Department of Human Resources v. Howard

• Decision Date: 13 March 2007
• Docket Number: No. 53, September Term, 2006.,53, September Term, 2006.
• Citation: 397 Md. 353,918 A.2d 441
• Parties: DEPARTMENT OF HUMAN RESOURCES, Anne Arundel County Department of Social Services v. Sherri HOWARD.
• Court: Court of Special Appeals of Maryland

918 A.2d 441

397 Md. 353

DEPARTMENT OF HUMAN RESOURCES, Anne Arundel County Department of Social Services v. Sherri HOWARD.

No. 53, September Term, 2006.

Court of Appeals of Maryland.

March 13, 2007.

Sandra Barnes, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. on brief), for petitioner.

Neal M. Janey, Jr. (Janey & Dixon, P.C., Catonsville, Ilona McClintick, Baltimore, all on brief), for respondent.

Argued before BELL, C.J., RAKER, WILNER^*, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

HARRELL, J.

This case presents an opportunity 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 colleagues, who supply invaluable legal experience and erudition in support of the mission of the intermediate appellate court, we conclude that such a scenario 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 context for the largely procedural, 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 Arundel County Department of Social Services ("the Department") found Sherri Howard responsible for "indicated child abuse"¹ of her minor son, Alexander. Howard 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 affirming the Department's finding that Howard perpetrated the physical variety of "indicated child abuse" by striking her son in the region of his eye, exposing him to a substantial 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 Department 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 intermediate appellate 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 court and two retired judges who were 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 would, cause injury. Dep't of Human Res. v. Howard, 168 Md.App. 621, 644-45, 897 A.2d 904, 917-18 (2006). Judge Davis penned a concurring opinion, in which four other judges 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 reckless disregard of the possibility of harm. Howard, 168 Md.App. at 652, 897 A.2d at 922.

There were two intertwined camps of dissenting judges. One dissent, authored by Judge Moylan and joined by six incumbent judges, took issue with 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 Md.App. at 663-72, 897 A.2d at 928-33. Judge Moylan also 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 harm by swinging at the child was not required. Howard, 168 Md.App. at 678-79, 897 A.2d at 937. Four of the dissenting incumbent judges, with Judge Deborah Eyler writing, echoed Judge Moylan's sentiments generally, but emphasized, as especially problematic in upsetting the ALJ's decision, the unrestrained and unannounced nature of Howard's discipline. 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 writ, we posed a further question: "What authority does the Court of Special Appeals have to hold an en banc⁶ hearing with fifteen judges?" This additional question of appellate procedure becomes a threshold question because the proper constitution of the intermediate appellate court sitting in banc is a prerequisite for a valid decision for us to review. If no valid judgment was rendered by the Court of Special Appeals, we may not review the judgment of the Circuit Court (and thus the ALJ's decision) because the writ of certiorari was issued 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 ALJ, Spencer v. Md. State Bd. of Pharmacy, 380 Md. 515, 523-24, 846 A.2d 341, 346 (2004); Gigeous v. Eastern Correctional Institution, 363 Md. 481, 495-96, 769 A.2d 912, 921 (2001), we cannot simply 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 constituted in banc court.

II. DISCUSSION

At the outset, we note that the statute addressing in banc⁷ proceedings in the Court of 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. Vol.) (hereinafter "Cts. & Jud. Proc.") is the primary authority governing the intermediate appellate court's procedure for hearing and deciding cases in banc. Thus, our analysis of the statute will begin, when it begins, with its plain language. Initially, however, a review of the Court of Special Appeals's genesis and evolution seems in order as context for our inquiry.

Creation of the Court of Special Appeals was authorized by a constitutional amendment approved by the General Assembly 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 such intermediate courts of appeal, as may be necessary" by statute and prescribe their jurisdiction and powers. Chapter 10, § 1 of the Acts of 1966. Pursuant to that constitutional amendment, the General Assembly created, by statute, the Court of Special Appeals as the second ever⁸ intermediate appellate court in Maryland. Chapter 11, § 1 of the Acts of 1966 (codified at Md.Code (1957, 1966 Repl.Vol.), Art. 26, § 130 and recodified at Cts. & Jud. Proc. Article, § 1-401). At the time of its nativity, the intermediate appellate court'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 certain civil matters, concomitantly increasing its size to nine members hearing 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 majority vote of the judges of the court. Id. Within the ensuing seven years, the size of the intermediate appellate court was expanded 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

Today, the Court of Special Appeals "consists 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 orphans' court." Cts. & Jud. Proc., §§ 1-402(a), 12-308. In the course of ordinary procedure, the court hears and decides cases in panels of no less than three judges.¹³ Cts. & Jud. Proc., § 1-403(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 necessary for decision of a case heard or reheard by the court in banc." Cts. & Jud. Proc., § 1-403(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 Council of Mountain Lake Park, 392 Md. 301, 316, 896 A.2d...