Stachowski v. State

ADKINS, J.,

dissenting.

I respectfully dissent from the majority’s holding that Maryland Code (1974, 2006 RepLVol.), Section 12-202 of the Courts and Judicial Proceedings Article (“CJP”),1 deprives us of jurisdiction over these cases. According to the majority, when an appeal falls within one of the five statutory categories of CJP Section 12-202,2 and the Court of Special Appeals (“CSA”) has granted leave to appeal, this Court must await a decision on the merits and may not exercise its bypass jurisdiction under Section 12-203.3 This decision is an abrupt *300departure from thirty-five years of decisions from this Court holding that Section 12-202 applies only to bar review of the intermediate appellate court’s decision to grant or deny leave to appeal.

1. The History ofCJP Section 12-202

Importantly, the original form of Section 12-202 used very narrow language in limiting this Court’s jurisdiction. The law, as enacted in 1966, read:

[I]f it shall be made to appear to the Court of Appeals upon petition of any party, whether a defendant or the State, that a review is desirable and in the public interest, the Court of Appeals shall require, by certiorari or otherwise, any such case to be certified to the Court of Appeals for its review and determination, except no such petition shall be entertained by the Court of Appeals from the denying or granting by the Court of Special Appeals of an application for leave to prosecute an appeal in post conviction and defective delinquent proceedings and from the denying or granting by the Court of Special Appeals of a petition for review filed under § 21 of this article.

Maryland Code (1957,1966 Cum.Supp.), Art. 5, § 21A (emphasis added).

When Section 21A was recodified as CJP Section 12-202 in 1973, the Governor’s Commission to Revise the Annotated Code stated that the recodification was “merely a rearrangement of present law” for which “no changes [were] made.” The Governor’s Commission to Revise the Annotated Code, Report No. SB to the General Assembly of Maryland at 3 (21 Sept. 1972) (hereafter “Report No. 3B”). Despite this reassurance to the legislators, the revision to the language of Section 12-202, enacted by Chapter 2 of the Acts of the First Special Session of 1973, included the following, revised language: “No review by way of certiorari may be granted by the *301Court of Appeals in a case or proceeding in which the Court of Special Appeals has denied or granted” leave to appeal. This change introduced an ambiguity because it used language suggesting a substantive change, and a more expansive scope for Section 12-202.

The Revisor only worsened this ambiguity when it commented:

[T]he Court of Appeals has no jurisdiction at all to review cases in these categories. The present language refers in terms only to actions “denying or granting” leave to appeal or a writ of certiorari; it does not expressly prohibit review of a decision rendered after certiorari, for example, has been granted.

General Revisor’s Note, Laws of Maryland, First Special Session of 1973, at 354 (emphasis added). This misinterpretation appears to be based on some unnamed conversation with a person associated with the Court of Appeals, perhaps the Clerk of Court, as it added the following rather unusual notation:

The revisor is informed that this view of the statute was adopted by the Court of Appeals when it withdrew its order granting certiorari in Cherry v. State, 9 Md.App. 416 [264 A.2d 887] (1970).

Id. It appears that the author of the Revisor’s Note thought that the 1973 “clarifying” changes in language were offered by the Recodification Commission in an attempt to follow what the Revisor perceived to be the understanding of the Court of Appeals, rather than some legislative will to change the Court’s jurisdiction from that set forth in the previous version of the statute.

I submit that the change made to Section 12-202 during recodification was an unorthodox attempt by the Revisor to incorporate into the plainly-worded statute an interpretation of that section expressed by someone associated with the Court of Appeals, but never stated in any opinion issued by this Court. The Revisor’s unusual note cites as authority for this change, an order of the Court unaccompanied by an *302opinion, which denied certiorari after originally granting it. The Revisor, in doing so, departs from the Governor’s Commission’s explicit statement that the amendment to the statute was a “mer[e] rearrangement” of the language without substantive change. See Report No. 3B. In a recent case we observed that, in the context of a recodification, the legislature, believing the Revisor’s note to be accurate, may well follow it, even when it is erroneous. See Parker v. State, 402 Md. 372, 393-394, 936 A.2d 862, 875 (2007).4

This was the stance we took when addressing the 1973 recodification to Section 12-202 in the decade after its enactment. This Court was first called upon to reconcile the 1973 changes to the language of the statute, with its limited purpose and this Court’s otherwise expansive certiorari jurisdiction in Jourdan v. State, 275 Md. 495, 341 A.2d 388 (1975). In Jourdan, we addressed the effect of Section 12-202 on our jurisdiction, but only in a footnote. There, the trial court set aside a criminal conviction, and the State applied to the CSA for leave to appeal. Id. at 505, 341 A.2d at 394. In that case, like here, the CSA granted leave to appeal and transferred the ease to its regular appeals docket. Id. The CSA thereafter reversed the trial court decision, and we granted certiorari to review the decision on the merits. Id. at 506, 341 A.2d at 394. On the subject of jurisdiction, we simply said in a footnote:

*303Under Maryland Code (1974), § 12-202(1) of the Courts and Judicial Proceedings Article, this Court has no jurisdiction to review a decision of the Court of Special Appeals granting or denying leave to appeal in a post conviction proceeding. However, once the Court of Special Appeals grants leave to appeal in such a case and transfers the case to its appeal docket, the matter takes the posture of a regular appeal, and we do have jurisdiction under § 12-201[5] of the Courts and Judicial Proceedings Article to review the Court of Special Appeals’ decision on the appeal itself.

Id. at 506 n. 4, 341 A.2d at 394-395 n. 4.

The issue came up again two years later in Moss v. Director, 279 Md. 561, 569, 369 A.2d 1011, 1016 (1977) (Orth, J., dissenting) when it was raised sua sponte by Judge Orth in his dissent:

To me, there is no ambiguity whatsoever in the dictates of § 12-202. The plain and certain language leaves nothing to be construed or interpreted. The sure legislative intent is clearly expressed in the command that “[n]o review by way of certiorari may be granted by the Court of Appeals in a case or proceeding in which the Court of Special Appeals has denied or granted ...” leave to appeal in any of the three specified proceedings, one of which is the proceeding here—a defective delinquent proceeding.
The Court of Appeals has acknowledged that it has no jurisdiction to review a decision of the Court of Special Appeals granting or denying leave to appeal under § 12-202 in a post conviction proceeding. Jourdan v. State, 275 Md. *304495, 506, n. 4, 341 A.2d 388 (1975), Smith, J. dissenting on other grounds. But the Court justified review, despite the provisions of the statute[.]

Id. at 570-571, 369 A.2d at 1016-1017. The Moss majority opinion did not respond to the dissent’s jurisdictional argument, and simply made its ruling on the merits.

Shortly after Moss, the leading case on this jurisdictional issue, Williams v. State, 292 Md. 201, 438 A.2d 1301 (1981), was written by Judge Eldridge. The Court in Williams declined to interpret Section 12-202 according to the recodified language, and instead confirmed Jourdan’s narrow interpretation. Id. at 208-11, 438 A.2d 1301, 1304-05. The appeal arose after a criminal defendant challenged his conviction under the Post Conviction Procedure Act, and the post-conviction trial court granted the defendant a new trial. Id. at 204, 438 A.2d at 1302. The CSA granted the State’s request for leave to appeal and remanded to the trial court for reconsideration. Id. Williams then sought writ of certiorari from this Court to appeal the remand, which we granted. Id. at 205, 438 A.2d at 1302.

In rejecting the State’s argument in Williams—that Section 12-202 deprived this Court of jurisdiction to hear post-conviction cases at all6—our language was unmistakably clear in articulating the very limited scope of the jurisdictional restriction set forth in Section 12-202

[W]e reaffirm the holdings in Jourdan and Moss that the limitation upon this Court’s jurisdiction set forth in § 12-202 of the Courts and Judicial Proceedings Article relates only to the action of the Court of Special Appeals in granting or denying an application for leave to appeal. Except for the nonreviewability of that specific action, we have jurisdiction over the type of cases listed in § 12-202 to the extent that such jurisdiction is conferred by § 12-201 or other statutory provisions. Therefore, in the present case, *305although we may not review the Court of Special Appeals’ exercise of discretion in granting the State’s application for leave to appeal, we are authorized to review that court’s decision on the merits remanding the case to the trial court.

Id. at 210-11, 438 A.2d at 1305 (emphasis added).

To support this departure from the language of the statute, Judge Eldridge relied on precedent and legislative acquiescence to judicial decisions:

The Legislature has re-enacted with amendments § 12-202 of the Courts and Judicial Proceedings Article on two occasions since the Jourdan case was decided in July 1975. See Ch. 678, § 4, of the Acts of 1977 and Ch. 311, § 3, of the Acts of 1977. It has also amended the Post Conviction Procedure Act twice since 1975. See Ch. 678, § 1, of the Acts of 1977 and Ch. 472, § 6, of the Acts of 1976. On none of these occasions did the Legislature change the interpretation of those statutes set forth by this Court in Jourdan.
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. This presumption is particularly strong whenever, after statutory language has been interpreted by this Court, the Legislature re-enacts the statute without changing in substance the language at issue. Under these circumstances, it is particularly inappropriate to depart from the principle of stare decisis and overrule our prior interpretation of the statute.

Id. at 209-10, 438 A.2d at 1305 (citations omitted) (emphasis added).

In subsequent cases involving Section 12-202, we applied the holdings of Jourdan and Williams to different factual circumstances, although never in a case involving Section 12-203 bypass jurisdiction. See, e.g., Sherman v. State, 323 Md. 310, 311, 593 A.2d 670, 670 (1991) (holding that § 12-202 bars jurisdiction when the CSA has simply denied an application for leave to appeal in a post-conviction proceeding); Cianos v. *306State, 338 Md. 406, 407, 659 A.2d 291, 292 (1995) (holding that Section 12-202 does not apply where the Court of Special Appeals addresses the merits in a denial); Grayson v. State, 354 Md. 1, 12, 728 A.2d 1280, 1285 (1999) (holding that 12-202 does not bar jurisdiction where the Court of Special Appeals decisions “were not simply discretionary determinations that there should be no appeals.”)

2. The Majority’s Holding

The majority, I submit, erroneously interprets this legislative history and line of cases to suggest that Section 12-202 limits our ability to review certain pending appeals on the merits. As justification for this discordant holding, the majority relies on two propositions: (1) that the Jourdan-Williams line of cases suggests that bypass jurisdiction should be limited, and (2) that the plain language of Section 12-202 must be interpreted to limit our jurisdiction in these cases. I disagree with both of these propositions.

Rather than apply the clear rationale of Williams that Section 12-202 “relates only to the action of the CSA in granting or denying an application for leave to appeal,” the majority effectively limits the holdings of Williams and its progeny to their specific factual or procedural circumstances. First, the majority distinguishes a series of cases in which the petitioner did challenge the actual decision of the CSA to deny leave to appeal.7 Rather than foreclosing our jurisdiction here, these cases simply apply the statutory rule that the Court of Appeals shall not review the grant or denial of an application for leave to appeal.

*307Second, the majority identifies a number of cases in which this Court reviewed the merits of a case after a CSA decision.8 The majority concludes from these cases that a decision from the lower appellate court is a prerequisite to our review.9 The majority supports this holding with the following, aforementioned, language in Jourdan:

Under Maryland Code (1974), § 12-202(1) of the Courts and Judicial Proceedings Article, this Court has no jurisdiction to review a decision of the Court of Special Appeals granting or denying leave to appeal in a post conviction proceeding. However, once the Court of Special Appeals grants leave to appeal in such a case and transfers the case to its appeal docket, the matter takes the posture of a regular appeal, and we do have jurisdiction under § 12-201 of the Courts and Judicial Proceedings Article to review the Court of Special Appeals’ decision on the appeal itself.

275 Md. at 506 n. 4, 341 A.2d at 394-95 n. 4 (emphasis added by majority). Again, the majority ignores the more important proposition from this quote in Jourdan, which is that after the CSA “transfers the case to its appeal docket, the matter takes the posture of a regular appeal.” It is the case’s status as a regular appeal that allowed us “to review the [CSA’s] decision!;,]” and should allow us to exercise bypass certiorari here. The majority avoids this logical result by transforming the effect of the Jourdan rule in one case into a precondition in all cases.

The majority fails to support its interpretation of the Jourdan-Williams line of cases with any passage from those cases *308even hinting that our bypass jurisdiction under Section 12-203 is so limited. Indeed, these cases do not even mention our bypass jurisdiction. The cases simply show instances in which we have elected to grant certiorari in the circumstance that the CSA has decided the merits of the case.

The majority’s second rationale is a statutory construction theory. Relying on the adage that in interpreting a statute, we must always take care that “no word, clause, sentence or phrase is rendered superfluous or nugatory”, (Maj. Op. at 298, 6 A.3d at 919), the majority reasons that to allow these appeals would render superfluous Section 12-202’s use of the word “granted.” (Maj. Op. at 297, 6 A.3d at 919).

The familiar canon that “a provision should not be construed so as to render it nugatory[,]” Bienkowski v. Brooks, 386 Md. 516, 548, 873 A.2d 1122, 1141 (2005), is merely a restatement of one of the principles of a “plain language” statutory interpretation:

The cardinal rule of statutory interpretation is to ascertain and effectuate the intent of the Legislature. Statutory construction begins with the plain language of the statute, and ordinary, popular understanding of the English language dictates interpretation of its terminology.
In construing the plain language, a court may neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute; nor may it construe the statute with forced or subtle interpretations that limit or extend its application. Statutory text should be read so that no word, clause, sentence or phrase is rendered superfluous or nugatory. The plain language of a provision is not interpreted in isolation. Rather, we analyze the statutory scheme as a whole and attempt to harmonize provisions dealing with the same subject so that each may be given effect.

Kushell v. Dep’t of Natural Res., 385 Md. 563, 576-577, 870 A.2d 186, 193 (2005) (emphasis added). The rule against rendering passages “nugatory,” like any canon of statutory construction, is not absolute. In the unusual case where the *309Legislature has not “meant what it said and said what it meant[,]” then the correct interpretation of the Legislature’s intent may render words or passages superfluous:

[WJhere words are found in a statute which appear to have been inserted through inadvertence or mistake, and which are incapable of any sensible meaning or are repugnant to the rest of the statute and tend to nullify it, and the statute is complete and sensible without them, they may be rejected as surplusage ...
The cardinal rule of statutory construction is that the court should ascertain from the entire statute the intention to be accomplished by the enactment. When that intention is clear it should be carried out, even though it may be necessary to strike out or insert certain words.

(Emphasis added). Pressman v. State Tax Commission, 204 Md. 78, 88-90, 102 A.2d 821, 827-828 (1954).

We have long recognized that the current form of Section 12-202 is the rare example where the statute’s plain language does not accurately represent the legislature’s intent. As this Court explained in Williams, and in the majority’s opinion in this case, the legislature never intended to give the statute any other meaning than its old form. For this reason, this Court has repeatedly declined to give full import to the plain language of the recodified version of the statute. In two cases, this Court looked to the original version of the statute, which clearly only barred the “granting or denying.” Williams, 292 Md. at 208-11, 438 A.2d at 1304-05; Grayson v. State, 354 Md. 1, 11, 728 A.2d 1280, 1285 (1999). The majority recognizes our long line of Section 12-202 jurisprudence, and acknowledges twenty-nine years of legislative acquiescence to our interpretation in Williams. See Maj. Op. at 292, 6 A.3d at 916, citing Chapter 295 of the Maryland Laws of 1983, Chapter 233 of the Maryland Laws of 1991. The majority, however, draws a choke-chain around the Jourdanr-Williams line of cases, and analyzes the statutory language anew.10

*310Moreover, despite the majority’s assertions that it is engaging in a “plain language” interpretation, the majority fails to even address the plain language of Section 12-203:

If the Court of Appeals finds that review of the case described in § 12-201 of this subtitle is desirable and in the public interest, the Court of Appeals shall require by writ of certiorari that the case be certified to it for review and determination. The writ may issue before or after the Court of Special Appeals has rendered a decision.

Id. (emphasis added). This statutory language makes it unmistakably clear that our bypass jurisdiction is coterminous with our jurisdiction to review a CSA decision on the merits under Section 12-201. The majority’s attempt to wrench the two apart, based on the single word “granted” in Section 12-202, ignores the interdependent nature of Sections 12-201,12-202, and 12-203, and the clearly expansive certiorari jurisdiction that the three sections give this Court.

Even if we were to follow the majority’s premise that we must give meaning to each word in the current form of Section 12-202, I still disagree that my interpretation would render part of the statute nugatory. While admittedly, under my view, this Court would “always have [bypass] certiorari jurisdiction when the Court of Special Appeals grants leave to appeal,” it does not follow that Section 12-202 would “apply only to denials of leave to appeal” and thus contain irrelevant words. Section 12-202 still bars review of the intermediate appellate court’s actual decision to grant leave to appeal. There are no recorded cases in which we have considered such an appeal, but the nonexistence of these cases does not mean that the “grant” clause of Section 12-202 is nugatory. The State could request certiorari, arguing that the CSA abused its discretion *311in granting a post-conviction defendant’s request for leave to appeal. An inmate, who was successful in an inmate grievance proceeding, could appeal the CSA’s decision to grant the warden’s request for leave to appeal. A criminal defendant, having pled guilty and received a sentence, could apply for certiorari on the grounds that the CSA should not have granted the State’s application for leave to appeal an illegal sentence. In any of these cases, the “granted” part of Section 12-202 would preclude our issuing certiorari; indeed, we have never considered, in a written opinion, such an appeal.

My final problem with the majority’s opinion is that it cannot be linked to any statutory purpose nor meaningful policy goal. The majority imposes a requirement here that this Court wait for a decision from the lower appellate court, even when this Court will likely issue certiorari after the decision. Yet, our bypass jurisdiction serves an obvious purpose: where a case is of pressing importance, we may address the case "without waiting for a CSA decision. This process serves judicial economy and ensures more speedy justice in important cases. The majority’s interpretation—that we have bypass jurisdiction for any case pending in the CSA except for the five statutory categories of Section 12-202, supports no meaningful policy goals and is inconsistent with the well-defined legislative intent that this Court have expansive certiorari jurisdiction.

In conclusion, I submit that the primary purpose of Section 12-202 was to relieve this Court of jurisdiction to review the otherwise high volume of complaints by convicted criminals seeking post-conviction relief that the CSA should have accepted their appeals. In doing so, the statute freed the Court to perform its other work.11 I see no evidence of legislative intent to deprive the Court of its jurisdiction under Section *31212-203 to exercise its bypass jurisdiction of these types of cases, when it deemed them to be of sufficient public interest.

For the above-stated reasons, I dissent.

Judges HARRELL and RODOWSKY authorize me to state that they join in the views expressed in this dissenting opinion.

. Unless otherwise provided, all statutory references are to Maryland Code, Courts and Judicial Proceedings Article.

. CJP Section 12-202 provides:

A review by way of certiorari may not be granted by the Court of Appeals in a case or proceeding in which the Court of Special Appeals has denied or granted:
(1) Leave to prosecute an appeal in a post conviction proceeding;
(2) Leave to appeal from a refusal to issue a writ of habeas corpus sought for the purpose of determining the right to bail or the appropriate amount of bail;
(3) Leave to appeal in an inmate grievance commission proceeding;
(4) Leave to appeal from a final judgment entered following a plea of guilty in a circuit court; or
(5) Leave to appeal from an order of a circuit court revoking probation.

. Section 12-203 reads:

If the Court of Appeals finds that review of the case described in § 12-201 of this subtitle is desirable and in the public interest, the Court of Appeals shall require by writ of certiorari that the case be *300certified to it for review and determination. The writ may issue before or after the Court of Special Appeals has rendered a decision.

. As part of the recodification, the Revisor made certain comments regarding the "Bouse Act”, Ch. 194 of the Acts of 1929, which dealt with the exclusionary rule. We recognized that these comments were based on a misguided interpretation:

In 1973, as an initial part of the project to revise the Maryland Code, the Revisor of the statutory provisions submitted to the General Assembly a proposed "Courts and Judicial Proceedings Article.” The proposed statute repealed the Bouse Act because, in the view of the Revisor, at that time, the Bouse Act was "unconstitutional” under Mapp v. Ohio. The Revisor's then view was erroneous, as the Bouse Act, to the extent that it required the exclusion of evidence, was entirely consistent with Mapp v. Ohio----Nevertheless, the General Assembly presumably accepted the Revisor’s position, and the Bouse Act was repealed ...

Id.; (citing Ch. 2 of the Acts of the First Special Session of 1973, General Revisor’s Note, Laws of Maryland, First Special Session of 1973, at 332).

. CJP Section 12-201 provides:

Except as provided in § 12-202 of this subtitle, in any case or proceeding pending in or decided by the Court of Special Appeals upon appeal from a circuit court or an orphans’ court or the Maryland Tax Court, any party, including the State, may file in the Court of Appeals a petition for certiorari to review the case or proceeding. The petition may be filed either before or after the Court of Special Appeals has rendered a decision, but not later than the time prescribed by the Maryland Rules. In a case or proceeding described in this section, the Court of Appeals also may issue the writ of certiorari on its own motion.

. The State also argues here, as it did in Williams, that this Court has no jurisdiction to review any case arising under Section 12-202’s listed categories.

. See Grayson, 354 Md. at 9, 728 A.2d at 1284 (petitioner challenged "whether the Court of Special Appeals erred in dismissing [the] application for leave to appeal”); Cianos, 338 Md. at 409, 659 A.2d at 292-93 (petitioner challenged denial of application for leave to appeal by the Court of Special Appeals); Sherman, 323 Md. at 311, 593 A.2d at 670 (petitioner sought review of the denial by the Court of Special Appeals of his application for leave to appeal from the denial of post-conviction relief).

. See, e.g., McElroy v. State, 329 Md. 136, 145, 617 A.2d 1068, 1073 (1993); Williams, 292 Md. at 204-05, 438 A.2d at 1302; Davis v. State, 285 Md. 19, 22, 400 A.2d 406, 407 (1979); State v. Ward, 284 Md. 189, 193 n. 6, 396 A.2d 1041, 1044 n. 6 (1978); Curtis v. State, 284 Md. 132, 137, 395 A.2d 464, 466-68 (1978); Moss, 279 Md. at 564, 369 A.2d at 1013; Jourdan, 275 Md. at 505-06, 341 A.2d at 394-95.

. ''[T]his Court only has certiorari jurisdiction over the types of cases set forth in § 12-202 only when the Court of Special Appeals rendered a decision on the merits or the viability of the appeal or the status or rights of a party.” (Maj. op. at 298, 6 A.3d at 919-20).

. If the majority were to analyze the language of the statute, moreover, it should follow our approach from Grayson, and look at the *310original statute. The pre-codification language includes the imperative that if "a review is desirable and in the public interest, the Court of Appeals shall require, by certiorari or otherwise, any such case to be certified to the Court of Appeals!.]” Maryland Code (1957, 1973 Cum.Supp.), Art. 5, § 21A. This clearly limits Section 12-202’s reach, and is not rendered nugatory by our bypass jurisdiction.

. Incidentally, it also relieves us of jurisdiction to review the state’s exceptions to the grant by the Court of Special Appeals’s of leave to appeal in post-conviction decisions and the other categories of cases set forth in CJP Section 12-202.