Opert v. Criminal Injuries Compensation Board

⁵⁹⁰ ALAN M. WILNER, Judge, Retired, specially assigned. The issue before us is whether petitioner, Jeffrey Opert, was the victim of a “crime,” as that term is defined in the law relating to the Criminal Injuries Compensation Act (Maryland Code, § ll-801(d) of the Criminal Procedure Article). The Criminal Injuries Compensation Board, the Circuit Court for Baltimore County, and the Court of Special Appeals held that he was not. We disagree with that conclusion and shall direct a remand to the Board for further proceedings.

BACKGROUND The Criminal Injuries Compensation law, now codified in §§ 11-801 through 11-819 of the Criminal Procedure Article (CP), was enacted in 1968 for the purpose of enabling innocent victims of certain crimes to receive State-funded compensation for physical injury sustained by them as a result of the crime. See Criminal Inj. Comp. Bd. v. Remson, 282 Md. 168, 171 , 384 A.2d 58, 61 (1978) and cases cited there.

With certain exceptions not relevant here, the law makes a “victim” eligible for an award. A “victim” includes a person who suffers physical injury as a result of a “crime.” CP § ll-801(f)(l). Section ll-801(d)(l) defines the word “crime,” in pertinent part, as “a criminal offense under state, federal, or common law” that is committed either in Maryland or against a resident of Maryland in another State. Section ll-801(d)(2), however, provides that “crime” does not include “an act involving the operation of a vessel or motor vehicle” unless “the act” is (i) in violation of § 20-102, § 20-104, § 21-902, or § 21-904 of the Transportation Article, 1 or (ii) operating a motor vehicle or vessel that results in intentional injury. ⁵⁹¹ The relevant facts underlying Mr. Opert’s claim are not in substantial dispute and may be taken from the claim form he filed with the Criminal Injuries Compensation Board, from subsequent letters by his attorney to the Board, and from a police report of the incident.

In the claim form, Opert stated that, on September 7, 2003, he was riding his motorcycle on I-695—the Baltimore Beltway—when “offender, a pedestrian, crossed said highway causing Claimant to wreck.” In a subsequent letter, his attorney added that Opert was riding on the inner loop of the beltway, a controlled access highway, when, without warning, Edward Burgess, a pedestrian, “walked out onto the highway with or on a bicycle.” Opert, who was traveling about 40 miles per hour, “was forced to lay down his motorcycle on the roadway to avoid hitting Mr. Burgess,” and, as a result, was “launched into the air,” fell, and was injured. The police report was consistent with that statement. Burgess was not charged with any offense; nor was Opert. In support of his contention that he was the victim of a crime, Opert noted that Maryland Code, § 27-101(a) of the Transportation Article (TR) makes the violation of any of the provisions of the motor vehicle laws (not otherwise declared to be a felony) a misdemeanor, and averred that, by his conduct, Burgess committed the following offenses: (1) walking on a controlled access highway, in violation of TR § 21-509, (2) failing to yield the right of way when not crossing in a crosswalk, in violation of TR § 21-503, and (3) having or riding a bicycle on a roadway where the speed limit is 50 miles per hour or more, in violation of TR § 21-1205.1.

He did not contend that Burgess had engaged in any intentionally injurious conduct, that he had violated TR § § 20-102, 20-104, 21-902, or 21-904, or that he had committed any other statutory or common law criminal offense. Opert acknowledged that, under CP § ll-801(d)(2), “crime” does not include an act involving the operation of a motor vehicle, which would include a motorcycle, but he contended that the exception was intended to disqualify only persons “who were victims of acts caused by persons operating a ⁵⁹² motor vehicle,” i.e., to fall within the exception, it must be the perpetrator who was operating a motor vehicle, not the victim. The violation of any traffic offense on the part of a pedestrian or bicyclist that causes a person in a motor vehicle to be injured would therefore constitute a crime and render the person eligible for a compensation award. In November, 2004, the Board informed Opert of its tentative decision to deny the claim and advised him that, if he disagreed with that decision, he could request a hearing before the Board.

In its tentative decision, the Board found as fact that Opert had “suffered multiple injuries in a motor vehicle accident in Baltimore County on September 7, 2003” and that he “was riding a motorcycle on 1-695 when he swerved to avoid a pedestrian and crashed.” The Board announced as a conclusion of law, however, that “the claimant’s injuries were not the result of a crime.” The Board’s tentative order denying the claim was dated November 23, 2004. Opert promptly informed the Board that he disagreed with the decision and requested a hearing. A hearing was held on April 27, 2005, although, because, with Opert’s acquiescence, no transcript was prepared, it is not clear what transpired at that hearing. The parties seem to agree that Opert was the only witness.

The Board denied reconsideration of its tentative decision, the Secretary of Public Safety and Correctional Services approved the decision, and Opert filed a petition for judicial review in the Circuit Court for Baltimore County. In the Circuit Court, Opert made the same argument he presented to the Board—that Burgess committed a crime because what he did was in violation of various traffic laws contained in the Transportation Article, that those violations constitute misdemeanors, and that the exception in CP § 11-801(d)(2) for acts involving a motor vehicle encompasses only conduct by the perpetrator that involves a motor vehicle. 2 ⁵⁹³ Both parties acknowledged that there were no material facts in dispute and that the issue was one of statutory construction. The court concluded that the law was not meant to cover victims of a motor vehicle accident, even if “the perpetrator of the accident may have violated a statute,” and it therefore affirmed the Board’s decision. In an unreported opinion, the Court of Special Appeals, after reviewing the legislative history of the Criminal Injuries Compensation law, agreed that the General Assembly did not intend for the law to cover motor vehicle accidents, even if caused by the conduct of a pedestrian, and it therefore affirmed the judgment of the Circuit Court.

DISCUSSION The issue before us is, indeed, one of statutory construction and therefore one of law. The overarching rule is that, in construing statutes, “our primary goal is always ‘to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied by a particular provision ...’” Barbre v. Pope, 402 Md. 157, 172 , 935 A.2d 699, 708 (2007), citing Dep’t of Health v. Kelly, 397 Md. 399, 419-20 , 918 A.2d 470, 482 (2007), and Gen. Motors Corp. v. Seay, 388 Md. 341, 352 , 879 A.2d 1049, 1055 (2005). If the language is clear and unambiguous, we ordinarily “need not look beyond the statute’s provisions and our analysis ends.” Barbre, supra, 402 Md. at 173 , 935 A.2d at 709 .

If, upon this preliminary analysis, however, we conclude that “the language is subject to more than one interpretation, it is ambiguous, and we resolve that ambiguity by looking to the statute’s legislative history, case law, and statutory purpose.” Barbre, supra, 402 Md. at 173 , 935 A.2d at 709 ; Patterson Park v. Teachers Union, 399 Md. 174, 198 , 923 A.2d 60, 74 (2007). To the extent relevant, we look as well to “the statute’s structure, including the title, and how the statute relates to other laws.” Stouffer v. Pearson, 390 Md. 36, 46 , 887 A.2d 623, 629 (2005). In a judicial review action in which an administrative agency’s interpretation of the statute ⁵⁹⁴ it is charged with implementing is challenged, it is ultimately for the court to determine whether the agency’s interpretation is legally correct, but, in making that determination, the court generally gives considerable weight to the agency’s view. Montgomery County v. Glenmont Hills, 402 Md. 250, 271 , 936 A.2d 325, 337 (2007); John A. v. Bd. of Education, 400 Md. 363, 382 , 929 A.2d 136, 147 (2007).

Finally, to the extent possible, remedial statutes “are to be liberally construed to ‘suppress the evil and advance the remedy.’ ” Cobum v. Cobum, 342 Md. 244, 256 , 674 A.2d 951, 957 (1996); Triggs v. State, 382 Md. 27, 45 , 852 A.2d 114, 125 (2004). See also Criminal Injuries Comp. Bd. v. Gould, 273 Md. 486, 494 , 331 A.2d 55, 61 (1975). In accordance with those principles, we turn first to the language of the statute—CP § 11—801(d).

As noted, subsection (d)(1) defines “crime” as including a criminal offense under State, Federal, or common law committed in Maryland or in another State against a Maryland resident, “except as provided” in subsection (d)(2). Subsection (d)(2) provides that “ ‘[c]rime’ does not include an act involving the operation of a vessel or motor vehicle unless the act is: (i) a violation of [one of the four enumerated Transportation Article offenses] or (ii) operating a motor vehicle or vessel that results in an intentional injury.” The particular language at issue here is “an act involving the operation of a ... motor vehicle.” Opert contends that the phrase refers only to the operation of a motor vehicle by the “perpetrator”—by the person who commits the offense. The language says that a crime does not include an act involving the operation of a motor vehicle. A crime is necessarily committed by the perpetrator—the actor—so if there is to be an exclusion, it must be in the context of the operation of the motor vehicle by the actor, not the passive victim.

The specific exceptions that follow—operating a motor vehicle in a way that results in intentional injuries and the particular offenses listed—all presume operation of the motor vehicle by the actor. The Board, with equal vigor, notes that the statute doesn’t make that distinction but instead speaks of an act ⁵⁹⁵ “involving the operation” of a motor vehicle. It urges that the exclusion applies whenever the injury arises from the operation of a motor vehicle, no matter who is operating it. Without any further context, the language could reasonably be read either way, and, for that reason, it is ambiguous.

We therefore need to look at other relevant indicators of what the Legislature intended, beginning -with the legislative history. The Criminal Injuries Compensation law was enacted in 1968 and was initially codified in Art. 26A of the 1957 Code. See 1968 Md. Laws, ch. 455. As now, it made a “victim” eligible for benefits, and it defined “victim” as “a person who suffers personal physical injury or death as a direct result of a crime.” The term “crime” was defined, in § 2(c) of Art. 26A, as follows: “ ‘Crime’ shall mean an act committed by any person in the State of Maryland which would constitute a crime as defined in Article 27 of the Annotated Code of Maryland (1967 Replacement Volume) or at common law, provided, however, that no act involving the operation of a motor vehicle which results in injury shall constitute a crime for the purpose of this article unless the injuries were intentionally inflicted through the use of a vehicle.” A number of things are significant about this initial enactment.

Although the basic criminal code was then set forth in Art. 27 of the Code, that article was not the embodiment of all of the statutory crimes in Maryland. There were many crimes created in other articles of the Code. The motor vehicle laws, and with them the various traffic offenses, were in Article 66)6 of the Code. By limiting the definition of “crime” to crimes defined in Art. 27 or common law crimes, the Legislature obviously intended to exclude all of those other statutory crimes, including the motor vehicle offenses contained in Article 66)6.

On the other hand, there were then (as there are now in the Criminal Law Article), a number of offenses in Article 27 in which the operation of a motor vehicle ⁵⁹⁶ could be involved, 3 so the specific exception for non-intentional acts involving the operation of a motor vehicle had meaning and was not mere surplusage. It served to exclude'from the program crimes that, because of their placement in Art. 27, would otherwise be included. ■ In addition, by confining the definition to crimes in Art. 27 or common law crimes, the Legislature excluded injuries resulting from conduct that constituted only a Federal crime, and by requiring that the crime be committed in Maryland, it excluded injuries suffered by Maryland citizens from crimes committed, in other States. Another significant limitation was imposed by § 5(b) of Art. 26A, which made a member of the family of the person criminally responsible for the crime upon which the claim was based ineligible for an award and thus effectively precluded an award to most victims of . domestic violence. The scope of the law was, and is, clearly circumscribed by the definition of “crime.” Section 12(a) of ArL 26A (and current CP § 11-810), which established conditions on awards, provided that- the Board could make an award only if it found that a crime (or now a delinquent act) was committed.

That scope, in the initial enactment, was deliberately narrow. As we pointed out in Criminal Inj. Comp. Bd. v. Gould, supra, 273 Md. at 495-96 , 331 A.2d at 62 , Maryland was only the fifth State in the country to adopt such a law.

A version of the law, apparently modeled on a 1966 New York law, had been presented to the General Assembly in 1967 and had died in the House Judiciary Committee. See Sen. Bill 9 (1967) and 1 Report to General Assembly of 1968, Legislative Council of Maryland, at 287. We observed in Gould, supra, 273 Md. at 496-97, n. 6 , 331 A.2d at 62, n. 6 , quoting from H. Edelhertz and G. Geis, Public Compensation to Victims of Crime, at 176 (1974): ⁵⁹⁷ “Governor Mandel is quoted as stating at the time the Legislative Council measure was proposed to the General Assembly in 1966 that the Bill ‘was viewed at the time with great skepticism’ and that the ‘legislators felt that they would be venturing into an uncharted area where we didn’t have any guidelines to go by.’ They were also concerned about the possible costs, with estimates ranging from $1 million to $10 million per year.” The restrictive definition of “crime” in the 1968 law remained intact until 1983, when the Legislature narrowed it further by excluding acts involving the operation of a vessel.

A major, and, in our view, determinative, expansion of the definition, and thus the scope of the law, came in 1985, in response to the Federal Victims of Crime Assistance Act of 1984 (VOCA) (P.L. 98-473, 42 U.S.C. § 10601 et seq.). Some background is important. Funds for the payment of awards under the Maryland program initially came from the assessment of a special $5 court cost on defendants convicted of criminal offenses other than motor vehicle or vessel violations. See former Art. 26A, § 17.

As noted, however, there was concern whether collections of those costs would suffice to meet the need. 4 VOCA created a permanent Federal Crime Victims Fund from which the U.S. Attorney General could make grants to State-operated victim compensation programs that met certain conditions. Among those conditions were that (1) the program provide compensation to victims of Federal crimes occurring within the State on the same basis that compensation was available to victims of State crimes, and (2) the State provide compensation for mental health counseling and funeral expenses. See §§ 1402 and 1403 of P.L. 98-473 ( 42 U.S.C. §§ 10601 and ⁵⁹⁸ 10602); also S.Rep. No. 98-497, accompanying P.L. 98-473, at 9, reprinted in 1984 U.S.C.C.A.N 3182, 3615. 5 Because the definition of “crime” in § 2(c) of Art. 26A included only crimes defined in Article 27 or common law crimes, the Maryland law did not then provide compensation to victims of any Federal crime, nor did it provide benefits for mental health counseling or funeral expenses.

In order for the Maryland program to be eligible for the Federal funds, therefore, it was necessary to amend the law in those respects. Partly to that end, Sen. Bill 639 was introduced into the 1985 Session as an Administration Bill. In its initial form, the bill seemed to have three major substantive objectives: (1) to broaden the definition of “crime” to include Federal crimes, (2) to permit the Board, in its discretion, to allow claims for injuries sustained through domestic violence by waiving the ⁵⁹⁹ disqualification for family members of the perpetrator under certain conditions, and (3) to permit an award for psychological injury.

The first two objectives were approved; the third was not, although the bill, as enacted, allowed an award for mental health counseling and funeral expenses, as required by VOCA. The first objective, of permitting an award for injuries sustained as the result of a Federal crime, from a drafting perspective, was an easy one to achieve. All that the Legislature needed to do was add the words “under Federal law” to the existing definition. That would have retained the limited universe of State crimes to those stated in Article 27 and common law crimes.

For whatever reason, however, the General Assembly did not choose that narrow approach. Instead, it amended the definition to include “an act committed by any person in this State which would be a crime under the laws of this State, Federal law, or at common law.” See 1985 Md. Laws, ch. 120. By substituting “under the laws of this State” for “as defined in Article 27,” the General Assembly, subject to the proviso for acts involving the operation of a motor vehicle, swept into the program all statutory crimes, wherever located in the Maryland Code, including Art. 66 '/¿. 6 ⁶⁰⁰ The effect of that expansion was to make the exclusion of crimes involving the operation of motor vehicles (and vessels) dependent entirely on the scope of the proviso that “no act involving the operation of a vessel or motor vehicle which results in injury shall constitute a crime for the purpose of this article unless the injuries were intentionally inflicted through the use of a vessel or motor vehicle.” As noted, when the universe of statutory crimes was limited to those in Art. 27, the only effect of the proviso was to further limit that universe by excluding Art. 27 crimes that involved the operation of a motor vehicle, but that changed radically when the universe was expanded to include all statutory crimes, including those in Art. 66)6. Whether a crime in which a motor vehicle was involved was to be thereafter excluded depended entirely on how the unamended proviso was to be construed.

The Legislature had several opportunities to revisit the issue, but declined to do so. In 1988, Congress amended 42 U.S.C. § 10602 (b) to require, among other things, that the State program offer compensation to victims of drunk driving and domestic violence and to residents of the State who are victims of crimes occurring outside the State if the crimes would be compensable crimes had they occurred in the home State and the foreign State did not have its own compensation program. As noted, Congress also clarified that the program had to provide compensation to victims of any Federal crime occurring in the State on the same basis as it provided compensation to victims of State crime. See P.L. 100-690.

States were given until 1990, later extended to 1991, to conform their programs. In 1991, the Legislature enacted conforming legislation which, with some limitations, included those provisions. See 1991 Md. Laws, ch. 656. To comply with the Federal mandate, it repealed the existing definition of “crime” and rewrote § 2(c) to read as follows: “(1) Except as provided in paragraph (2) of this subsection, ‘crime’ means an act: ⁶⁰¹ (i) committed by any person in this State which is a criminal offense under State, federal, or common law; (ii) committed in another state against a resident of this State which is a criminal offense under State, federal, or common law’ (iii) of operating a motor vehicle in violation of § 21-902(a), (b), (c), or (d) of the Transportation article; or (iv) of operating a motor vehicle or vessel which results in injury which was intentionally inflicted.

(2) Except as provided in paragraph (l)(iii) and (iv) of this subsection, ‘crime’ does not include an act involving the operation of a vessel or motor vehicle.” Thus was the broad inclusion of State crime re-enacted, and, indeed, expanded to include injuries resulting from the operation of a motor vehicle in violation of the drunk driving law. The Bill Analysis prepared by the Department of Legislative Services made the point that “[cjurrently, a person may not recover under the Criminal Injuries Compensation Act for injury or death caused by an automobile unless the automobile is used intentionally to cause the injury or death.” (Emphasis added). That is repeated in the Floor Report of the Senate Judicial Proceedings Committee. In 1997, the definition of “crime” was amended to add a delinquent act committed by a juvenile and an act of international terrorism committed against a Maryland resident outside the United States.

See 1997 Md. Laws, chs. 811,312, and 46. In all three bills, the broad language “under State, federal, or common law” was re-enacted. Finally, in 2001, the Legislature added three more motor vehicle violations to the definition—those dealing with failing to stop and render assistance at an accident resulting in bodily injury and fleeing or eluding a police officer—and, in a general code revision bill, then transferred the entire statute to the Criminal Procedure Article. See 2001 Md. Laws, chs. 483 and 10.

The proviso thus remains an exception to an otherwise all-encompassing definition. For four reasons, we are persuaded that Opert’s view is more reflective of the likely legislative ⁶⁰² intent. The first is the gratuitous expansion of the universe of State crimes in 1985, which, as noted, was wholly unnecessary merely to conform the law to the new VOCA requirement and which put a very different gloss on the proviso. The second is the language of the proviso itself.

The Board’s construction would have a more solid foundation if the exclusion were framed in terms of injuries arising from the operation of a motor vehicle, rather than “an act” involving the operation of such a vehicle. We are more inclined to Opert’s view that, by hinging the exclusion on the “act,” the focus is necessarily on the manner in which the perpetrator operated a motor vehicle, rather than on the mere involvement of a vehicle in the infliction of injury. That view is supported by the