Special Investigation No. 236, In re

• Decision Date: 28 March 1983
• Docket Number: No. 115,115
• Citation: 295 Md. 573,458 A.2d 75
• Parties: In re SPECIAL INVESTIGATION NO. 236.
• Court: Maryland Court of Appeals

Page 573

295 Md. 573

458 A.2d 75

In re SPECIAL INVESTIGATION NO. 236.

No. 115.

Court of Appeals of Maryland.

March 28, 1983.

Stefan D. Cassella, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., and John-Claude Charbonneau, Asst. Atty. Gen., Baltimore, on brief), for appellant.

David R. Addis, Washington, D.C. (Dickstein, Shapiro & Morin, Washington, D.C., on brief), for appellee.

Argued before SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY, COUCH, JJ., and MENCHINE, W. ALBERT, Associate Judge of the Court of the Special Appeals (retired), specially assigned.

SMITH, Judge.

We shall here hold that the accountant-client privilege provided under Maryland Code (1974, 1980 Repl.Vol.) § 9-110, Courts and Judicial Proceedings Article, is not applicable to a subpoena issued by a grand jury.

Pursuant to various authorizations from the Governor of Maryland under Maryland Constitution Art. V, § 3(a)(2), the Attorney General of Maryland for quite some time has been engaged in investigations pertaining to certain health care providers. In fact, he has set up what is known as the Medicaid Fraud Control Unit in his office. As a part of that investigation the Grand Jury of Baltimore City issued a subpoena duces tecum to an accountant to produce certain records. The accountant complied. Upon learning of this subpoena the person to whom the records pertained filed a motion for return of privileged material in the Criminal Court of Baltimore (now the Circuit Court for Baltimore City). This motion was granted. An appeal to the Court of Special Appeals followed. On our own motion we issued a writ of certiorari prior to consideration of the case by the latter court.

I

We first address the issue of appealability. Appeals in Maryland are limited to final orders and certain interlocutory orders. An appellate court is without jurisdiction to entertain an appeal unless the order appealed from is a final order or is one of the class of interlocutory orders specified in Code (1974, 1980 Repl.Vol.) § 12-303, Courts and Judicial Proceedings Article.

Upon the strength of our recent case of In Re: Special Investigation No. 231, 295 Md. 366, 455 A.2d 442 (1983), we conclude that the order here was final. This is because the proceeding consisted only of a motion to return the privileged material. Once that motion was granted there was nothing more to be done in this particular case. It thus settled the rights of the parties and terminated the cause. Cf. Peat & Co. v. Los Angeles Rams, 284 Md. 86, 394 A.2d 801 (1978).

II

The statute pertaining to the accountant-client privilege, § 9-110, Courts and Judicial Proceedings Article, states:

"(a) Privilege.--A certified public accountant, public accountant, or any person employed by him may not disclose the contents of any communication made to him by a person employing him to examine, audit, or report on any book, record, account, or statement nor may he disclose any information derived from the person or material in rendering professional service unless the person employing him or his personal representative or his successor in interest permits it expressly.

"(b) Exception.--This privilege does not affect the criminal laws of the State or the bankruptcy laws."

The Attorney General argues that the exception is applicable to the subpoena issued by the grand jury in this instance.

The principles of statutory construction have been stated many times by this Court. In Police Comm'r v. Dowling, 281 Md. 412, 418-19, 379 A.2d 1007 (1977), we set forth a number of those principles, citing cases for each. The ones applicable to this proceeding include: The cardinal rule of statutory construction is to ascertain and carry out the real legislative intent. In determining that intent the Court considers the language of an enactment in its natural and ordinary signification. A corollary to this rule is that if there is no ambiguity or obscurity in the language of a statute, there is usually no need to look elsewhere to ascertain the intent of the General Assembly. A court may not insert or omit words to make a statute express an intention not evidenced in its original form. The General Assembly is presumed to have had, and acted with respect to, full knowledge and information as to prior and existing law and legislation on the subject of the statute and the policy of the prior law. Absent a clear indication to the contrary, a statute, if reasonably possible, is to be read so that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless, or nugatory. See also Board of Educ., Garrett Co. v. Lendo, 295 Md. 55, 62-63, 453 A.2d 1185 (1982), and Hurst v. V & M of Virginia, 293 Md. 575, 578-79, 446 A.2d 55 (1982).

The statute here is ambiguous. Hence, we turn for a possible explanation of its meaning to its form as it existed prior to recodification in 1973. Recodification of statutes is presumed to be for the purpose of clarity rather than change of meaning. Thus, even a change in the phraseology of a statute by a codification will not ordinarily modify the law unless the change is so material that the intention of the General Assembly to modify the law appears unmistakably from the language of the Code. See the discussion in Hoffman v. Key Fed. Sav. & Loan, 286 Md. 28, 37, 416 A.2d 1265 (1979), citing two of our prior cases to this effect.

The original accountant-client privilege was enacted by Ch. 585 of the Acts of 1924. Immediately prior to recodification into the Courts and Judicial Proceedings Article in 1973, Code (1957, 1969 Repl.Vol., 1972 Cum.Supp.) Art. 75A, § 21 read as follows:

"Except by express permission of the person employing him, or of the heirs, personal representatives or successors of such person, a certified public accountant or public accountant or any person employed by him shall not be required to, and shall not voluntarily, disclose or divulge the contents of any communication made to him by any person employing him to examine, audit or report on any books, records, accounts or statements nor any information derived therefrom in rendering professional service; provided that nothing in this section shall be taken or construed as modifying, changing or affecting the criminal laws of this State or the bankruptcy laws."

The exception provision there appearing uses exactly the same language found in Code (1924) Art. 75A, § 11 at the time of the original enactment. Accordingly, we conclude that it was the intent of the General Assembly that this privilege was not to modify, affect or change the criminal laws of this State. In our view, this language would include a formal criminal proceeding. Thus, we turn to an examination of whether a grand jury proceeding is essentially criminal.

The key Maryland case is In re Report of Grand Jury, 152 Md. 616, 137 A. 370 (1927). There Judge W. Mitchell Digges set forth for the Court a concise summary of the development of the grand jury in England, concluding:

"From [the forty-second year of Edward III] to the present, the grand jury has been continued and preserved as an institution necessary for the preservation of the peace, good order, and dignity of the state in bringing to trial those guilty of violations of law, and in protecting people from being put on trial upon frivolous, unfounded, or false accusations." 152 Md. at 621, 137 A. 370.

At issue in that case was the report of a special committee of the Grand Jury of Baltimore City which was critical of the supervising engineer of a high school construction project and the Public Improvement Commission of Baltimore City, among others. Those who were criticized sought to have the report stricken, claiming:

" '(a ) The grand jury has no authority or power to return such presentments; (b ) the grand jury had no power to authorize a special committee to return such presentments; (c ) the charges (or presentments) contained in said report are not such upon which any indictment can be drawn; (d ) the report violates your petitioners' rights under the Bill of Rights of the Constitution of the United States and the Declaration of Rights of the Constitution of Maryland, in that it undertakes to make charges (or presentments) and to condemn your petitioners without the privilege of a trial by jury, or any other trial, without being heard in their own defense, and without an opportunity to produce witnesses or other evidence in their behalf; [and] (e ) the report (or presentment) in the manner made and published, is subversive of the principles of the government, and is opposed to every recognized rule of fairness and justice ....' " 152 Md. at 618-19, 137 A. 370.

In answering these contentions favorably to the movants the Court stated:

"At common law the function of the grand jury is confined to investigations of violations of the criminal law, and unless such investigations disclose facts which would constitute a recognized violation of the criminal law, they have no power or authority to criticize any particular individual or number of individuals." 152 Md. at 623, 137 A. 370.

The Court noted that grand juries are directed by statute in this and some other states to inspect State correctional facilities and county jails. It also noted that it has been customary for grand juries to present other reports but the opinion in no way intimates that these special duties and customs have undermined or eroded the essential functions of the grand jury.

The only statewide statutory authority for Maryland grand juries to report on what might be called non-criminal matters is found in Code (1957, 1982 Repl.Vol.) Art. 27, §§ 703 and 703 1/2. Section 703 requires grand juries "to inquire into the conduct and management of each of the State correctional institutions or correctional facilities within the jurisdiction of the court and to make presentments of all...