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. ²¹⁶ Section 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 ²¹⁷ any 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 ²¹⁸ change 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 ²¹⁹ recodification 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 ²²⁰ of 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