Downes v. Downes

Dissenting Opinion by

BATTAGLIA, J.

I respectfully dissent.

In this case we have been asked to decide if under Sections 3-203 and 3-206 of the Estates and Trusts Article and Maryland Rule 6-411(c), the Orphans’ Court, or the Circuit Court on de novo appeal, has the discretion to accept a surviving spouse’s fifth petition for extension of time to make a statutory election where the petition was filed after the previous election period had expired. According to the majority, both *579the language of Section 3-206 and Rule 6-411(c) are mandatory restrictions on the Orphans’ Court’s authority to grant extensions, and any requests for extension that are filed after the prior period has lapsed must be denied.

I disagree that the provisions of Section 3-206 and Rule 6-411(c) contain express language prohibiting the Orphans’ Court from granting an extension request after the expiration of the previous election period. In my opinion, the language that the “court may extend the time for election, before its expiration” contained in Section 3-206(a) and the corresponding language in Rule 6-411 (c) are discretionary or directory rather than mandatory in nature, so that the Orphans’ Court may fashion an appropriate remedy for the late-filed request provided that the requesting party shows good cause warranting the extension. Neither the Orphans’ Court, nor the Circuit Court on appeal, determined whether good cause existed to grant Mrs. Downes’s request to extend the deadline to make a statutory election. Therefore, I would reverse the Court of Special Appeals and remand the case for further proceedings by the Orphans’ Court to make such a determination.

Under Section 3-203(a) of the Estates and Trusts Article1 a surviving spouse of a decedent may elect to take a statutory share of the decedent’s net estate instead of property left to the spouse by the decedent’s will. Section 3-206(a) provides the procedural deadlines for a surviving spouse to make that election, including any requests for extension of time to elect:

*580(a) In general; extension. — The election by a surviving spouse to take an elective share shall be made not later than seven months after the date of the first appointment of a personal representative under a will. The court may extend the time for election, before its expiration, for a period not to exceed three months at a time, upon notice given to the personal representative and for good cause shown.

Md.Code (1974, 2001 Repl.Vol.), § 3-206(a) of the Estates and Trusts Article. The broad purpose of the statute permitting the Orphans’ Court to extend the time to make an election was designed to provide sufficient time to enable a surviving spouse to determine the condition of the estate and to make reasoned, informed decisions as to whether he or she should take under the will or the statutory share. See Md.Code (1957, 1969 Repl.Vol.), Art. 93 § 3-206, cmt. (stating “[i]t is felt that this [section] will provide sufficient time within which the surviving spouse may make an informed determination of whether or not the election should be made, and at the same time will facilitate the early settlement of estates”), recodified as Md.Code (1974, 2001 Repl.Vol.), § 3-206(a) of the Estates and Trusts Article.

Maryland Rule 6-411(c), its counterpart, contains the same operative provisions for extensions:

Rule 6-411. Election to take statutory share.

(c) Extension of time for making election. Within the period for making an election, the surviving spouse may file with the court a petition for an extension of time. The petitioner shall deliver or mail a copy of the petition to the personal representative. For good cause shown, the court may grant extensions not to exceed three months at a time, provided each extension is granted before the expiration of the period originally prescribed or extended by a previous order. The court may rule on the petition without a hearing or, if time permits, with a hearing.

The pertinent question is whether the Orphans’ Court, or the Circuit Court on appeal, has any discretion to grant an extension when the request was not made within the time *581prescribed by Section 3-206 and its corresponding Rule. This Court has often stated that our goal in interpreting statutes is to “identify and effectuate the legislative intent underlying the statute(s) at issue.” Ross v. State Board of Elections, 387 Md. 649, 876 A.2d 692, 699 (2005); Serio v. Baltimore County, 384 Md. 373, 390, 863 A.2d 952, 962 (2004), quoting Drew v. First Guaranty Mortgage Corp., 379 Md. 318, 327, 842 A.2d 1, 6 (2003), in turn quoting Deny v. State, 358 Md. 325, 335, 748 A.2d 478, 483 (2000). We have held that the principles applied to statutory interpretation also are used to interpret the Maryland Rules. Davis v. Slater, 383 Md. 599, 604, 861 A.2d 78, 81 (2004); Beyer v. Morgan State University, 369 Md. 335, 350, 800 A.2d 707, 715 (2002); Pickett v. Sears, Roebuck & Co., 365 Md. 67, 78, 775 A.2d 1218, 1224 (2001); see generally Johnson v. State, 360 Md. 250, 265, 757 A.2d 796, 804 (2000). Like construing a statute, to ascertain the meaning of a rule of procedure we first look to the normal, plain meaning of the language. Davis, 383 Md. at 604, 861 A.2d at 81; Luppino v. Gray, 336 Md. 194, 204 n. 8, 647 A.2d 429, 434 n. 8 (1994); Rand v. Rand, 280 Md. 508, 511, 374 A.2d 900, 902 (1970); Balto. Gas & Elect. Co. v. Board of Cty. Commissioners of Calvert County, 278 Md. 26, 31, 358 A.2d 241, 244 (1976); Johnson, 360 Md. at 265, 757 A.2d at 804. If that language is clear and unambiguous, we need not look beyond the provision’s terms to inform our analysis, Davis, 383 Md. at 605, 861 A.2d at 81; Rand, 280 Md. at 511, 374 A.2d at 902; Johnson, 360 Md. at 265, 757 A.2d at 804; however, the goal of our examination is always to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied by a particular provision, be it statutory or part of the Rules. Davis, 383 Md. at 604, 861 A.2d at 81; Morris v. Prince George’s County, 319 Md. 597, 603-04, 573 A.2d 1346, 1349 (1990), citing Dept. of the Environment v. Showell, 316 Md. 259, 270, 558 A.2d 391, 396 (1989); Harford County v. Edgewater, 316 Md. 389, 397, 558 A.2d 1219, 1223 (1989). To that end, we must consider the context in which a statute or rule appears, including relevant legislative history. Davis, 383 Md. at 604, 861 A.2d at 81; Mayor and City Council of Baltimore *582v. Chase, 360 Md. 121, 129, 756 A.2d 987, 991-92 (2000), citing Kaczorowski v. Mayor and City Council of Baltimore, 309 Md. 505, 515, 525 A.2d 628, 632 (1987); Johnson, 360 Md. at 265, 757 A.2d at 804. Also, where the language of a statute or rule is ambiguous, external evidence may be referred to for discerning the purpose of the legislature, including the bill’s title or function paragraphs, relevant case law, and secondary sources. Davis, 383 Md. at 604, 861 A.2d at 81; Moore v. Miley, 372 Md. 663, 678, 814 A.2d 557, 567 (2003); Comptroller of the Treasury v. Clyde’s of Chevy Chase, Inc., 377 Md. 471, 483, 833 A.2d 1014, 1021 (2003); Johnson, 360 Md. at 265, 757 A.2d at 804; Schuman, Kane, Felts & Everngam, Chartered v. Aluisi, 341 Md. 115, 119, 668 A.2d 929, 932 (1995); Kaczorowski, 309 Md. at 515, 525 A.2d at 633.

In Scherr v. Braun, 211 Md. 553, 128 A.2d 388 (1957), Judge Hall Hammond, writing for this Court, discussed the factors used to determine whether a deadline contained within a statute is mandatory or directory, thereby enabling the court to exercise its discretion to act outside of the prescribed time limitation:

Where the directions of a statute look to the orderly and prompt conduct of business, including the business of a court, it is generally regarded as directory unless consequences for failure to act in accordance with the statute are set out. Statutory provisions fixing the time for performance of acts are held to he directory where there are no negative words restraining the doing of the act after the time specified and no penalty is imposed for delay.

Id. at 561, 128 A.2d at 391 (internal citation omitted) (emphasis added). In Scherr, the statute’s language,

The failure of the court to determine an appeal within a period of 30 days after the record has been filed in court by the local board as above provided, shall constitute an automatic affirmance of the local hoard’s decision, unless the time has been extended by the court for good cause shown *583was found to be mandatory in nature, because it contained “specific consequences of a failure to act [i.e., ‘shall constitute an automatic affirmance of the local board’s decision’], and an implication in the literal language that [was] a negation of the right to act after the time specified [i.e., if the court fails to act within thirty days, it has no further jurisdiction in the matter].” Id. at 562, 128 A.2d at 391.

This Court has employed this two prong test in various contexts in order to determine whether the statute or rule-based deadline is directory in nature rather than mandatory, emphasizing the lack of explicit consequences for non-compliance with time limitations. See In re Dewayne H., 290 Md. 401, 405-07, 430 A.2d 76, 79-80 (1981) (holding that the failure to prescribe a sanction for non-conformance with time limitations within a statute and its corresponding rule indicated that its effect was intended to be directory and not mandatory); Resetar v. State Board of Education, 284 Md. 537, 547-50, 399 A.2d 225, 230-32 (1979) (holding that the County Board’s regulation was directoiy because it “provide[d] no penalty and ma[d]e no provision in the event of a violation of the limit imposed”); Maryland State Bar Association v. Frank, 272 Md. 528, 533, 325 A.2d 718, 721 (1974) (holding that statute requiring bar association or state’s attorney on judge’s order to prosecute charges of professional misconduct not more than sixty days from the date of order was directory rather than mandatory with respect to the time limitation because “it [was] of some significance ... that the language of the statute provide[d] no penalty for failure to act within the time prescribed”); Director, Patuxent Institution v. Cash, 269 Md. 331, 305 A.2d 833 (1973) (holding that the statutory reporting provision deadline for persons awaiting examination and evaluation at Patuxent was directory and not mandatory); Garland v. Director, Patuxent Institution, 224 Md. 653, 655, 167 A.2d 91, 92 (1961) (holding that statutory provision for hearing new trial motions in criminal cases within ten days was directory rather than mandatory and that failure to hear the motion within time prescribed was not, alone, ground for relief under the Post Conviction Procedure Act); Scherr, 211 Md. at 566, *584128 A.2d at 394 (holding that statute providing that failure of court to determine appeal from Liquor License Board within thirty days after filing of record was mandatory because the statute provided an automatic affirmance of the agency’s decision as a sanction for non-compliance with the deadline).

Obviously, when a statute or rule is directory rather than mandatory, a court is not automatically bound to adhere to time limitations and could grant requests for extensions of time, despite the expiration of a previous election period. See Cash, 269 Md. at 341, 305 A.2d at 839 (analyzing former Md.Code (1957), Art. 31B § 7(a), recodified without substantive change as Md.Code (1999, 2002 Cum.Supp.), § 4-301(b) of the Correctional Services Article as directory); Garland, 224 Md. at 655, 167 A.2d at 92 (interpreting former Md.Code (1957), Art. 27 § 594(a), recodified without substantive change as Md.Code (2001), § 6-105 of the Criminal Procedure Article as directory). In this case, neither Section 3-206(a) of the Estates and Trusts Article nor its corresponding Rule 6-411(c) uses language that expressly constrains the Orphans’ Court from granting an extension after the time specified and no penalty is imposed for delay in granting a request for extension whether timely filed or not. See Scherr, 211 Md. at 562, 566, 128 A.2d at 391, 394 (failure of the court to act within prescribed time period resulted in an automatic affirmance of the local Liquor Board’s decision). In the absence of such language or legislative intent to the contrary, Section 3-206(a) and Rule 6-411(c) should be interpreted as directory rather than mandatory in nature and Mrs. Downes should be afforded the opportunity to show “good cause” as to why her fifth petition for extension to file an election was tardy. !

. Section 3 -203 states:

(a) General. — Instead of property left to him by will, the surviving spouse may elect to take a one-third share of the net. estate if there is also a surviving issue, or a one-half share of the net estate if there is no surviving issue.
(b) Limitation. — The surviving spouse who makes this election may not take more than a one-half share of the net estate.
(c) Calculation of net estate. — For the purposes of this section, the net estate shall be calculated without a deduction for the tax as defined in § 7-308 of the Tax-General Article.

Md.Code (1974, 2001 Repl.Vol.), § 3-203 of the Estates and Trusts Article.