first must be approved by the administrative judge of the circuit in which the former judge is to be assigned and then approved by a majority of the judges of the Court of Appeals. Md. Code (1974, 2006 R epl. Vol.), Cts. & Jud. Proc. Article, § 1-302(b) (hereinafter Cts. & Jud. Proc. ). Having secured the requisite approvals, a form er judge then may be recalled and assigned to a particular court, or courts, and cases as needed. Although not implicated in this case, the Maryland Constitution also authorizes currently sitting, incumbent judges to be assig ned temp orar ily. The Chief Ju dge of the Court of Appea ls may, in case o f a vacan cy, or of the illness, disqualification or other absence of a judge or for the purpose of relieving an accumulation of business in any co urt, assign an y judge exce pt a judge o f the Orp hans Co urt to sit temporarily in any court except an Orphans Court. MD. C ONST. art. IV, § 18(b )(2); see Md. Rule 16-103. 11 will be disc ussed, infra, however, the participation of specially assigned judges in the in banc process is incompa tible with the policy underlying in banc proceedings, which are the excep tion to th e court s ordina ry metho d for th e consi deration and de cision o f cases . While the unambiguous and clear language of the statute convince s us of the p ropriety of our conclusion, we are not precluded from consulting extrinsic sources, such as legislative histo ry, to confirm the accuracy of our divinati on of le gislative intent. Stanley v. State, 390 Md. 175, 185, 887 A.2d 1078, 1084 (2005) (citing Design Kitchen & Baths v. Lagos, 388 Md. 718, 730, 882 A.2d 81 7, 824 (20 05); State v. Glass, 386 Md. 401, 411, 872 A.2d 729, 735 (2005); and Mayor & City Cou ncil of Baltimore v. Chase, 360 Md. 121, 128, 756 A.2d 987, 991 (2000)); Chesap eake Am usemen ts, Inc. v. Riddle , 363 Md. 16, 29, 766 A.2d 1036, 1042-43 (2001); Morris v. Prince George s County, 319 Md. 597, 604, 573 A.2d 1346, 1349 (1990); Coleman v. State, 281 Md. 538, 546, 380 A.2d 49, 54 (1977). Although acknowledging the usual paucity of archival legislative history relating to most statutes enacted in Maryland before the mid-1970s, and particularly so here with the 1970 law expanding the Court o f Special A ppeals and empow ering it to sit in banc, a subsequent Code revision in 1973 yields a legislative artifact that sheds light on the meaning of § 1-403(c). Specifically, we refer to a report of the Governor s Commission to Revise the Annotated Code ( th e Comm ission ) add ressed to the General Assembly on the matter of the revision of the Courts and Judicial Proceedings Article. This report, although discussing largely the non-substantive changes to the Article, noted certain substantive changes, 12 including a revision of some key language regarding the in banc procedure of the Court of Special Appeals effected in the predecessor statute to § 1-403: In Sec. 1-403(c), a clarification is attempted with respect to in banc hearings. Art. 26, § 130 provides that the majo rity of the entire court is necessary for a decision in such a case. It is not clear whether this means a majority of the full number of authorized judges or the judges a ctually in the office where [sic] the hearing is h eld. The commission has inserted the latter interpretation in § 1-403(c) as a matter of practical administrative convenience. It provides that a hearing or rehearing before the court in banc may be ordered in any case by a majority of the incumb ent judges o f the court. Six judges of the court constitute a quorum of the court in banc and the concurrence of the majority of the incumbent judges of the entire court is necessary for decision of a case heard or reheard by the court in banc. G OVERNOR S C OMM N TO R EVISE THE A NNOTATED C ODE, A NNOTATED C ODE C OMM N, C OMMISSION R EPORT N O. 3F TO THE G ENERAL A SSEMBLY OF M ARYLAND 15 (1973) (emphas is added). The notation by the Commission explicitly states that the referen ce to incumbent judges in § 1-403(c) is to those judges actually in [ ] office [when] the hearing is held. This understanding of the incumbent judges of the Court of Special Appeals, later folded into a Revisor s No te on § 1-403(c), 16 necessarily excludes s pecially assigned judges 16 The Revisor s Note indicated that, as a result of the revision s clarification tha t a majority of the Co urt of Spe cial Appe als sitting in banc may be had from the s eats actually filled, rather than the full number of authorized judges, Cts. & Jud. Proc., § 1-403(c) provid[es] for readier a ction by the co urt in banc if there are vacancies. We have viewed Revisor s Notes as helpful, though no t infallible, aids to statutory construction by revealing possible legislativ e intent. Compare Comptroller of Treasury v. Blanton, 390 Md. 528, 538, 890 A.2d 279, 285 (2006) (indicating that legislative intent may be derived from Revisors Notes to infor m statut ory cons truction ), with Stanley v. State, 390 Md. 175, 186, 887 A.2d (contin ued...) 13 because those judges are not officeholders of the court in the strict sense. As explained supra, one initially achieves office as a judge of the Court of Special Appea ls only by appointment of the Governor and the advice and consen t of the S enate. See supra, at 11 n.14. When judges who fulfill these qualifications, such as the Hon. Charles E. Moylan, Jr. and Hon. Raymond J. Thieme, Jr., retire, th ey vacate office . M D. C ONST. art. IV, § 5A(a) . The Maryland Constitution, for better or for worse, also prohibits a judge from holding office as an incumbent after the attainm ent of h is or her 7 0th birth day. M D. C ONST. art. IV, § 18B(b), (c) ( [I]n no event shall any judge continue in office after his seventieth birthday. ). Without betraying the ages of the retired judges involved here, it suffice s to state that they are barred by Article IV, §§ 5A(a) and 18B(b) from holding judicial off ice. This is, of course , no comm entary on the in herent w isdom or f aculties of o ur retired breth ren to serve the public. Indeed, the public and the Judiciary are indebted to those retired judges who render continuing service in the discharge of the busines s of the cou rts, consona nt with the devotion and careful attention of the incumbent judges in active service. The abundance of experience brought to bear by retired judges is an invaluable commodity in the administration of justice in this State and is not taken for granted. 16 We are bound, (...continued) 1078, 1084 (2005) (stating that a Revisor s Note cannot override the plain language of a statute). This newly-gained readiness o bviates the n eed to spec ially assign judge s to fill vacant seats for the court to hear and decide cases in banc. Before the revision, if seven judges of the 13 member court were absent, the court could not have acted in banc for lack of a majority unless judges were specially assigned to fill temporarily the vacant seats, the post-revision interpretation a llows a fo ur-mem ber majority of the 6 filled se ats to decide a case in banc. 14 nonetheless, to interpret and effectuate the statute as we are given the light to see what was intended by the Le gislature . See Hom es Oil Co., Inc. v. Dep t of Env t, 135 Md. App. 442, 467, 762 A.2d 1012, 1025 (2000) (Thieme, J.); Wright v. Sue & Charles, Inc., 131 Md. App. 466, 468-69, 749 A.2d 241, 241-42 (2000) (M oylan, J.); Warner v. Lerner, 115 Md. App. 428, 441, 693 A.2d 394, 400 (1997) (Thieme, J.) ( We are duty bound to interpret an unambiguous law as it is written-even if the result is not what our conscienc e tells us it should be. ); People s C ounsel v. B eachwo od I Ltd. P ship, 107 Md. App. 627, 647-48, 670 A.2d 484, 494 (1995) (Moylan, J.). The De partment in the present c ase, althoug h challeng ing the me rits of the ma jority opinions of the in banc Court of Special Appeals, nonetheless defends the composition of the in banc court in this matter. It asserts that the investment of all the power and authority of a judge of the court on which a spe ciall y assigned judge may sit accords that judge the corresponding office, even if for a tem porary period . Cts. & Ju d. Proc., § 1-3 02(e); cf. M D. C ONST. art. IV, § 18(b)(5). T his view is incorrect. The language relied on by the Department merely conveys impermanently the power and authority of the office, not the actual office itself. No appellate judge may attain of fice o ther than by appo intmen t. M D. C ONST. art. IV, § 5A(b) ( Upon the occurrence of a vacanc y the Gover nor shall appoint, by and with the advice and con sent of the Sen ate, a pe rson du ly qualifie d to fill sa id offic e . . . . ) (empha sis added); see Cts. & Jud. Proc., § 1-402(b) (requ iring that judges of the Co urt of Special Appe als be s elected , appointed, [and] retained in accord with Article IV of the 15 Maryland Constitution) (emphasis added). The constitutional provision and statute governing the sitting of re tired judges, a s well as the constitutional provision addressing the sitting of ju dges fro m other c ourts, bo th sp eak i n terms o f a te mpo rary assignment rather than a temp orar y appointment. M D. C ONST. art. IV, § 3A(a)(1) (permitting any former judge to be assigned by the Chief Judge of the Court o f Appe als, upon the approva l of the ma jority of the cou rt, to sit tem porarily . . . . ) (emphasis added); C ts. & Jud. Proc., § 1-302(b ) (same); M D. C ONST. art. IV, § 18(b)(2) (permitting the Ch ief Judge o f the Cou rt of App eals to assign any judge . . . to sit temporarily . . . . ) (emphasis added). More importantly, if the Department s interpretation were to prevail, the special assignment of judges routinely would expand the size of the Court of Special Appeals beyond its statutorily-prescribed maximum complement of 13 judges, when no vacancies exist. This is because a bsent judg es do not f orfeit their off ice, even tem porarily. Judges generally abdicate their office only in certain, limited circumstances such as: death, resignation, removal, retirement, dis qualification by reason of age or c hange in d omicile inco nsistent with legal requirements, or rejection by the voters. M D. C ONST. art. IV, § 5A(a). 17 Thus, under the Department s theory, when a judge is assigned specially to sit with the full court in banc, the court technically would consist of 14 judges, in contravention of Cts. & Jud. Proc, § 1402(a). 17 The pragmatic infeasibility of the Department s theory is exhibited further by the fact that if a judge who was absent or was compelled to recuse him or herself were deprived temporarily of office as a result, then he o r she would be req uired to endure the entire appointment process anew to regain his or her judicial office. M D. C ONST. art. IV, § 5A(a). 16 Our conclusion that specia lly assigned judges are not incumbents of the Court of Special App eals does not end our inqu iry. We consider whether Cts. & Jud. Proc., § 1-403(c) explicitly disqualifies non-incumbents from participation in the hearing and decision of cases considered in banc. Th e statute iterates th at a majority of incu mbent jud ges are nec essary to order the hearing of and render a de cision in a ca se to be con sidered in banc. The language does not make allowance for other persons to participate in banc and, in our view, need not list exhaustively each person or class of persons not eligible to participate. See Moody v. Albema rle Paper Co., 417 U.S. 622, 624, 626, 94 S. Ct. 2513, 2515, 2516, 41 L. Ed. 2d 358 (1974) (per curiam) (holding that the federal statute p ermitting the d ecision to ord er an in banc hearing be made by a majority of the circuit judges of the circuit who are in active service, excludes retired judges from participation). It makes little sense to permit the participation of judges in the hearing and decision of a case for which, according to the statute, their vote m ay not count. T he policy rationa le for holding in banc proceedings is to empower incumbent judges to control the jurisprudence of the court on which they sit. Alan M. W ilner & Joseph F. Mu rphy, Jr., Inner Workings of the Court of S pecial Appeals of Maryland, in A PPELLATE P RACTICE FOR THE M ARYLAND L AWYER 50-51 (Paul Mark Sandler & Andrew D. Levy, eds., 2d ed. 2001) ( In the very infrequent situation where a majority of the full court is unwilling to approve an opinion to which a majority of the panel is committed, the chief judge will direct that the case be reargued en banc, which mean s befo re at leas t seven judges . Again, the reason for this is to 17 prevent a minority of the court fro m adop ting preced ent for the m ajority. ) (emphasis added); see United States v. Am.-Foreign S.S. Corp., 363 U.S. 685, 689, 80 S. Ct. 1336, 1339, 4 L. Ed. 2d 1491 (1960) ( [En banc courts] are convened only when extraordinary circumstances exist that call for authoritative consideration and decision by those charged with the administration and development of the law of the circuit. ); Am.-Foreign S.S. Corp., 363 U.S. at 689-90, 80 S. Ct. at 1339 ( T he principa l utility of determinations by the courts of appeals in banc is to enable the court to maintain its integrity as an institution by making it possible for a majority of its judges alw ays to control an d thereby to sec ure unifor mity and continuity in its decisions . . . . ) (quoting Albert Branson Maris, Hearing and Rehearing Cases in Banc, 14 F.R.D. 91, 96 (1954)); Pamela A nn Rymer, The Lim ited En B anc: Ha lf Full, or Half Empty?, 48 A RIZ. L. R EV. 317, 320 (2006) ( The full bench can always change the outcome or the rationale of a panel opinion that a majority of the full court regards as out of line. ); M artha D ragich P earson , Citation of Unpublished Opinions as Precedent, 55 H ASTINGS L.J. 1 235, 127 2 (20 04) ( Th e en b anc p owe r is th e only statutory mechanism allowing the full court to control the law of the circuit. ); Note, The Politics of En Banc Review, 102 H ARV. L. R EV. 864, 876 n.61 (1989); R OBERT J. M ARTINEAU, M ODERN A PPELLATE P RACTICE § 15.3, at 25 0 (1983) (s tating, with respect to the federal circu it courts of appeal, that [i]n banc re hearing giv es the active c ircuit judges th e ability to control the law of the circuit ); see also R OBERT L. S TERN, A PPELLATE P RACTICE IN THE U NITED S TATES § 16.6, at 460 (2d ed. 1989) ( Perhaps the most likely to be successful . . . is a request [for 18 rehearing in banc] when there has been a dissent, and there is good rea son to believ e that a majority of the full b ench w ill agree with it. ) . Inviting spec ially assigned judges, who are not incumbe nt memb ers of the C ourt of Sp ecial App eals, to participa te in cases hea rd in banc runs counter to the notion that in banc hearings are intended to permit the incumbent membe rship of the cou rt to control its preceden t.18 Again, this does not speak to the abilities of those judges specially assigned to sit on normal three-judge panels of the court, but merely reflects the widely-held policy undergirding the practice of in banc review.19 18 It is noteworthy in the present case that, subtracting Judge T hieme from the c ourt majority and Judg e Moylan f rom the dis senters wo uld yield, in all likeliho od, no cha nge in the result as there would re main seve n incumb ents in supp ort of affirm ance of th e Circuit Court s judgment and six inclined to dissent. W hether this su pposition w ill prove accu rate on remand remains to be seen. We cannot resolve that question here by such judicial checkbook balancing because the dynamics of conferencing and deciding a case is sometimes a delicate process influenced by the presence or absence of certain judges. 19 Our rationale for the exclusion of retired judges from in banc proceedings in the Court of Special Appeals holds no implication for the conduct of the Court of Appeals. There is no statutory directive controlling the participation of retired judges in the hearing and decision of cases before the Court of Appeals, which traditionally sits in ban c on all of its cases, as there is for the intermediate appellate tribunal. Rather, Article IV, § 14 of the Maryland Constitution requires only that the Court of Appeals have a quorum of five judges and states that, at its direction, the Court may sit an additional judge or judges . . . for any case. In contrast to the req uireme nt impo sed by C ts. & Ju d. Proc ., § 1-403(c) that the Cou rt of Special A ppeals dec ide cases he ard in banc by a m ajority of incumbent judges, the Court of Appeals need only have [t]he co ncurrence of a m ajority of those sitting to render a decision. M D. C ONST. art. IV, § 14. The mandate requiring cases to be decided by incumbent judges is absent from the language setting forth the procedures governing the Court of Appeals. As we noted prev iously, retired judges may be assigned spec ially to sit on any court of this State, including the Court o f App eals. M D. C ONST. art. IV, § 3A(a)(1); Cts. & Jud. Proc., § 1-302(b). Thus, the participation of now-retired Judg e Alan M . Wilner in this opinion does not raise the same concerns evoked by the in banc procedure of the Court of (contin ued...) 19 Although the rationale for implemen ting in banc review is in ac cord with that of the federal system, the deta ils of in banc procedu re in the Co urt of Special Appeals differs significantly from th e fede ral appe llate pro cedure . Maryland law approaches the participation of retired judges in banc in a manner altogether different from the federal system. Federal law permits senior judges20 to participate in banc in cases for which they sat on an appellate panel. 28 U .S.C. § 46(c ) (2000); Igartua de la Rosa v. United States, 407 F.3d 30, 31-32 (1st Cir. 200 5); Baker v. Pataki, 85 F.3d 919, 920 -21 & n.1 (2d C ir. 1996). This is because the statute governing in banc proceedings in federal circuit courts of appeal specifically provides for the participation of senior judges. 28 U.S .C. § 46(c) ( A cou rt in banc shall consist of all circuit judges in regular active service, . . . except that any senior circuit judge of the circuit shall be eligible (1) to participate, at his election and upon designation and assignment . . . as a member of an in banc court reviewing a decision of a panel of which such judge was a member . . . . ). Contributing to this practice, n o doubt, is the fact that a federal judge electing senior status remains an Article III judge of his or her court, albeit at a reduced workload usually. Section 1-403(c) of the Courts and Judicial Proceedings Article does not contain such a specific authorization. We find it instructive that, before the federal statute contained the language permitting 19 (...continued) Special Appeals we review here. 20 Senior judges are retired from regular active service but retain their judicial office, 28 U.S.C. § 371(b)(1) (2000), and may continue to perform such judicial duties as [they are] willing and able to und ertake, when design ated and assigned . . . . 28 U .S.C. § 294(b). 20 senior judges to sit in banc, the U.S. Supreme Court construed the statute to forbid the participation of sen ior judg es in ba nc. Am.-Foreign S.S. Corp., 363 U.S . at 689-90, 8 0 S. Ct. at 1339. More over, the legislative history of the federal statute governing in banc hearings emphasizes the controversial nature of the inclusion of senior judges in such proceedings. From the inception of the statute, the law permitted only active circuit judges to sit in banc. 62 Stat. 871 (1948) (codified as amended at 28 U.S.C. § 46(c) (2000)). An amendment was passed in 1963 p ermitting sen ior judges to sit in banc on cases for w hich they sat orig inally on a panel o f the court. Pub. L. No. 88-176, § 1(b), 77 Stat. 331. In 1978, however, Congress again amended the statute to remove the authorization granted 15 years prior for senior judges to participate in matters heard in banc when the judge participated in the case as part of a panel of the court. Pub. L. No. 95-486, § 5(a), 92 Stat. 1633. Four years later, Congress restored the a bility of senior jud ges to sit in banc. Pub. L. No. 97-164, tit. II, § 205, 96 Stat. 53. This mercurial history relating to the propriety of allowing the participation of senior judges in cases heard in banc highlights the wisdom expressed by the U.S. Supreme Court in Am.-Foreign S.S. Corp., i.e., leave such d etermination s to the legislature to resolve. 363 U.S. at 690-91, 80 S. Ct. at 1339-40. In the a bsen ce of a clear directi on to the c ontrary from the General Assembly, we conclude that the language of Cts. & Jud. Proc. § 1-403(c) p rohibits spec ially assigned judges from participating in the decision to order that a case b e heard in b anc, as we ll as from the actual hearing and decision of a case considered in banc. Accordingly, as retired Judges 21 Moylan and Thieme were assigned specially to the instant case and participated in the decision in banc, we must vacate the judgment of the Court of Special Appeals as having been issued by an improperly constituted in banc court. See Washabaugh v. Washabaugh, 285 Md. 393, 412 n.15, 404 A.2d 1027, 1037-38 n.15 (1979). This result speaks nothing of the merits of the other issue relating to the Department s finding of indicated child abuse. We remand the case to our appellate colleagues for further proceedin gs not inco nsistent with this opinion. JUDGMENT OF THE COURT OF SPECIAL APPEALS VACATED; CASE REMANDED TO THE COURT OF SPECIAL APPEALS FOR FURTHER PROCEEDINGS N OT INCONSISTENT WITH THIS OPIN ION; COSTS IN THIS COURT TO BE DIVIDED EQUALLY BY THE PARTIES. 22

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