Baltimore Gas & Electric Co. v. Department of Health & Mental Hygiene

Smith, J., delivered the opinion of the Court. We shall here hold that Maryland Code (1957, 1971 Repl. Vol., 1978 Cum. Supp.) Art. 43, § 706 (the statute) does not require an electric company to obtain a permit from the Department of Health and Mental Hygiene (the Department) as a condition to use of one of its “generating stations.” The statute provides in pertinent part: “The Department may require by regulation that before any person either builds, erects, alters, replaces, operates, sells, rents, or uses any article, machine, equipment or other contrivance specified by such regulation the use of which may cause emissions into the air, such person shall obtain a permit to do so or be required to register with the Department.

The aforesaid provisions of this section shall not apply... to generating stations constructed by electric companies. The Secretary of Health and Mental Hygiene upon notification from the Public Service Commission of an application for a certificate of public convenience and necessity shall ²¹⁸ prepare a recommendation in connection with the registration or permit required by this section. Such recommendation shall be presented at the hearing required under Article 78, § 54A, of the Annotated Code’of Maryland. The decision of the Public Service Commission in connection with the registration or permit shall be binding on the Secretary of Health and Mental Hygiene, subject to judicial review as set forth in the provisions of Article 78, § 91, subsection (a)” When this section was originally enacted by Chapter 244 of the Acts of 1970 it consisted only of the first sentence and exclusions (not here pertinent) in that portion of the second sentence prior to the statement relative to “generating stations constructed by electric companies.” Chapter 31 of the Acts of 1971 (the Act) added the word “aforesaid” before “provisions” in the second sentence and the remainder of the present section including the language relative to “generating stations.” The Department initially read the Act as giving it no authority to require electric companies to obtain permits from it for their generating stations.

After the General Assembly declined on several occasions to accede to the requests of the Department for the grant of such authority, the Department determined that a more careful study of the whole Act warranted a conclusion that electric companies could not operate their generating stations without permits from it, 1 Accordingly, it dispatched a letter to appellant, Baltimore Gas and Electric Company (BG&E), requesting that it submit applications for permits to operate “all [of its] fuel burning equipment----” BG&E replied with an assertion that after careful study of the matter it was of the view that “the clear and unambiguous exception granted for electric generating stations in the second sentence of Article 43, Section 706” was “at odds” with the position taken by the Department. ²¹⁹ Therefore, it immediately sought a declaratory judgment in the Superior Court of Baltimore City. That court held “that the exclusionary provision of Section 706 is ambiguous.” It then determined that under the Act the Department continued to have “permit authority over the then existing electric plants,” but not over new facilities. It was of the view, however, that “any changes or modifications of facilities are subject to Department approval.” BG&E appealed to the Court of Special Appeals. We granted the writ of certiorari prior to consideration of the case by that court.

In Police Comm’r v. Dowling, 281 Md. 412 , 379 A. 2d 1007 (1977), we said in pertinent part relative to statutory construction, citing a number of cases for each of the statements there made: “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 foVm. ...

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----” Id. at 418-19 . In Height v. State, 225 Md. 251, 170 A. 2d 212 (1961), Judge Prescott said for the Court: “[W]hen the words of a statute are of doubtful meaning, the Court, in determining legislative ²²⁰ § 21:8-:10, at 762-71 (6th ed. S. Gard 1972); 8 J. Wigmore, supra, § 2292, at 554.

The privilege is based upon the public policy that “ ‘an individual in a free society should be encouraged to consult with his attorney whose function is to counsel and advise him and he should be free from apprehension of compelled disclosures by his legal advisor.’ ” Harrison v. State, supra, 276 Md. at 135, 345 A. 2d at 838 (quoting Morris v. State, 4 Md. App. 252, 254 , 242 A. 2d 559, 560 (1968)); accord, 8 J. Wigmore, supra, § 2291, at 545. While never given an explicit constitutional underpinning, the privilege is, nevertheless, closely tied to the federal, as well as this State’s, constitutional guarantees of effective assistance of counsel and could, if limited too severely, make these basic guarantees virtually meaningless. Harrison v. State, supra, 276 Md. at 133-34, 345 A. 2d at 837; United States v. Alvarez, 519 F. 2d 1036, 1045-47 (3d Cir. 1975); see U.S. Const. amend. VI; Md. Deck of Rts., Art. 21.

Initially we observe that, given the complexities of modern existence, few if any lawyers could, as a practical matter, represent the interest of their clients without a variety of nonlegal assistance. Recognizing this limitation, it is now almost universally accepted in this country that the scope of the attorney-client privilege, at least in criminal causes, embraces those agents whose services are required by the attorney in order that he may properly prepare his client’s case. Consequently, in line with the views of the vast majority of the courts in our sister jurisdictions, we have no hesitancy in concluding that in criminal causes communications made by a defendant to an expert in order to equip that expert with the necessary information to provide the defendant’s attorney with the tools to aid him in giving his client proper legal advice are within the scope of the attorney-client privilege. E.g., United States v. Alvarez, supra, 519 F. 2d at 1046 (psychiatrist); United States v. Kovel, 296 F. 2d 918, 922 (2d Cir. 1961) (accountant); People v. Lines, 13 Cal. 3d 500 , 531 P. 2d 793, 800-03 , 119 Cal.

Rptr. 225, 232-35 (1975) (psychiatrist); accord, 3 B. Jones, supra, § 21:15, at 786-87. But cf. State v. Mingo, 143 N.J. Super. 411 , 363 A. 2d 369, 370-71 (1976) (per curiam) (because defendant’s handwriting exemplars not privileged communications, ²²¹ State’s solicitation at trial of opinion of defense-hired graphologist as to identity of handwriting on note sent to assault victim not barred by attorney-client privilege). This is uniquely so in cases concerning the question of a criminal defendant’s sanity, because the need of an attorney to consult with a qualified medical expert is paramount. Such a medical expert not only provides testimony that usually is necessary at trial to support an insanity defense, but also “attunes the lay attorney to unfamiliar but central medical concepts and enables him, as an initial matter, to assess the soundness and advisability of offering the defense ... and perhaps most importantly, ... permits a lawyer inexpert in the science of psychiatry to probe intelligently the foundations of adverse testimony.” United States v. Taylor, 437 F. 2d 371 , 377 n. 9 (4th Cir. 1971).

The State here does not dispute the inclusion of psychiatric communications within the scope of the attorney-client privilege; instead, it contends that when Mrs. Pratt interposed a defense of insanity, she waived the privilege with respect to all statements she may have made to any medical expert, whether in her employ or in that of the State. 3 While there is little doubt that a client may waive this right to confidentiality, which may be done either expressly or impliedly, see, e.g., Harrison v. State, supra, 276 Md. at 136-38, 345 A. 2d at 839; 8 J. Wigmore, supra, § 2327, at 634-39; but see 2 H. Underhill, Criminal Evidence § 333, at 841 (5th ed. P. Herrick 1956) (doubtful if any waiver of the privilege should be implied in criminal cause), we have been made aware of only one decision in which a court, the New York Court of Appeals, has held that raising the defense of insanity, without more, is a relinquishment of the attorney-client privilege as to communications between the client and his alienist. In its opinion the court justified its ²²² Art. 75, § 40 came into our statutory law through § 2 of the same Act. Judge Irving said for the Court: “The two sections of this Act of 1785 having been both re-enacted in 1860, when the Code was adopted, neither can have superiority over the other, and they must be construed together and both made to stand, as they did in the Act of 1785, the second sec. as an exception to the first.

For convenience sake they have been separated in the Code and no longer stand in juxtaposition as in the original, but having been re-enacted at one and the same time, they must be construed as if they had continued side by side.” Id. at 7. We turn, therefore, to an examination of the Act. Its title states that it is an act to add new sections 763 through 768 to Art. 66C of the Code “Title ‘Natural Resources,’ subtitle ‘In General,’ subheading ‘Department of Natural Resources,’ to follow immediately after Section 762 thereof, and to be under the new subtitle ‘Power Plant Siting’ to add a new § 5A to Art. 66C under the subtitle previously mentioned and the subheading “Department of Natural Resources”; to repeal and reenact with amendments § 706 of Art. 43 of the Code entitled “Health,” subtitle “Air Quality Control”; to repeal and reenact with amendments § 726 of Art. 66C under the subtitle “Wetlands,” subheading “Private Wetlands”; to repeal and reenact with amendments § 11 of Art. 96A of the Code with the title “Water Resources,” subtitle “Appropriation of Waters; Reservoirs and Dams”; to repeal and reenact with amendments § 54A of Art. 78 of the Code with the title “Public Service Commission Law,” subtitle “Public Service Companies,” subheading “Gas and Electric Companies”; to add a new § 54B to Art. 78; to repeal and reenact with amendments § 90 of Art. 78; to establish an environmental trust fund from a surcharge on generated kilowatt hours of electric energy to be used to underwrite a power plant environmental research and site evaluation program and to insure long-range and timely planning for power plant site selection and acquisition to strengthen the ²²³ State of Maryland’s capability to define and manage a power plant environmental research program, to provide for the exercise of eminent domain and potential power plant site ownership by the Secretary of Natural Resources, to exempt from local zoning certain sites, to assign responsibility to the Secretary of Natural Resources on applications to the Public Service Commission for certificates of public convenience and necessity associated with power plant construction, to provide for coordinated hearings and issuance of permits on applications for certificates of public convenience and necessity associated with power plant construction, to provide for certain exceptions in the construction of certain overhead transmission lines, to define the term “construction,” “to entitle the Secretary of Natural Resources to judicial review,” and “generally relating to power plant siting.” We shall proceed to a consideration of those various sections seriatim. The first group of sections (now found in Code (1974,1978 Cum.

Supp.) §§ 3-301 to -305, Natural Resources Article) provides for an environmental surcharge “as an added cost of generation ... of electric energy ... in Maryland”; the payment of the funds so obtained “into the special fund known as the Environmental Trust Fund”; the administration and handling of the fund; a power plant environmental research program; long-range power plant site evaluation; acquisition by the State of sites for the construction of electric generating stations with payment to be made from the Environmental Trust Fund and ultimate acquisition of such sites by electric companies; and that the Board of Review of the Department of Natural Resources should not have jurisdiction over any proceedings arising under that subtitle but that review in the nature of judicial review should be available “as set forth in [Code (1957, 1969 Repl. Yol., 1971 Cum. Supp.)] Article 78, Sections 89 through 98” pertaining to the Public Service Commission. The new § 5A of Art. 66C (now embodied in Code (1974) § 3-306, Natural Resources Article) specified that notwithstanding certain other provisions of law and in lieu of yet other sections, upon application to the Public Service Commission for a certificate of public convenience and ²²⁴ necessity associated with power plant construction where private wetlands or diversion of the waters of the State might be involved, the Public Service Commission was to notify the Department of such fact and supply it “with all pertinent available information regarding such application.” The Department then was to treat the application as one similar to a request for appropriation or use of waters under Art. 96A and similar to an application for a license for dredging and filling under Art. 66C.

The section set forth the procedures concerning such application including provision for the recommendation of the Department ’to the Public Service Commission. Next came the section here in controversy which we have quoted. Then in the order of things came an amendment to Art. 66C, § 726. As it previously existed, that section had referred to the necessity for a permit for anyone desiring to do certain work upon any wetlands.

The amendment provided that when an electric company applied to the Public Service Commission for a certificate of public convenience “associated with power plant construction which involves private wetlands, the hearing and permit procedures sh[ould] be in accordance with Section 5A of [Art. 66C].” An amendment to what was then Code (1957, 1964 Repl. Vol., 1970 Cum. Supp.) Art. 96A, § 11 followed next (now codified as Code (1974, 1978 Cum. Supp.) § 8-802, Natural Resources Article).

That statute as it had previously existed stated that after January 1, 1934, it should be unlawful “to appropriate or use, or to begin construction of any plant, building or structure which m[ight] appropriate or use any waters of the State, surface or underground, without the consent or permit of the Department, in writing, previously obtained, upon written application therefor to the Department.” The amendment said that notwithstanding other provisions of the subtitle of which § 11 was a part “an application to the Public Service Commission for a certificate of public convenience and necessity associated with power plant construction involving use or diversion of waters of the State, pursuant to Article 78, sh[ould] constitute an application for the permit required by [§ 11] and sh[ould] be handled in accordance with Section 5A of Article 66C.” ²²⁵ The next succeeding