Mid-Atlantic Power Supply Ass'n v. Public Service Commission

HARRELL, Judge,

dissenting, joined by RODOWSKY and RAKER, Judges:

I agree with the majority’s decision to lift the stay on the order of the Public Service Commission (“Commission”); however I am unpersuaded by the Court’s decision with regard to the Appellant trade association’s standing to seek judicial review from the Commission’s order of 10 November 1999. The majority holds that the plain language of the statute grants standing to seek judicial review to a trade association with no interest at stake different than the interest of its members. The majority’s holding in this case offends settled principles of statutory construction and established case law. I would hold that the trade association lacks standing. Accordingly, I dissent and would affirm the judgment of the Circuit Court for Baltimore City dismissing the petition for judicial review.

*216Section 3-202(a) of the Public Utility Companies Article (“PUC”), limits the right to seek judicial review to “a party or person in interest, including the People’s Counsel, that is dissatisfied by a final decision or order of the Commission.” The Mid-Atlantic Power Supply Association (“MAPSA”) contends that it was both a party before the Commission and a person as defined by the statute,1 and that, because it is clearly “dissatisfied” with the Commission’s order, it is entitled to seek judicial review. The problem with this analysis is that it ignores the modifying phrase “in interest” contained in the statute.

In Bosley v. Dorsey, 191 Md. 229, 60 A.2d 691 (1948), this Court was asked to determine if the Commission’s then newly created People’s Counsel possessed the requisite standing to seek judicial review of an order of the Commission.2 The statute, as written at the time, contained two separate provisions for judicial review from an order by the Commission. It provided, in pertinent part, as follows:

Any company, corporation, association, person or partnership subject to any of the provisions of this sub-title, or person or party in interest, shall have the right to proceed to the courts to vacate, set aside or have modified an order of said Commission on the ground that such order is unreasonable or unlawful, as hereinafter more particularly set forth.

Maryland Code, 1939, Article 23, § 359. The statute further provided:

Any corporation subject to this sub-title, or any of the provisions of this sub-title, and any person in interest being dissatisfied with any order of the commission, fixing any rate or rates, tolls, charges, schedules, joint rate or rates, or *217any order fixing any regulations, practices, acts or service, may commence any action in the Circuit Court for any county, or before any judge of the supreme bench of Baltimore City, in any court of Baltimore City of appropriate jurisdiction which may be adopted for the purpose, against the commission as a defendant to vacate and set aside any such order on the ground that the rate or rates, tolls, charges, schedules, joint rate or rates, fixed in such order is unlawful, or that any such regulation, practice, act or service fixed in such order is unreasonable, in which action a copy of the complaint shall be served with the summons.

Maryland Code, 1939, Article 23, § 415. The question presented in Bosley was “whether the People’s Counsel is a ‘person in interest’ within the contemplation of the statute.” 191 Md. at 233, 60 A.2d at 693.

The Court interpreted the two statutory provisions as granting standing to seek judicial review to any “regulated public utility or ... any individuals or corporations having an interest adversely affected by the order.” Bosley, 191 Md. at 236, 60 A.2d at 694 (citing Public Serv. Comm’n v. Byron, 153 Md. 464, 471, 138 A. 404, 407 (1927)). Based on this language, the Court rejected the argument that the Legislature intended that the People’s Counsel could seek judicial review as an agent for the public.

Shortly after Bosley, the General Assembly amended the PUC specifically to allow the People’s Counsel to seek judicial review. In 1955 the General Assembly decided to recodify the PUC. In the REPORT OF THE COMMISSION TO REVISE AND RECODIFY THE LAWS CONCERNING THE PUBLIC SERVICE COMMISSION (1955) (“REPORT”), the legislative study commission noted that “[a]s a result, in part, of this basic defect of lack of an integrated statutory plan, the law is also swollen with much needless repetition.” REPORT at 3. Thus, a basic goal of the proposed recodification was to eliminate such repetition and reorganize the statute into a coherent form. See REPORT at 4. The Commission also stated, in the introduction to the Report, that any “changes in phraseology of the present law are not intended to effect any *218change in meaning unless such intention is specifically stated in the explanatory notes, or the clear language of the draft leads inescapably to the conclusion that some change in meaning must have been intended.” REPORT at 5. The 1955 revision of the PUC was a product of the Commission’s recommendations.

The judicial review provisions of the former statute, as recommended by the Commission, were recodified into one section. The recodified statute provided, in pertinent part, as follows:

Any party or any person in interest, including the People’s Counsel, dissatisfied by a final decision or order of the commission, whether affirmative or negative in form", is entitled to judicial review thereof as provided in this subtitle.

Maryland Code, 1955, Article 78, § 83.3 In Bureau of Mines v. George’s Creek, 272 Md. 143, 155, 321 A.2d 748, 754-55 (1974), we identified the significance of changes made to a statute in a recodification:

[A] change in phraseology of a statute in a codification will not as a general rule modify the law, unless the change is so radical or material that the intention of the Legislature to modify the law appears unmistakable from the language of the Code.

The comment to former § 83 of Article 78 of the revised code specifically stated that the section was intended to integrate the existing provisions for judicial review into one easily understandable section. See REPORT at 69; see also Allers v. Tittsworth, 269 Md. 677, 683, 309 A.2d 476, 480 (1973) (explaining that it is a well-settled practice of this Court to refer to the Revisor’s Notes when searching for the legislative intent). Thus, other than to alter the result in Bosley by expressly declaring the People’s Counsel to be a ‘party in interest,’ the changes made to the statute during the 1955 *219recodification were not intended to enlarge the class of persons in interest beyond the scope of the class as interpreted in Bosley, i.e., any ‘regulated public utility or ... any individuals or corporations having an interest adversely affected by the order.’ Bosley, 191 Md. at 236, 60 A.2d at 694. Depending upon the context, the words “include” or “including” when used in a statute may have the meaning of “and” or “in addition to.” See Housing Authority of Baltimore City v. Bennett, 359 Md. 356, 372, 754 A.2d 367, 375 (2000). In other words, the only entity that enjoys statutory standing as a representative of persons in interest is the Office of People’s Counsel.

The majority’s basic assertion is that the plain meaning of the statute allows MAPSA standing to obtain judicial review in this case. Majority opinion at 204-05. The majority asserts that the term “dissatisfied” means something less than “an interest adversely affected” and thus the term “in interest,” as interpreted by the Bosley Court, would render “dissatisfied” meaningless. Majority opinion at 207-13, 214-15. Because one of the principal guidelines of statutory interpretation is that “[i]f reasonably possible, a statute is to be read so no word phrase, clause or sentence is rendered surplusage or meaningless,” Mazor v. Dep’t of Correction, 279 Md. 355, 360-61, 369 A.2d 82, 86-87 (1977), the majority reasons that the statute should be read to confer standing based on less than an interest adversely affected.4 Although this interpretation *220of the statute is facially appealing, it fails to persuade me of its correctness for three reasons: (1) the majority’s construction would also create surplusage; (2) the interpretation of the Bosley Court is more consistent with the plain language of the statute; and (3) the Legislature relied on the interpretation given to the language in Bosley when it recodified the statute.

First, under the majority’s construction of the language, the phrase “in interest” would become surplusage. If one assumes the term “dissatisfied” is the key term in determining what is required for judicial review, then “in interest” adds nothing to the statute. Under this construction, all that would be required to seek judicial review is that a party or a person is dissatisfied with an order or decision of the Commission. This construction cannot be correct. If it were, literally anyone would be empowered to seek judicial review of a Public Service Commission order. Hypothetically, a citizen of a service area not covered by the pertinent PSC order in the present case could challenge that order because he or she is dissatisfied with the fact that citizens in the erstwhile BGE service area will be paying less for electricity. Such an absurd consequence could not have been the intention of the Legislature. See Mazor, 279 Md. at 361, 369 A.2d at 87 (“[Wjherever possible an interpretation should be given to statutory language which will not lead to absurd consequences.”). I am not persuaded the Legislature intended to set the standing bar so low. If we must choose between two interpretations of a statute, each of which would create sur-plusage, we should choose the interpretation which the Legis*221lature previously has accepted and which does not create an absurd result.

Second, the majority’s interpretation of the statute fails because the definition of “in interest” articulated by the Bosley Court is more consistent with the plain language of the statute. The phrase “party in interest” is often referred to as a “real party in interest.” The definition of “real party in interest” has been the issue of much debate. In more recent years, the trend has been to define a real party in interest as:

A person entitled under the substantive law to enforce the right sued upon and who generally, but not necessarily, benefits from the actions final outcome.

BLACKS LAW DICTIONARY 1143 (7th ed.1999); see also South Down Liquors, Inc. v. Hayes, 323 Md. 4, 7-8, 590 A.2d 161, 162-63 (1991). This, however, could not be the definition the General Assembly intended when it enacted the statute at issue here. This section of the statute is supposed to establish who may enforce rights.5 Thus, an interpretation which incorporates the modern definition of “party of interest” would render the statute meaningless. The General Assembly must have intended “party or person in interest” to mean something other than the modern definition.

At the time the statute was originally written and recodi-fied, a “real party in interest” was generally defined as follows:

In statutes requiring suits to be brought in the name of the “real party in interest,” this term means the person who is actually and substantially interested in the subject-matter, as distinguished from one who has only a nominal, formal, or technical interest in it or connection with it.

BLACKS LAW DICTIONARY 1278 (4th ed.1951). This definition would seem to fit more appropriately into the general *222legislative intent of the statute. If a party or person in interest has a substantial stake in the proceedings, it is reasonable to assume that in nearly every instance when that party or person would be dissatisfied with an order, the order also would adversely affect its interests. Thus, the plain meaning of the statute comports more closely with interpretation provided by the Bosley court than with the interpretation the majority asserts today.

Third, evén if the interpretation of the statute in Bosley was not what the earlier Legislature intended, the Legislature since has relied on that interpretation in recodifying the statute. “The General Assembly is presumed to be aware of this Court’s interpretation of its enactments and, if such interpretation is not legislatively overturned, to have acquiesced in that interpretation.” Nationwide Mutual Insurance Co. v. USF & G, 314 Md. 131, 143, 550 A.2d 69, 75 (1988)(intemal quotation marks omitted)(quoting Harden v. Mass Transit Admin., 277 Md. 399, 406, 354 A.2d 817, 824 (1976)). If the Legislature had intended a trade association to be able to seek judicial review, it could have removed the phrase “in interest” or specifically provided for such an eventuality.

The General Assembly did make one substantive change to our interpretation in Bosley by specifically allowing the People’s Counsel to seek judicial review. Nevertheless, neither this change, nor any of the changes made subsequently, have removed the term “in interest” from the statute. Thus, the interpretation given to that phrase in Bosley has been accepted by the Legislature, and we can conclude that it is the interpretation that the General Assembly intended at recodifi-cation. A reviewing court cannot simply look at the plain language of the statute in a vacuum and ignore comments to a statute and decision interpreting very similar language. The legislative history and the interpretation given to the nearly identical language in Bosley allows us to ascertain the real intention of the Legislature. See Mazor, 279 Md. at 360, 369 A.2d at 86 (“The cardinal rule of construction of a statute is to ascertain and carry out the real intention of the legislature.”).

*223The decision in Bosley v. Dorsey is controlling in the instant case. Therefore, a party, other than the People’s Counsel, in order to seek judicial review from an order of the Commission, still must have an interest adversely affected by the order. MAPSA does not generate or distribute electricity in Maryland, nor does it propose to do so after deregulation. Only its constituent members may be affected adversely by the Commission order. MAPSA is a trade association with no legally cognizable direct or substantial interest in the implementation of the order. It does not have an interest adversely affected by the order that we should recognize. Consequently, MAP-SA has no standing to seek judicial review in the present case. Its petition for judicial review was dismissed properly by the Circuit Court.

Judges RODOWSKY and RAKER authorize me to state that they join in this dissent.

. Section l-101(s) of the PUC defines a person as "an individual, receiver, trustee, guardian, personal representative, fiduciary, or representative of any kind and any partnership, firm, association, corporation or entity.”

. At the time of Bosley, the process of judicial review was referred to as an appeal.

. The language used in this statute is nearly identical to the statute as it appears today.

. Although not called upon to decide the issue presented by the present case, our predecessors seem to have assumed (albeit in dicta) that the standing to seek judicial review conferred by the various iterations of the pertinent statute included a requirement that one’s interest be adversely affected and that one be aggrieved. See Bosley v. Dorsey, 191 Md. 229, 235-36, 60 A.2d 691, 694 (1948) (stating that the rights of any parties aggrieved by any action of the Commission were completely secured by the provision that “ ‘any person in interest being dissatisfied with any order’ may commence a suit against the Commission” and that "[ajppeals from an order of the Commission may be taken either by a regulated public utility or by any individuals or corporations having an interest adversely affected by the order" (citing Public Serv. Comm’n v. Byron, 153 Md. 464, 471, 138 A. 404, 407 (1927); Gregg v. Laird, 121 Md. 1, 32, 87 A. 1111, 1114 (1913))); Byron, 153 Md. at 471, *220138 A. at 407 ("If any corporate or private interest is adversely affected, it may attempt to enforce its position under the section cited ...." (referring to then § 404 of Art. 23, which provided "any corporation subject to this sub-title ... and any person in interest being dissatisfied with any order of the commission ... may commence any action ... against the commission....”)); Gregg, 121 Md. at 32, 87 A. at 1114 ("[T]he rights of parties who may feel aggrieved by the action of the Commission are fully guarded and protected by the provision of section 43 of the Act 'that ... any person in interest being dissatisfied with any order of the Commission may commence any action ... against the Commission ....’" (emphasis omitted)).

. "The question of standing ... concerns ... whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute ... in question.” Ass'n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184, 188 (1970).