Pope v. Secretary of Personnel

Lowe, J., delivered the opinion of the Court. —the trend— The word "shall” has probably occupied the erudition of the Court of Appeals more than any other single term. In recent years the Court of Appeals has with increasing rigidity applied the principle of statutory construction that use of the word "shall” is presumed mandatory. Hirsch v. Dept. of Nat’l Resources, 288 Md. 95 (1980); In Re: James S., 286 Md. 702 (1980); State v. Hicks, 285 Md. 310 (1979); Johnson v. State, 282 Md. 314 (1978); United States Coin & Currency v. Dir., 279 Md. 185 (1977); Moss v. Director, 279 Md. 561 (1977); Bright v. Unsat. C. & J. Fund Bd., 275 Md. 165 (1975).

A practical qualifying pressure valve — "unless the context of the statute would indicate otherwise” — is invariably adhered to a recitation of that principle. See, e.g., Maryland St. Bar Ass’n v. Frank, 272 Md. 528, 533 (1974); Ginnavan v. Silverstone, 246 Md. 500, 505 (1967). While the context of fewer and fewer statutes "indicate otherwise,” one of the contextual factors relied upon, "though not controlling,” to hold the use of "shall” directory is when a statute provides no penalty for failure to act within a prescribed time. See Maryland St. Bar Ass’n v. Frank, supra at 533; but see In Re: James S., supra.

The case law provides very little in the nature of when or how to prognosticate where the exception should overcome the presumption. State v. Hicks , for example, acknowledged a statute governing the assignment of criminal cases for trial in which the term "shall” was held to be directory in Young v. State, 266 Md. 438 (1972), for the reason that the Legislature had not explicitly provided the extreme sanction of dismissal for administrative noncompliance. 285 Md. at 316 . By having enacted a rule using the identical language of the statute which also lacked explicit sanctions, the Court ⁷¹⁸ of Appeals decided in Hicks that in the context of its rule, "shall” was intended to be mandatory. Id. 1 There is, however, a thread of continuity in one line of cases perceived and commented upon by Judge Smith writing for the Court in In Re: James S., supra.

Since 1908, the Court of Appeals has stood firmly upon the premise that Art. IV, § 15 of the Maryland Constitution is directory only when it admonishes that the Court of Appeals "shall” file its opinions within three months of argument. McCall’s Ferry Co. v. Price, 108 Md. 96, 113 (1908). Similarly, a like provision for the circuit courts has been consistently interpreted as directory and not mandatory. Maryland St. Bar Ass’n v. Hirsch, 274 Md. 368, 374 (1975), cert. denied, 422 U.S. 1012 (1975); Davidson v. Katz, 254 Md. 69, 78 (1969); Pressley v. Warden, 242 Md. 405, 406-407 (1966); Myers v. State, 218 Md. 49, 51 (1958), cert. denied, 359 U.S. 945 (1959); Suttleman v. Bd. of Liq.

Lic. Com’rs., 209 Md. 134, 140 (1956); Snyder v. Cearfoss, 186 Md. 360 (1946). These cases were discussed by Judge Smith in Resetar v. State Bd. of Education, 284 Md. 537 (1979), while giving similar consideration to a county board of education mandate upon itself. "The Board shall. . . render a decision... within thirty (30) days. . . .” The thread apparent in each of these cases which continue to digress from the contemporary trend, is that the directory duty imposed is on the "arbiter of the controversy” as opposed to the adversary.

In Re: James S., supra at 708. Before addressing the facts in the case before us there is another noteworthy digression from the inflexibility of the presumption that "shall” is mandatory, which relates to the role of the Court of Appeals as overseer of the legal profession. In Maryland St. Bar Ass’n v. Frank, supra, the Court of Appeals was concerned with Md. Code, Art. 10, §§12 and 13, establishing maximum and minimum limits ⁷¹⁹ for prosecutorial hearing disbarment proceedings. Although the Court referred to the legislative failure to provide a penalty, it noted that: "Of more importance, it is clear that the broad policy of the law regulating conduct of attorneys authorized to practice law in this State is designed for the protection of the public, Maryland St. Bar Ass’n v. Agnew, 271 Md. 543, 549 , 318 A.2d 811 (1974), and that purpose would be largely vitiated if respondent’s restrictive interpretation were to prevail.” 272 Md. at 533 .

Notwithstanding the purposeful movement of the Court of Appeals toward holding the statutory use of "shall” as mandatory — despite the absence of a penalty provision — two instances thus will seemingly stem the tide: 1. When "shall” is used in an unsanctioned statute directed toward an arbiter’s time limitations for opining, and, 2. When the broad underlying policy of the law regulating conduct of an officer of the court is for the public protection. —the case— The case at bar involved the dismissal procedure of a tenured public employee. When the Maryland Commission on Human Relations filed charges against Gloria A. Pope on October 13, 1976, Md. Code, Art. 64A, § 33 2 provided that ⁷²⁰ a tenured State employee may be removed for cause only upon the filing of charges with the Secretary of Personnel by the appointing authority.

The Secretary was then given ninety days within which the case was to be heard, investigated and determined. Ms. Pope’s hearing was scheduled for December 9, 1976, but was postponed due to her illness. Subsequent hearings were set for February 2, 1977, March 7,1977, and August 2, 1977, but were postponed without objection due to scheduling conflicts of appellant’s attorney, who is a legislator, or the attorney for the agency. 3 Ms. Pope’s hearing was finally convened on February 14, 1977, 4 but was again postponed and was not resumed until April 28 and 29, 1977, after the 1977 legislative session. It concluded on August 19, 1977.

The Secretary of Personnel did