Chairman of Bd. of Trustees of Emp. Retirement System v. Waldron

• Decision Date: 10 May 1979
• Docket Number: No. 40,40
• Citation: 401 A.2d 172,285 Md. 175
• Parties: CHAIRMAN OF the BOARD OF TRUSTEES OF the EMPLOYEES' RETIREMENT SYSTEM of the State of Maryland et al. v. Richard V. WALDRON.
• Court: Maryland Court of Appeals

Page 175

285 Md. 175

401 A.2d 172

CHAIRMAN OF the BOARD OF TRUSTEES OF the EMPLOYEES' RETIREMENT SYSTEM of the State of Maryland et al. v. Richard V. WALDRON.

No. 40.

Court of Appeals of Maryland.

May 10, 1979.

Carol S. Sugar and Robert A. Zarnoch, Asst. Attys. Gen., Baltimore (argued) (Francis B. Burch, Atty. Gen., Baltimore, on the brief), for appellants.

Richard V. Waldron (argued) (David A. McNamee, Thomas H. Price, III and Beatty & McNamee, Hyattsville, on the brief) Thomas H. Price, III and Richard V. Waldron, Hyattesville (reargued), for appellee.

Argued Nov. 28, 1978 before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, ORTH and COLE, JJ.

Reargued March 7, 1979 before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, ORTH, COLE and DAVIDSON, JJ.

DIGGES, Judge.

In August 1977, upon his retirement as an active member of the Maryland judiciary following ten years of service as a judge on the District Court of Maryland and on one of its predecessors, the People's Court of Prince George's County, See Md.Const., Art. IV, § 41-I(a), respondent Richard V. Waldron notified the Employees' Retirement System of the State of Maryland that he wished to receive the pension benefits to which he was statutorily entitled. See Md.Code (1957, 1978 Repl.Vol.), Art. 73B, § 57(h). At the same time, being a member of the Maryland and District of Columbia Bars and desiring to resume the practice of law but wanting to insure that such action would in no way jeopardize the continued receipt of his pension, Judge Waldron instituted this declaratory judgment action in the Circuit Court for Calvert County against the Employees' Retirement System and several of its officials. ¹ By this suit respondent sought a declaration that section 56(c) of Article 73B of the Maryland Code was unconstitutional or, in the alternative, that he was entitled to other specified relief. ² Section 56(c) provides:

A judge who retires and accepts the pension provided by this subtitle may not, thereafter, engage in the practice of law for compensation; but this prohibition does not apply to a former judge who has attained the age of 70 years and received less than $3,500 per annum in pension as provided by this subtitle, and who has not voluntarily retired. (Md.Code (1957, 1978 Repl.Vol.), Art. 73B, § 56(c) (emphasis supplied). ³)

After a hearing on the matter, the trial court (Bowen, J.) declared section 56(c) to be unconstitutional as violative of the equal protection clause of the fourteenth amendment to the United States Constitution, thus permitting respondent both to receive his pension and practice law in this State. The petitioners now come before this Court pursuant to certiorari and assert, as they did in the circuit court, not only that section 56(c) does not violate any stricture of the federal or Maryland constitutions but also that the trial court here should have dismissed the action as venue was in Baltimore City rather than in Calvert County. ⁴

We find ourselves in agreement with petitioners that this case should be dismissed, although for reasons and with consequences different from those they espouse; however, prior to any discussion of our rationale for reaching such a conclusion, we think it important to note, although none of the parties raise the issue, that while each member of this Court and, indeed, every judge in this State, potentially has at least a remote interest in the outcome of this litigation, which normally might merit recusal, See Md.Const., Art. IV, § 7; ABA Code of Judicial Conduct, Canon 3C(1)(c) (1972), our collateral interests nonetheless do not disqualify any of us from participating in this Court's decision on the merits of this dispute. Nearly four decades ago, faced with an almost identical situation in dealing with the constitutionality of the imposition of a state income tax upon the salary of judges, this Court, while recognizing the delicacy of deciding a case in which the members of the Court had an indirect interest, declared:

Under these circumstances the disqualification of all the judges would destroy the only tribunal in which relief by appeal may be sought. To bar the opportunity for redress by appeal is more prejudicial to sound public policy than the alternative, to permit an appeal to be heard by judges whose disqualification is in their collateral interest in the legal effect of the judgment to be rendered. So, of necessity, the rule as to the disqualification of judges must yield if the right of appeal is to be preserved. "The settled rule of law is that, although a judge had better not, if it can be avoided, take part in the decision of a case in which he has any personal interest, yet he not only may but he must do so if the case cannot be heard otherwise." (Gordy v. Dennis, 176 Md. 106, 109, 5 A.2d 69, 70 (1939) (quoting F. Pollock, First Book of Jurisprudence 235 (1896)).)

This rationale applies with equal force to the present action, both before the trial court and on appeal, and thus requires that we proceed to a determination of the issues it displays.

Dismissal of this action is required, we have concluded, because respondent, in seeking as his primary relief a declaration that section 56(c) is unconstitutional, failed to join any party necessary to litigate this issue, in that none of the petitioners can claim "any interest which would be affected by the declaration." Md.Code (1974), § 3-405(a)(1) of the Courts Article. ⁵ In demonstrating why the petitioners here are not the parties required to adjudicate this question, thereby creating a void as to necessary parties, we begin by examining section 56. Subsection (a) of this provision directs that a retired judge's pension "shall be paid . . . until his death." Id. (1957, 1978 Repl.Vol.), Art. 73B, § 56(a). This is a fully vested grant that subsection (c) in no way purports to restrict, limit, or otherwise control. As we read section 56(c), it is a direct command to a retired judge who accepts a pension that he "may not, thereafter, engage in the practice of law for compensation." Id. § 56(c). Obviously, this mandate only precludes a retired judge who has accepted pension payments from receiving recompense for any law practice he undertakes and does not seek to precondition his obtention of his pension upon compliance with any stricture concerning his receiving remuneration for providing legal services, as, we note, subsection (c)'s predecessor did. Compare id. with id. (1957, 1970 Repl.Vol., 1973 Cum.Supp., 1973 Add.Supp.), Art. 73B, § 55(e) (repealed by 1974 Md.Laws, ch. 483, § 1). ⁶ Thus, unless constitutionally infirm or otherwise unenforceable, section 56(c) plainly prohibits a retired judge who accepts his pension from engaging in the practice of law for compensation but does not, by its terms, give the Employees' Retirement System and its officers the power to enforce that prohibition by invoking any sanction, including termination of pension payments.

It nonetheless is suggested that consistent with the Employees' Retirement System's general responsibility for the administration of the judicial pension plan and the management of its funds, Id. (1957, 1978 Repl.Vol.), Art. 73B, § 57(m), the language of section 56(c) should be interpreted as authorizing the Retirement System to police that enactment's provisions and discontinue pension payments when subsection (c)'s edict against receiving compensation is not heeded. We simply cannot countenance such a construction without engaging in what would be a most egregious example of judicial legislation. To do so, we think, would be to breach those fundamental canons of statutory interpretation that require if there is no ambiguity or obscurity in the words of the statute and its language expresses a definite and sensible meaning, this Court will not look elsewhere to ascertain the intent of the legislature nor go beyond the ordinary and natural import of the language utilized and resort to subtle and forced interpretations, under the guise of construction, to remedy possible omissions or other defects in an enactment. See, e. g., Wheeler v. State, 281 Md. 593, 596, 380 A.2d 1052, 1054 (1977) (citing authorities), Cert. denied, 435 U.S. 997, 98 S.Ct. 1650, 56 L.Ed.2d 86 (1978); Coleman v. State, 281 Md. 538, 546, 380 A.2d 49, 54 (1977) (same); Police Comm'r v. Dowling, 281 Md. 412, 418, 419, 379 A.2d 1007, 1010-11 (1977) (same); Harden v. Mass Transit Adm., 277 Md. 399, 406, 354 A.2d 817, 821 (1976) (same); St. Paul Fire & Mar. v. Ins. Comm'r, 275 Md. 130, 141-42, 339 A.2d 291, 297 (1975) (same). There, of course, remains the possibility that some other legislative provision, either in Article 73B, which pertains to state employees' pensions, or elsewhere, might give petitioners the power to impose or initiate the imposition of sanctions for a violation of subsection (c). After a thorough search, however, we have found none that do so. Thus, petitioners, with no power to administer or enforce subsection (c)'s restriction, had no interest that would be affected by a declaration concerning its constitutionality and, therefore, were not parties whose joinder was necessary in order to properly litigate this action.

Our determination that petitioners are not among those parties that must be joined in order to authorize the issuance of a declaration as to the constitutionality of section 56(c) does not create a vacuum as to the enforcement of this provision's prohibition. Assuming subsection (c)'s validity, a violation of that statute's terms would constitute the "unauthorized practice of law," enforceable in accord with Section 26A of Article 10 of the Code. ⁷ That section declares:

(a) By Attorney General. Upon his own information or upon complaint of any person, including the bar counsel, any judge, or any organized bar association in this State, the Attorney General may maintain an action for injunctive relief in the circuit court of any county or in the equity courts...