Chesek v. Jones

959 A.2d 795 (2008) 406 Md. 446 Craig B. CHESEK and Gregory J. Maddalone v. Adrienne A. JONES. No. 117, September Term, 2007. Court of Appeals of Maryland. November 6, 2008. ⁷⁹⁷ J. Donald Braden (Foster, Braden & Thompson, LLP, Stevensville), on brief, for appellants/cross-appellees.

Dan Friedman, Asst. Atty. Gen. (Douglas F. Gansler, Atty.

Gen. of Maryland, Kathryn R. Rowe, Bonnie Kirkland and Sandra B. Brantley, Asst. Attys. Gen., Annapolis), on brief, for appellee/cross-appellant. Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, IRMA S. RAKER (Retired, specially assigned), and DALE R. CATHELL (Retired, specially assigned), JJ.

IRMA S. RAKER, J., Retired, Specially Assigned. The question presented in these consolidated cases [1] is whether a Special Committee, formed by the Legislative Policy Committee pursuant to Maryland Code (1984, 2004 Repl. Vol.), § 2-407 of the State Government Article, possesses subpoena power in the course of its duties. Appellants Craig Chesek and Gregory Maddalone challenge the authority of the Special Committee to subpoena and compel testimony.

Appellee Adrienne Jones, co-chair of the Special Committee, argues that the subpoena action was valid. We shall hold that the provision granting the Legislative Policy Committee the authority to appoint a special committee in § 2-407(b)(3) of the State Government Article [2] necessarily carries with it the implied power to delegate subpoena power. I. A. The Legislative Policy Committee is a bi-partisan committee of the Maryland General Assembly established by statute under § § 2-401 to 410. Pursuant to subsection 2-407(a), the purpose of the Legislative Policy Committee is to fulfill the following functions: "(a) In general.—The Committee has the following functions: (1) to review the work of the standing committees; (2) to collect information about the government and general welfare of the State; (3) to study the operation of and recommend changes in the Constitution, statutes, and common law of the State; (4) to study the rules and procedures of the Senate and the House and recommend changes that would improve and expedite the consideration of legislation by the General Assembly; (5) to coordinate and supervise generally the work of the General Assembly when it is not in session; (6) to prepare or endorse a legislative program that includes the bills, resolutions, or other recommendations of the ⁷⁹⁸ Committee that are to be presented to the General Assembly at its next session; and (7) to carry out its powers and duties under the Maryland Program Evaluation Act." To carry out the expansive duties with which the Legislative Policy Committee is entrusted under § 2-407(a), the Legislative Policy Committee is granted extensive powers under § 2-407(b), including the power to appoint a special committee under section 2-407(b)(3).

The power of the Legislative Policy Committee is set forth as follows: "(b) Powers and duties.—To carry out its functions, the Committee: (1) shall receive, from any source, suggestions for legislation or investigation; (2) may hold a hearing on any matter; (3) may appoint a special committee; (4) may refer a matter for study and report to any of its special committees or any committee of the General Assembly; (5) shall consider the reports of standing, statutory, and special committees; (6) may have any bill or resolution prepared to carry out its recommendations; and (7) when the General Assembly is not in session: (i) may accept a gift or grant of money...; and (ii) may spend the money for that purpose, in accordance with the State budget." § 2-407(b) (emphasis added). [3] The Legislative Policy Committee may compel testimony, depose witnesses, and issue subpoenas under § 2-408, and may enforce compliance with such subpoenas by petitioning the circuit court. The powers granted in section 2-408(a) are set forth as follows: "(a) Authorized.—In carrying out any of its functions or powers, the Committee may: (1) issue subpoenas; (2) compel the attendance of witnesses; (3) compel the production of any papers, books, accounts, documents, and testimony; (4) administer oaths; and (5) cause the depositions of witnesses, who reside in or outside of the State, to be taken in the manner provided by law for taking depositions in a civil case." Section 2-408(b) then provides for enforcement of the subpoena power in the circuit courts of Maryland. [4] B. In 2005, the Maryland General Assembly, through the Legislative Policy Committee, began an investigation into the alleged wrongful political firings of employees within various state agencies during ⁷⁹⁹ Governor Ehrlich's administration. In June 2005, the Legislative Policy Committee created a twelve-member Special Committee on State Employees' Rights and Protections to examine procedures, practices, and standards pertaining to the involuntary separation of state employees. The Legislative Policy Committee tasked the Special Committee with investigating: "1.

(a) Whether Maryland law affords sufficient protection for State personnel against involuntary separations for illegal or unconstitutional reasons; and (b) Whether the government structure and procedures for decision making with respect to involuntary separations sufficiently protect State personnel from illegal or unconstitutional actions; "2. (a) Whether the manner in which Administrations have determined the subjects of involuntary separations and effected such separations is fundamentally fair and consistent with best practices for personnel management; and (b) What effect involuntary separations have on the overall quality and professional standards of the State government workforce; and "3. Whether additional statutory protections are needed to safeguard the rights of state personnel...." Legis. Policy Comm.

Res. (Md. 2005). In the resolution establishing the Special Committee, the Legislative Policy Committee expressly delegated all of its powers under § 2-408, stating in relevant part as follows: "[B]e it further resolved ... That the Special Committee is delegated the powers of the Legislative Policy Committee (LPC) under § 2-408 of the State Government Article." Id.

The powers delegated under § 2-408 include the Legislative Policy Committee's subpoena power, as listed in 2-408(a). The Special Committee adopted rules, held hearings, conducted briefings, and collected information related to employee separations occurring during the period from 1995 to 2005. To assist in collecting information, the Special Committee requested that the Ehrlich administration produce certain documents. The administration and various executive agencies failed to comply fully with the document requests and thus the Special Committee approved a plan to subpoena certain witnesses, including appellants Maddalone and Chesek. [5] Maddalone was an employee of the Maryland Department of Transportation and was alleged to have carried out a series of political firings at that department.

Chesek was an employee at the Public Service Commission and was alleged to have been involved with political firings within the Commission and other State agencies. On May 1, 2006, subpoenas were served on Chesek and Maddalone ordering them to appear before the Special Committee on May 11, 2006, and to testify regarding State employees' terminations and separation procedures. Appellants, with counsel, appeared before the Special Committee as ⁸⁰⁰ ordered. During their respective testimony, Maddalone and Chesek refused to answer certain questions, claiming their appearance was voluntary and that they were permitted to refuse to answer questions at their own discretion.

Maddalone was sworn in and discussed his involvement in evaluating employees at the Maryland Department of Transportation and making firing recommendations as well as maintaining a database related to the firings. He refused, however, to answer questions about who directed him to create the database or whether he was paying for private counsel. Chesek was sworn in and testified but refused to answer nearly a dozen questions related to alleged political firings within the Public Service Commission and the Department of Natural Resources. On May 22, 2006, the Special Committee voted to request the Circuit Court for Baltimore County to compel the appellants' testimony.

On June 1, 2006, Delegate Adrienne Jones, as co-chairperson of the Special Committee, filed a Petition for Order to Compel Testimony and a Motion for Summary Judgment in the Circuit Court for Baltimore County. Appellants filed a motion to dismiss and a cross-motion for summary judgment. On October 2, 2007, the Circuit Court granted Jones' motion for summary judgment against Chesek in its entirety, requiring him to answer all of the Special Committee's previously asked questions. With respect to Maddalone, the court granted Jones' motion for summary judgment in part and denied it in part.

The court ruled that Maddalone did not have to answer the Special Committee's questions regarding payment of his attorney's fees, but that he did have to respond to questions regarding a state employee database. [6] Appellants noted a timely appeal to the Court of Special Appeals challenging the order of the Circuit Court requiring them to answer certain questions posed by the Special Committee. Appellee filed a cross-appeal to challenge the ruling on questions relating to the payment of attorney's fees. In December 2007, appellee Jones filed a petition for a writ of certiorari with this Court. We granted certiorari to answer the following questions: [7] "1.

Could the Legislative Policy Committee have delegated its statutory subpoena power and investigatory powers to a `special committee' created pursuant to § 2-407(b)(3) of the State Government Article? "2. Where the respondent-witnesses made no objection before the Special Committee, have they waived objections to compelled testimony based on an alleged failure of the Committee to follow <sup>801</sup> its rules and there alleged `voluntary' appearance before the Committee? "3.

Can the respondent-witnesses assert that they are volunteers before the committee when they were served with a valid subpoena, appeared before the Committee and took the oath without qualification? "4. Do the respondent-witnesses have a privilege to refuse to discuss the personnel matters of specific employees or former employees before a committee investigating the alleged illegal and improper firing of State employees? "5.

May the attorney-client privilege be asserted before a legislative investigatory committee and, if it can, does the privilege prevent the Special Committee from inquiring, for purposes of determining undue influence and credibility, who was paying the respondent-witnesses' attorney fees?" Chesek v. Jones, 402 Md. 623 , 938 A.2d 825 (2008). [8] II. Appellants Chesek and Maddalone assert that the Circuit Court for Baltimore County lacks the jurisdiction to enforce the subpoenas of the Special Committee. More specifically, appellants maintain that the Special Committee did not have the power to subpoena appellants' testimony. Appellants recognize that the Legislative Policy Committee has the power to subpoena witnesses, but contend that the Legislative Policy Committee does not have the legal authority to delegate its subpoena power.

Appellants argue that the Legislature's later amendment of § 2-407(b) expressly included the delegation of subpoena power to a special committee, but that under the former statute, in effect when the subpoenas for Chesek and Maddalone took place, no such power was expressly given and therefore should not be implied. Appellee Adrienne Jones contends that Chesek and Maddalone have waived any objection to the subpoenas by complying with them and by failing to file a motion to quash. Appellee alleges that in creating the Special Committee pursuant to § 2-407(b)(3), the Legislative Policy Committee effectively delegated its subpoena power. Jones argues that the Legislative Policy Committee holds broad powers to carry out its statutory commissioned function and further assert that its subpoena power was necessarily delegated because the Special Committee created in this instance was a subcommittee of the whole Legislative Policy Committee.

In support of this contention, appellee notes an opinion of the Maryland Attorney General from 1951 that the Legislative Council, the predecessor to the Legislative Policy Committee, had authority to appoint a subcommittee to carry out investigations. 36 Op. Att'y Gen. 168 , 170 (1951). Appellee also points to federal law in support of the ability to delegate subpoena power. Finally, appellee argues that the legislative intent of the amendment to § 2-407(b)(3) was not to create new authority, but to clarify the existing authority of the Legislative Policy Committee to delegate subpoena power to any committees it creates.

Appellee also argues ⁸⁰² that the source of the payment of attorney's fees is not privileged.

III

We review a trial court's grant of a motion for summary judgment de novo. Dashiell v. Meeks, 396 Md. 149, 163 , 913 A.2d 10, 18 (2006). "In considering a trial court's grant of a motion for summary judgment, this Court reviews the record in the light most favorable to the non-moving party." Anderson v. Council of Unit Owners of the Gables on Tuckerman Condominium, 404 Md. 560, 570 , 948 A.2d 11, 18 (2008); Rhoads v. Sommer, 401 Md. 131, 148 , 931 A.2d 508, 518 (2007) ("We review the record in the light most favorable to the non-moving party and construe any reasonable inferences that may be drawn from the facts against the moving party"). In the absence of a genuine dispute of material fact, we determine whether the trial court's grant of summary judgment was correct as a matter of law.

See Maryland Rule 2-501(f); Anderson, supra, 404 Md. at 571 , 948 A.2d at 18 . The question in this case turns on whether a special committee, appointed by the Legislative Policy Committee under the authority of § 2-407(b)(3), has the same power to issue subpoenas as that of the Legislative Policy Committee under § 2-408(a). In interpreting a statutory provision, as we have often indicated, "[t]he cardinal rule of statutory interpretation is to ascertain and effectuate the intention of the legislature." WFS Financial, Inc. v. Mayor and City Council of Baltimore, 402 Md. 1, 13 , 935 A.2d 385, 392 (2007). "In statutory interpretation, the court's primary goal is always to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied by a particular provision." Anderson, supra, 404 Md. at 571 , 948 A.2d at 18 .

"The starting point in statutory interpretation is with an examination of the language of the statute. If the words of the statute, construed according to their common and everyday meaning, are clear and unambiguous and express a plain meaning, we will give effect to the statute as it is written." WFS, supra, 402 Md. at 13, 935 A.2d at 392 (quoting Jones v. State, 336 Md. 255, 261 , 647 A.2d 1204, 1206-07 (1994)). The statutory language is not read in isolation, but in the full context in which it appears, and "in light of external manifestations of intent or general purpose available through other evidence." Cunningham v. State, 318 Md. 182, 185 , 567 A.2d 126, 127 (1989). Although this Court will neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute, see, e.g., Stachowski v. Sysco, 402 Md. 506, 516 , 937 A.2d 195, 200 (2007), a necessary corollary to that principle is "that which necessarily is implied in the statute is as much a part of it as that which is expressed." Stanford v. Md. Police Training, 346 Md. 374, 379 , 697 A.2d 424, 426 (1997) (emphasis in original); see also Soper v. Montgomery County, 294 Md. 331, 335 , 449 A.2d 1158, 1160 (1982); Guardian Life Ins. v. Ins.

Comm'r, 293 Md. 629, 643 , 446 A.2d 1140, 1148 (1982); Chillum-Adelphi v. Board, 247 Md. 373, 377 , 231 A.2d 60, 62 (1967); Restivo v. Princeton Constr. Co., 223 Md. 516, 525 , 165 A.2d 766, 771 (1960). We read within the provision of § 2-407(b)(3), which grants the Legislative Policy Committee the power to create a special committee, the implied delegation of the Legislative Policy Committee's powers, including subpoena power, to fulfill its larger tasks as set forth in § 2-407(a). First, we note that the investigative power of the Legislature is both ⁸⁰³ inherent and expressly provided for by statute.

The principle is long-standing that a legislature is vested with all investigative power necessary to exercise its function properly. See, e.g., McGrain v. Daugherty, 273 U.S. 135, 174 , 47 S.Ct. 319, 328 , 71 L.Ed. 580 (1927) ("[T]he power of inquiry—with the process to enforce it—is an essential and appropriate auxiliary to the legislative function"); J. Michael McWilliams, The Investigative Power of the General Assembly, in CONSTITUTIONAL CONVENTION COMMISSION OF MARYLAND, CONSTITUTIONAL REVISION STUDY DOCUMENTS 125 (1968) ("Under the American Constitutions, the legislature possesses not only such powers as are expressly granted to it but also such auxiliary powers as are necessary and proper to make the