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Home , Compounding a felony, Criminal law

CLASS #1 FOR CRIMINAL CRIMINAL CLASSIFICATION, SOURCES OF , & CRIMINAL LAW INTERPRETATION Professor Byron L. Warnken -- University of Baltimore School of Law Copyright © 2011, 1980. All rights reserved.

SOURCES OF CRIMINAL LAW & CLASSIFICATION OF Sources of criminal law in Maryland Sources of federal criminal law crimes as of 07-04-1776 (adopted through Md. Decl. Rights), as amended No common law (except in D.C.) Enacted law (Md. Const., Md. Crim. Law Code Ann., Md. Crim. Proc. Code Ann., & Md. Rules) Enacted law (U.S. Const., U.S. Code, CFR’s, Fed. R. Crim. P., & ) (SCOTUS, COA, & CSA) State law as adopted by Assimilative Crimes Act Case law (SCOTUS, federal Cts. of App., & federal Dist. Cts.)

Classification of crimes in Maryland (mala in se (inherently wrong) & mala prohibita (legislatively determined to be wrong))

Felonies INTERPRETATION OF SUBSTANTIVE CRIMINAL LAW

Common law “MR/MRS LAMB” (except as abrogated by ) & creating felonies Common law & statutory crimes that are not felonies

INTERPRETATION OF CRIMINAL LAW Enacted law: Rules of statutory construction ( under Marbury v. Madison) Case law: Stare decisis (like cases should be decided in like manner) applied to -made case-by-case common law & to judicial Statutes Ambiguous statutes – need statutory construction to determine legislative intent, Void for interpretation of enacted law plain on aided by legislative history (reports, debates, & hearings) & purpose of statute vagueness their face – ( & preamble/introduction) statutes – no need for violate Due statutory Presumed Strict/narrow Reconciliation Comparison Special Process Clause Mandatory Authority Persuasive (non- construction aware of construction problems (no fair binding authority) (every day existing law Presumption warning/notice, Primary & Secondary words have that law is susceptible to Authority constitutional every day Implicit Strictly Same law Ejusdem arbitrary & (& severable, Holding/rationale in Non-binding cases in meaning) acceptance construe (perhaps generis vs. discriminatory if not) reported opinion from mandatory of case law statutes in multiple expressio enforcement, & binding (dicta, (reenactment derogation enactments unius, “chilling” effect Common interpreting common distinguishable law, or inaction) of common over time) exclusio on sense law or exact version of &/or distinguishable law alterius constitutional approach rights) enacted law w/ non- facts); cases in non- Implied Same bill Mandatory distinguishable facts binding jurisdictions; exceptions (perhaps vs. directory (SCOTUS, federal secondary authority multiple language (one of 12 Construe amendments federal circuits & one Express Strictly statutes as a leading to Disjunctive of 94 federal districts), rejection of construe whole enactment) vs. & state courts case law criminal conjunctive (intermediate appellate Special over (striking statutes (CSA) & state general (COA)) change of Singular vs. expression) Later over plural earlier 1-1 CRIMINAL LAW CLASSIFICATION, SOURCES OF CRIMINAL LAW, & INTERPRETATION OF CRIMINAL LAW I. Classification of crimes A. Criminal classification versus non-criminal classification: Any conduct (or failure to act when required to act) for which a criminal sanction is provided is criminal. B. classification versus classification. At common law, crimes were divided into three categories: , felonies, and misdemeanors. Hyman Ginsberg & Isidore Ginsberg, Maryland Criminal Law & Procedure 5 (1940). In Prout v. State, 311 Md. 348 (1988), the Court of Appeals stated that that “infamous crimes” include treason, felonies, and misdemeanors based on . 1. Felony offenses a. Common law felonies: Felonies at common law were typically offenses punishable by or subject to forfeiture of land or goods. Maryland Criminal Law & Procedure § 5, at 6. In Director of Finance Prince George‟s County v. Cole, 296 Md. 607 (1983), the Court of Appeals stated that, at common law, felonies and treason were punished by forfeiture of life and/or forfeiture of land. (1) MR. & MRS. LAMB: The common law felonies were , , , , , , , , and . Lewis Hochheimer, The Law of Crimes & § 4 (1904); In Fisher v. State, 367 Md. 218 (2001), the Court of Appeals stated that crimes that are dangerous to life are generally felonies. (2) Treason: Treason was in a category separate from felonies and was considered an “infamous .” The Law of Crimes & Criminal Procedure § 2. b. Typical modern approaches to felony classification (1) Place of incarceration: In some jurisdictions, felonies are offenses punishable by death or by incarceration in particular institutions, e.g., state penitentiary versus county jail. (2) Length of incarceration: In some jurisdictions, felonies are offenses punishable by death or by incarceration for a particular period, e.g., in excess of one year. c. Maryland felonies (Ginsburg & Ginsburg, supra at 6) (1) Common law felonies: In Fisher v. State, 367 Md. 218, 251 2001), the Court of Appeals identified the common law felonies. (2) Statutory offenses that provide that the offense is a felony:

1-2 In Fabian v. State, 3 Md. App. 270 (1968), the Court of Special Appeals held that, if a statutory crime is not declared a felony by the , the crime is a misdemeanor. 2. Misdemeanor offenses: In Maryland, all offenses that are not felonies are misdemeanors. In Fabian, 3 Md. App. 270, the Court of Special Appeals recognized that, at common law, minor crimes were not punishable forfeiture of life or forfeiture of goods. Accord Williams v. State, 4 Md. App. 342 (1968). 3. Significance of felony-misdemeanor distinction a. Within elements: Some offenses contain the felony-misdemeanor distinction within their elements. (1) Felony murder: Felony murder requires that the murder be committed during the perpetration of a felony. Evans v. State, 28 Md. App. 640 (1975), aff‟d, 297 Md. 178 (1976). A is guilty of felony murder only when the intent to commit a felony arises prior to, or concurrent with, the death of the victim. State v. Allen, 387 Md. 389 (2005). (2) Burglary: The mental state for common law burglary is the intent to commit a felony therein. Reed v. State, 316 Md. 521 (1989); Vandegrift v. State, 226 Md. 38 (1961). (3) Misprision of a felony: For misprision of a felony, the offense concealed must be a felony. This offense was abrogated in Maryland in Pope v. State, 284 Md. 309 (1979). (4) : An individual compounds a felony when that person receives some in return for an agreement not to prosecute or inform on someone who is known to have committed a felony. Wayne LaFave, Criminal Law § 13.6, at 753-61 (5th ed. 2010); Pope, 284 Md. 309. b. Subject matter jurisdiction (1) State in Maryland: District Court has exclusive jurisdiction over most misdemeanors. Md. Code Ann., Cts. & Jud. Proc. § 4-301. (2) State Circuit Court in Maryland: Circuit Court has exclusive jurisdiction over most felonies. Id. § 4-302. c. : The purpose of a statute of limitations is to prevent from having to defend against stale criminal charges. United States v. Marion, 404 U.S. 307 (1971); Toussie v. United States, 397 U.S. 112 (1970).

1-3 (1) Common law: There was no distinction between felonies and misdemeanors at common law, as to statute of limitations, because there was no statute of limitations. See Massey v. State, 320 Md. 605 (1990) (juxtaposing Maryland‟s statutes of limitations with common, which had no statute of limitations. See The Law of Crimes & Criminal Procedure at 78; 1 Chitty, A Practical Treatise On The Criminal Law 160 (1819). (2) Maryland (a) Felonies & most misdemeanors: For all felonies and for misdemeanors with a statutory penalty of potential confinement in the Division of Correction (DOC), there is no statute of limitations. See State v. Stowe, 376 Md. 436 (2003); Greco v. State, 65 Md. App. 56 (1985). (b) Some misdemeanors: For most misdemeanors with no statutory penalty of DOC confinement, there is a one-year statute of limitations. Md. Code Ann., Cts. & Jud. Proc. § 5-106(a). d. liability consequences (1) Felonies: For felonies, accomplice liability is divided into principals in the first degree, principals in the second degree, accessories before the fact, and accessories after the fact. of a in the first degree does not of a principal in the second degree for the crime. Owens v. State, 161 Md. App. 91 (2005). (2) Treason: In Agresti v. State, 2 Md. App. 278 (1967), the Court of Special Appeals stated that, for treason, all parties are principals. (3) Misdemeanors: For misdemeanors, all parties are principals, except accessories after the fact, for which there is no criminal liability. In State v. Hawkins 326 Md. 270 (1992), the Court of Appeals held that all participants in a misdemeanor are deemed to be principals. Accord Broadway v. State, 23 Md. App. 68 (1974). e. Effect on applicability of defenses (1) of : Defense of property requires an inherently dangerous felony to permit the use of deadly force. Sydnor v. State, 365 Md. 205 (2001); Ginsberg & Ginsberg, supra at 85-86.

1-4 (2) Crime prevention: At common law, misdemeanor warrantless required the crime to be committed in the officer‟s presence. There was no such limitation on felony warrantless arrests. See, e.g., Atwater v. City of Lago Vista, 532 U.S. 318 (2001). f. Sentencing consequences (1) Value of property: Classification of a crime against property as a felony or misdemeanor is usually based on the value of the property, even though the value of the property is not an element of the offense. For , the value of the goods or services differentiates felonies (maximum penalty of ten to 25 years) from misdemeanors (maximum penalty of 18 months). In 1979, the felony line was increased from $100 to $300. In 2000, the felony line was increased from $300 to $500. In 2010, the felony line was increased from $500 to $1,000. Md. Code Ann., Crim. Law §§ 7-104(g), 8-106. In 2004, a mini- misdemeanor was added with the value under $100 and a maximum penalty of 90 days. For bad check, the felony- misdemeanor line is $500, with the maximum penalties being 15 years and 18 months. Id. § 8-106. (2) Enhancement, recidivist, & statutes (a) Penalty more severe because of prior felony: The for the current offense may be enhanced or made mandatory based on prior felony conviction(s). See Md. Rule 4-245; v. United States, 129 S. Ct. 687 (2009) (enhancement based on being a felon in of a firearm); Nash v. State, 191 Md. App. 386, cert. denied 415 Md. 42 (2010) (possession of a handgun by a convicted felon). (b) Classification changed from misdemeanor to felony because of prior offenses: The current offense, which would otherwise be classified as a misdemeanor, may be classified as a felony because of prior felony and/or misdemeanor conviction(s). g. Criminal procedure consequences (1) Right to : The Sixth Amendment , made applicable to the states through the Due Process Clause of the Fourteenth Amendment, applies to all felonies, Gideon v. Wainwright, 372 U.S. 335 (1963), but it only applies to misdemeanors if there is potential incarceration. Alabama v. Shelton, 535 U.S. 654 (2002). (2) Grand : The Fifth Amendment requirement

1-5 of a indictment for federal felony prosecutions does not apply to federal misdemeanor prosecutions. Some states require, by or statute, a grand jury indictment for felony prosecutions, while permitting misdemeanors prosecutions by criminal information. Maryland does not require a grand jury indictment for either a felony or misdemeanor prosecution. Md. Rule 4-201(c). h. Evidentiary consequences: Some jurisdictions permit impeachment of credibility based on certain felony , but not based on certain misdemeanor convictions. In Maryland, a prior felony conviction for drug possession with intent to distribute is impeachable, State v. Woodland, 337 Md. 519 (1995), as is a misdemeanor handgun conviction. Holmes v. State, 63 Md. App. 159 (1985); see King v. State, 407 Md. 682 (2009) (impeachment with drug conviction if felony conviction). i. Collateral consequences (1) Employment (a) Hiring: Employment opportunities may be denied to those convicted of felonies but available to those convicted of misdemeanors. See State v. Denisyuk, 191 Md. App. 408 (2010) (discussing collateral consequences of felony convictions, particularly child sexual ). (b) Suspension: Employees may be suspended differently when charged with felonies versus misdemeanors. Md. Officers‟ Bill of Rights permits suspension “without pay” if the officer is charged with a felony, but only “with pay” if charged with a misdemeanor. Md. Code Ann., Pub. Safety § 3-112. (c) Termination: In some jurisdictions, employment may be terminated for conviction of certain felonies but not for conviction of a misdemeanor. (2) Licensing: Licensing procedures, e.g., purchasing and registering a handgun and/or obtaining a to practice law or medicine, may be influenced more negatively by a felony conviction that by a misdemeanor conviction. (3) Contractual rights: Contractual rights may be limited by a felony but not by a misdemeanor, e.g., life insurance policy that denies coverage if the insured dies while committing a felony. The right to enter into a may be limited by a felony conviction, e.g., government contractors.

1-6 (4) Right to vote: The right to vote may be denied to convicted felons but not to convicted misdemeanants. In Maryland, certain convicted individuals may be re-enfranchised if pardoned or completed the sentence, plus a three-year waiting period. Md. Code Ann., Elect. Law § 3-102. (5) Eligibility for elected office: The right to seek elected office may be denied to those convicted of felonies but not denied to those convicted of misdemeanors. Id. § 5-202 (candidate for public office must be a registered voter). (6) Jury service: An individual sentenced to more than six months, or who has pending federal or state charges subject to incarceration of more than six months, is ineligible for jury service. Md. Code Ann., Cts. & Jud. Proc. § 8-103(b)(4)-(5). C. Mala in se classification versus mala prohibita classification 1. Mala in se: Mala in se means that the illegal conduct that is inherently wrong or evil, which is usually considered to be common law offenses. LaFave § 1.6(b), at 38-40. In Schlossman v. State, 105 Md. App. 277 (1995), the Court of Special Appeals held that misdemeanor manslaughter applies when the underlying felony is mala in se, but not when the underlying felony is mala prohibita. A crime is mala in se when the conduct that is prohibited is inherently evil, or wrong in and of itself. 2. Mala prohibita: Mala prohibita means that the illegal is not inherently wrong, but which is wrong solely because the legislature makes it a crime. LaFave § 1.6(b); Schlossman, 105 Md. App. 277. D. Categories of offenses 1. Inchoate crimes: Inchoate crimes are offenses that are preparatory of other offenses, i.e., , , . 2. Crimes against property: Crimes against property are offenses in which the object of the offense is property, e.g., larceny, , , receiving stolen goods, theft, bad check, , uttering, by a fiduciary. 3. Crimes against habitation: Crimes against habitation are offenses in which the object of the offense is habitation, e.g., burglary, arson. 4. Crimes against persons: Crimes against persons are offenses in which the object of the offense is a person, , , reckless endangerment, robbery, carjacking, false , , , abuse of a vulnerable adult. 5. Weapons offenses: Weapons offenses (a) prohibit the possession, use, or transport of a dangerous weapon, firearm, or handgun, or (b) aggravate offenses when committed with a dangerous weapon, firearm, or handgun.

1-7 6. Sex offenses: Sex offenses are offenses that prohibit sexual misconduct, e.g., rape, sex offense by sexual act or sexual contact, sodomy, unnatural or perverted sexual practices, child , incest. These offenses are also crimes against persons. 7. offenses: Homicide offenses are offenses that prohibit killing a person, e.g., murder, manslaughter, or prohibit terminating a viable fetus. These offenses are also crimes against persons. II. Sources of criminal law A. Primary authority: Primary authority is “the law” and consists of case law and enacted law. 1. Case law: “Case law” is law made by federal and state and appellate (mostly appellate) . This occurs one case at a time, as courts apply the law to facts in an “actual case or controversy.” The term “common law” usually refers to the derived from England. Clark & Marshall, A Treatise of the Law of Crimes § 1.04, at 24-25 (7th ed. 1967). However, because most of the common law of England was case law, the term “common law” sometimes refers to case law, distinguishing case law from enacted law. 2. Enacted law: At its broadest, “enacted law” refers to , , statutes, ordinances, administrative , rules of court, and treaties. Most narrowly, enacted law refers to statutes enacted by Congress or by state . Unlike case law, which is made based on an actual case or controversy, enacted law is made in the abstract, even though a particular situation may have caused the enacted law to be created. a. Constitutions & charters: The “master document,” giving the federal government and state governments the power to exist, is referred to as “the Constitution.” Local governments only exist when state governments, through state constitutions or statutes, provide “home rule” for local governments. See Md. Const. art. XI-F. The “constitution” of a local government is referred to as a “.” Id. art. XI-A. b. Statutes & ordinances: Laws enacted by Congress or by state legislatures, e.g., the Maryland General Assembly, are called statutes or acts. These are published in un-codified versions, known as session laws, which are printed in the order enacted, without regard to topic, e.g., United States Statutes-at-Large, Laws of Maryland. However, statutes are usually accessed in codified versions, e.g., United State Code, typically accompanied by annotations of cases interpreting the code, e.g., U.S.C.A., Md. Ann. Code. Laws enacted by local legislative bodies, often called “councils,” e.g., Baltimore City Council, are referred to as ordinances. c. Administrative regulations: The branch of government,

1-8 in a “quasi-legislative” function, at the federal, state, and local levels, promulgates regulations, pursuant to authorization by the legislative branch to promulgate regulations to implement . See Benson v. State, 389 Md. 615 (2005). d. Rules of court: Courts promulgate rules to control the adversarial process. The Maryland Rules are promulgated by the Court of Appeals and have the same authority as statutes enacted by the Maryland General Assembly. Md. Const. art. IV, § 18(a). e. Treaties: Treaties are “international statutes” or between nations. Treaties are negotiated by the executive branch of the federal government and ratified by the United States Senate. U.S. Const. art. II, § 2. B. State criminal law 1. Maryland criminal law: Maryland criminal law exists as both common law offenses and statutory offenses. a. Substantive criminal law (1) Common law (a) English case law: Through Md. Decl. of Rights art. 5, Maryland adopted, as Maryland law, all English case law as of July 4, 1776. Maryland first adopted the common law of England when the Maryland General Assembly enacted the Act of 1639. There are no purely common law jurisdictions. Some jurisdictions, like Maryland, are a mixture of common law and enacted law, with the common law usually adopted through the state constitution or a “reception” statute that “receives” the common law. (b) English statutes: Md. Decl. of Rights art. 5 adopts, as Maryland law, those English statutes in effect on July 4, 1776, that “by experience have been found applicable and been used” in Maryland. (c) Amending Maryland’s common law: The common law, as contained in Md. Decl. of Rights art. 5, may be abrogated or amended. i. Amendment to Md. Const. - Md. Const. art. XIV ii. Enactment by the Maryland General Assembly - Md. Decl. of Rights art. 5 iii. Maryland Rule promulgated by the Court of Appeals - Md. Const. art. IV, § 18(a); see

1-9 State v. Robinson, 106 Md. App. 720 (1995) iv. Judicial abrogation of common law - Lewis v. State, 285 Md. 705 (1979) (requirement to have a convicted principal before outing an to trial); Pope, 284 Md. 309 (misprision of a felony). (2) Enacted law – Md. Ann. Code (a) Black code: Prior to October 1, 2002, virtually all Maryland criminal statutes were located in Md. Ann. Code art. 27 (1957, as amended). (b) Maroon code: Since October 1, 2002, virtually all Maryland criminal statutes are located in the two- volume Md. Code Ann., Crim. Law, which is also referred to as the Criminal Law article. b. Criminal procedure (1) Constitutions: Some criminal procedure is covered by the Bill of Rights of United States Constitution (Second, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments) and by the Md. Decl. of Rights. (2) Rules of court: Some criminal procedure is covered by the Maryland Rules, promulgated by the Court of Appeals and mostly contained in title 4, i.e., Md. Rule 4-101 et seq. (3) Statutes: Since October 1, 2001, some criminal procedure is located in Md. Code Ann., Crim. Pro., which is also referred to as the Criminal Procedure article. C. Federal criminal law 1. Substantive criminal law a. Common law: There is no federal common law, except in the District of Columbia, which, although it is a “federal” jurisdiction, is essentially like a state. LaFave § 2.1(c), at 80-81. b. Enacted law: The federal is located in 18 U.S.C. (2006 edition), which includes laws in effect as of January 3, 2007, plus annual cumulative supplements. The unofficial code is located at 18 U.S.C.A. or 18 U.S.C.S., which are updated through 2011. c. Assimilative Crimes Act: Federal law applies in federal enclaves located in states, e.g., installations, federal buildings, national parks and forests. When there is a “gap” in federal criminal law, resulting because Congress has not enacted a statute to prohibit certain conduct, federal law is found in the Assimilative Crimes Act, 18 U.S.C. § 13, which adopts, as federal criminal law, the criminal

1-10 law (common law and enacted law) of the state in which the is located. Lewis v. United States, 523 U.S. 155 (1998); United States v. Sharpnack, 355 U.S. 286 (1957); Williams v. United States, 327 U.S. 711 (1946). 2. Criminal procedure a. Constitutions: Some federal criminal procedure is contained in the Bill of Rights of the United States Constitution, i.e., Second, Fourth, Fifth, Sixth, and Eighth Amendments. b. Rules of court: Some federal criminal procedure is contained in the Federal Rules of Criminal Procedure. 1. Statutes: A small amount of federal criminal procedure is located in 18 U.S.C. III. Interpretation of criminal law at common law & in case law A. Judicial decision making: Case law is made by judges, one case at a time, in the context of an “actual case or controversy.” Case law is primary authority. It is “the law.” 1. Common law: Through Md. Decl. of Rights art. 5, Maryland adopted the most of England‟s laws, as of July 4, 1776, including all case law and most enacted law. That body of law is Maryland‟s “common law” unless that law is amended by the Maryland General Assembly. If, in a given area of the law, the Maryland General Assembly has not “spoken,” the Court of Appeals may create, abrogate, or amend Maryland‟s common law. If the Maryland General Assembly has “spoken,” and made the law in a particular area, that is “the law,” and, under the doctrine, the Court of Appeals cannot “make” the law. In either event, under the authority of Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), the Court of Appeals, also under separation of powers, interprets the law and applies the law. 2. Enacted law: Since Maryland inherited the common law of England, as of July 4, 1776, the Maryland General Assembly has “spoken” in most – but not in all – areas. As such, under the separation of powers doctrine, the lacks the power to create the law and may only interpret and apply the law. B. Stare decisis: Under stare decisis, “like cases should be decided in like manner.” Judges look to previous cases to determine whether there is authority or “” that controls the current case. 1. Mandatory case law: A case is mandatory and binding under certain circumstance. a. Binding jurisdiction: To be mandatory, the jurisdiction that decided the case must be a jurisdiction that binds the present jurisdiction. (1) Supreme Court of the United States (2) Federal Circuit Courts: If a case is in a federal ,

1-11 e.g., United States District Court for the District of Maryland, the court is bound by the federal Circuit Court in which that District Court is located. For example, the United States Court of Appeals for the Fourth Circuit binds the United States District Court for the District of Maryland. The Fourth Circuit only binds the District Courts in the five states within the Fourth Circuit and binds no other District Courts. The United States District Court for the District of Maryland is bound by the Fourth Circuit but is not bound by any other Circuit Court. There are 94 federal District Courts in 12 federal circuits, i.e., First Circuit through Eleventh Circuit, plus the District of Columbia Circuit (there is also the Federal Circuit for specific types of cases). State courts are not bound by federal Circuit Courts. In Malinow v. Eberly, 322 F .Supp. 594 (D. Md. 1971), the United States District Court for the District of Maryland stated that, as to a federal constitutional question, the Court must follow the holdings of the Supreme Court, and if the Supreme Court has not spoken, the holdings of the Fourth Circuit. In Green v. Pope & Talbott, Inc., 328 F Supp. 71 (D. Md. 1971), the United States District Court held that the holdings of the Fourth Circuit are binding on that court. (3) State courts: In a state court system, trial courts are bound by appellate courts in that state, and appellate courts are bound by higher appellate courts in that state. Most states have an intermediate appellate court, typically called the Court of Appeals, and a court of last resort, typically called the Supreme Court. In Maryland, trial courts (District Court and Circuit Court) are bound by the state intermediate appellate court, i.e., Court of Special Appeals, and are bound by the state court of last resort, i.e., the Court of Appeals. The Court of Special Appeals is also bound by the Court of Appeals. On issues of federal law, including the United States Constitution, Maryland courts are only bound by the Supreme Court of the United States and are not bound by lower federal courts, i.e., United States District Courts or United States Circuit Courts of Appeal, although those decisions may be persuasive. In Gayety Books, Inc. v. Baltimore, 279 Md. 206 (1977), the Court of Appeals held that Maryland courts may consider opinions of the federal trial and appellate courts, but are not bound by them, even as to questions of federal law. Accord Pope v. State, 284 Md. 309 (1979),. (4) Same court: If the court has a prior published opinion

1-12 binding the present case, the court must apply, overrule, or distinguish its prior case. In Payne v. Tennessee, 501 U.S. 808 (1991), overruling its decision of two years earlier, the Supreme Court of the United States stated that, although stare decisis is preferred, because it promotes an evenhanded application of the law, if the controlling decisions are unworkable or badly reasoned, the Supreme Court is not constrained to follow precedent and will overrule prior case law. b. Reported opinions: In some jurisdictions, to be mandatory, the appellate opinion (“the case”) must be reported, meaning it must be published. This “published” versus “unpublished” approach reflects a time when only reported opinions were readily accessible. In some jurisdictions, including Maryland, appellate decisions have no precedential value if they are not published. Md. Rule 8-114. The Supreme Court of the United States and state Supreme Courts hear cases en banc, meaning all judges hear the case, and they publish almost all opinions. Intermediate federal appellate courts and intermediate state appellate courts hear cases in three-judge panels and publish less than 20% of their opinions, with more than 80% of their opinions resolving that case but not adding to “the body of the law” of that jurisdiction. In addition, there is no binding effect of trial court decisions, referred to as nisi prius courts. c. Holding & rationale versus dicta: To be mandatory, the law must come from the holding and rationale of the case and not merely from dicta within the opinion, which is nothing more than “an aside.” If a court, in its majority opinion, is addressing an issue needed for resolution of that case and is applying the controlling law to the legally significant facts, the “bottom line” of the application of that law to those facts is the court‟s holding, and the explanation necessary to reach that holding is the court‟s rationale. The court‟s holding and rationale are binding, but anything else that the court states in its majority opinion is non-binding dictum or dicta. In Office of the v. State, 413 Md. 411 (2010), the Court of Appeals defined dicta as a judicial comment made in an opinion that is unnecessary to the decision in that case. See, e.g., State v. Baby, 404 Md. 220 (2008). Likewise, everything stated in a concurring opinion or dissenting opinions is non-binding, is not the law of the case, and is not precedent. See Christian & Stevenson v. State, 405 Md. 306 (2008); State v. Wilson, 106 Md. App. 24, cert. denied, 340 Md. 502 (1995), rev‟d on other grounds, 519 U.S. 408 (1997). d. Non-distinguishable : To be mandatory, the case must be non-distinguishable as to the applicable rule of law. Thus, the law

1-13 being applied must be the same law or, if different, so sufficiently similar that any difference in the two laws has no legal significance to the court‟s holding. The difference in the law may result from the same law, but having been amended since an earlier case, that applied it, was decided. e. Non-distinguishable facts: To be mandatory, the case must be non- distinguishable as to the facts. Thus, the operative, key, or legally significant facts must be analogous, with no legally significant difference between the facts in the case precedence and the facts in the present case. 2. Mandatory enacted law: There may be a statute that controls the present case, but that statute has no judicial gloss, meaning that the statute has not yet be interpreted and applied in a reported opinion. In that event, because there is no case law to mandate or to persuade, it is necessary to apply the principles of statutory construction. 3. Persuasive authority: Only cases that satisfy the five criteria listed above are primary mandatory authority. If there is primary mandatory authority, such authority will resolve the present case. However, if there is no primary mandatory authority, the court looks to persuasive authority. Persuasive authority includes primary non-mandatory authority, meaning case law that is missing one or more of the five criteria listed above. Persuasive authority also includes secondary authority, i.e., not primary authority. a. Persuasive primary authority: Persuasive primary authority is non- binding case law and non-binding enacted law. (1) Non-binding American case law: Cases lacking one or more of the five mandatory authority criteria are persuasive primary authority. (2) Non-American case law: Persuasive primary authority includes English case law (both pre-reception and post- reception) and case law from other common law countries, e.g., Canada, Australia b. Persuasive secondary authority: Case law and enacted law are primary authority, and they are “the law.” Secondary authority is anything else, and it is not “the law.” Secondary authority consists primarily of tools for finding and/or tools for understanding the law. (1) Pre-reception English authors, e.g., Blackstone, Coke, Hale, Hawkins (2) Opinions of attorneys general (3) Treatises & hornbooks, e.g., LaFave, Perkins & Boyce, Clark & Marshall, Hochheimer, Ginsburg & Ginsburg

1-14 (4) Criminal pattern jury instruction texts (5) Law review articles & other legal periodicals IV. Interpretation of enacted law: To understand the meaning and applicability of enacted law, apply the rules of statutory construction and principle of stare decisis. Although this is referred to as statutory construction or , because it is most frequently used to interpret statutes and ordinances, this general process is also used to interpret constitutions and charters, administrative regulations, rules of court, and treaties. See Norman J. Singer, Sutherland on Statutes and Statutory Construction (7th ed. 2007); West Key Number System Statutes key #174-361. A. Source & purpose of rules of statutory construction: Since 1803, as part of the task of judicial review, pursuant to Marbury v. Madison, 5 U.S. 137, under separation of powers and the Supremacy Clause of the United States Constitution, courts have formulated principles of statutory construction to assist judges in interpreting what the framers, drafters, and promulgators intended. In Price v. State, 378 Md. 378 (2003), the Court of Appeals stated that the main goal in statutory interpretation is to discover what the legislature intended in enacting a given statute. 1. Common law rules of statutory construction: Most principles of statutory construction have been judicially created. 2. Statutory rules of statutory construction: Legislatures have created principles of statutory construction. a. Maryland - Md. Ann. Code art. 1, §§ 1-27 b. Uniform Statutory Construction Act - USCA B. Applicability of rules of statutory construction: Deciding whether the rules of statutory construction apply requires distinguishing among (a) statutes that are plain on their face and need no interpretation, (b) statutes that are ambiguous and need statutory construction because reasonable minds could differ as to their meaning, and (c) statutes that are so ambiguous as to be constitutionally void for vagueness. From “plain on its face” to “ambiguous” to “void for vagueness” is an issue of degree. 1. Statutes that are plain on their face: A statute that is plain on its face contains no ambiguity and needs no statutory construction because there is only one possible meaning. Montgomery County v. Buckman, 333 Md. 516 (1994); USCA § 2. a. Determining authority: Under the principle of judicial review, courts decide what the law is. A statute means only what it means in light of its judicial interpretation, which is sometimes called its “judicial gloss.” A court decides if a statute is a plain on its face. Thus, statutory construction is required to determine if there is a need for statutory construction b. Determining whether a statute is plain on its face: The process of determining whether a statute is plain on its face begins with the

1-15 language of the statute. (1) Start with the language of the statute: In Walzer v. Osborne, 395 Md. 563 (2006), the Court of Appeals held that, because the court must first look to the plain language of the statute, giving the statute its natural and ordinary meaning. (2) Everyday language: Apply everyday meaning and usage to everyday words, phrases, and grammar. Use common sense and non-legal dictionaries. Kilmon v. State, 394 Md. 168 (2006); LaFave § 2.2(d), at 92-94. A court may take of the everyday meaning and usage of everyday words and phrases. (3) Terms of art: Apply a legal or technical meaning to legal or technical words and phrases, including terms of art, i.e., terms that have a special meaning in the law. USCA § 15(4); Health Services Cost Review Commission v. Holy Cross Hospital, Inc., 290 Md. 508 (1981). (a) Common law terms of art: Apply the common law meaning and stare decisis to common law terms of art, e.g., burglary. (b) Statutory definitions: Apply statutory definitions, their judicial gloss, and the principle of stare decisis. See McKenzie v. State, 407 Md. 120 (2008). 2. Statutes that are ambiguous: Because the English language is such an imperfect medium for communication, statutes often have an ambiguity and need statutory construction or interpretation to resolve the ambiguity and to determine which of multiple potential meanings is the one intended by the drafters. In Deville v. State, 383 Md. 217 (2004), the Court of Appeals stated that ambiguous or equivocal statutory language requires an interpreting court to consider the ordinary meaning of the words used, in the context of the overall meaning, setting, and purpose of the statute. 3. Statutes that are void for vagueness: If a statute is too ambiguous to determine its meaning, without speculating, the statute is unconstitutionally void for vagueness. Ashton v. Brown, 339 Md. 70 (1995). a. Constitutional requirement (1) United States Constitution (a) Applied against the federal government: The Due Process Clause of the Fifth Amendment applies against the federal government. (b) Applied against state governments: The Due Process Clause of the Fourteenth Amendment applies

1-16 against state governments. (2) Maryland Constitution - Md. Decl. of Rights art. 24. b. Constitutional standard: A statute must provide fair warning and notice, must not be susceptible to arbitrary and discriminatory enforcement, and must not create a “” on the exercise of constitutional rights. (1) Fair warning & notice: The statute must provide fair warning and notice by conveying a reasonably definite meaning to eliminate the need to speculate as to the persons subjected to the statute, the conduct proscribed by the statute, and/or the imposed. See Galloway v. State, 365 Md. 599 (2001); Bowers v. State, 283 Md. 115 (1978). Analyze the statute as applied, meaning in terms of the facts of the case. The standard for determining whether a statute provides fair notice is whether persons of common intelligence must necessarily guess at the statute‟s meaning. (a) Judicial gloss: Evaluate the statute in terms of its judicial gloss because statutes only mean what mandatory jurisdictions hold that they mean. See Stewart v. State, 275 Md. 258 (1975). (b) Distinguish void for vagueness statutes from ambiguous statutes: Because the English language is an inexact medium for communication, statutes do not have to eliminate, either on their face or through their judicial gloss, all ambiguities in order to be constitutional. The issue is whether the statute is merely ambiguous, needing the tools of statutory construction to resolve the ambiguities, or whether the statute is so ambiguous that the intent of the drafters cannot be determined, even with the tools of statutory construction. In Todd v. State, 161 Md. App 332 (2005), the Court of Special Appeals held that a statute is void for vagueness if it can be interpreted in an irrational manner and can be enforced selectively. (c) Specific intent: Statutes are usually held not to be void for vagueness if they contain a requirement of a specific intent or if the requirement of a specific intent is “found” through judicial gloss, e.g., “It shall be unlawful to carry burglar tools with the intent to commit burglary” is more likely constitutional than is “It shall be unlawful to carry burglar tools.” See Williams v. State, 329 Md. 1 (1992).

1-17 (d) Who needs warning: Statutes need only warn those to whom the statute potentially applies. For example, statutes aimed at a particular regulatory process need only warn those who have taken such steps as to place themselves within the control of that regulatory scheme. In Galloway v. State, 365 Md. 599 (2001), the Court of Appeals stated that the statute should provide warning to potential offenders and adequate guidelines to enforcement authorities. (2) Susceptible to arbitrary & discriminatory enforcement: Statutes must provide standards that are sufficiently definite to prevent unnecessarily broad discretion exercised by , , and judges, particularly when giving instructions to . Analyze the statute as applied, meaning in terms of the facts of the case. If the statute does not provide fair warning and notice to the Defendant, it does not provide fair warning and notice to anyone else either, including the police. See Finucan v. Maryland Board of Physician Quality Assurance, 380 Md. 577 (2004). (3) “Chilling” effect on the exercise of constitutional rights: A “chilling effect” means that the language of a statute is so ambiguous that people are afraid to exercise their constitutional rights, because they do not know, and cannot figure out, where the “line” is. The rights “chilled” are usually First Amendment rights of freedom of speech, association, and assembly, or the First Amendment right of privacy. See Galloway, 365 Md. 599. (a) “Breathing space”: If the statute lacks fair warning and notice, the Defendant, not knowing where the line of criminality is, may be extra cautious and not exercise all constitutional rights. Such statute does not provide sufficient “breathing space” for constitutionally protected activity. Bowers, 283 Md. 115. (b) Standing: Defendants have standing to assert the chilling effect or breathing space argument, even if conceding that their conduct could be regulated by a more narrowly drawn statute. In Galloway, 365 Md. 99, the Court of Appeals held that a Defendant may challenge the validity of a statute, even though the state, as applied to the Defendant, is constitutional. In Ayers v. State, 335 Md. 602, 624-25 (1994), the Court of Appeals held that the Defendant may not challenge

1-18 the validity of a statute on its face if the Defendant was not convicted under that statute. When conducting a “chilling effect” analysis, the court must analyze the statute on its face, without regard to the facts of the case. Galloway, 365 Md. 599; c. Example: “It shall be a misdemeanor for youth to hang out on street corners during school hours.” There is a possible fair warning and notice problem and enforcement problem as to “youth,” “hang out,” “street corners,” and “school hours.” There is a possible chilling effect as to the freedoms of speech, assembly, and association. C. Principles of statutory construction 1. Legislative intent: The goal in statutory construction is to accomplish the intent of the legislature as a collective entity. Stoddard v. State, 395 Md. 653 (2006). This is almost always a because there is rarely a collective intent of the legislature, because not everyone who voted for the bill did so for the same reason or with the same understanding. a. Legislative history: Legislative history is the written record of the process of starting with a problem, or simply starting with an idea even with no problem, and concluding with an enacted statute. See USCA § 15(3). In District of Columbia v. Heller, 554 U.S. 570 (2008)., the Supreme Court stated that legislative history is pre- enactment statements of those who drafted or voted for a law. The legislators who heard or read those statements presumably voted with that understanding. (1) Federal legislation: Congress almost always publishes legislative history. The following sources of legislative history are listed from most persuasive to least persuasive. (a) Reports: The congressional committee to which a bill is referred usually prepares a report to accompany the bill. If one or more members of the committee disagree with the report, they may prepare a minority report. Committee Reports represent the most persuasive indicia of congressional intent in enacting a statute. “Absent contrary legislative history, a clear statement in the principal committee report is powerful of legislative purpose and may be given effect even if it is imperfectly expressed in statutory language.” Sutherland Statutory Construction § 48:6 (7th ed.). i. Joint House-Senate conference committee reports: A joint House-Senate Conference Committee report represents both houses of

1-19 Congress, represents the largest number of individual votes, and usually represents the version of the bill actually enacted. In Adams v. Dole, 927 F.2d 771, 778 (4th Cir. 1991), the Fourth Circuit stated: “A conference report, being a joint statement by the House and Senate managers of a bill, is generally more elucidating on Congressional intent because it represents the last explanation of the statutory terms agreed upon.” ii. House or Senate committee reports: A House or Senate Committee Report represents only one house of Congress, represents fewer individual votes, and may not represent the version of the bill actually enacted. In evaluating conflicting legislative history of a statute in the House and in the Senate, the history in the body in which the statute originated is more persuasive. See Steiner v. Mitchell, 350 U.S. 247 (1956). (b) Debates & comments in the House or the Senate: Debates and comments usually take place when a bill or amendment is introduced, reported out of committee, discussed, and/or voted on. These statements may represent the views of only one member of Congress, which may be more persuasive if that person is the author of the legislation, the author of a significant amendment, the chair (or at least a member) of the committee reporting on the bill. Where there is no committee report accompanying the enactment of a statute, courts looks to the statements made by the sponsors of the legislation on the floor of Congress for an expression of legislative intent. Sutherland, supra. (c) Hearings: Hearings are conducted to receive comments on proposed legislation or to determine whether to enact the proposed legislation, either as proposed or as amended. i. Committee members: Statements made by, or questions posed by, a committee member during hearings may represent the views of only one committee member and may be more persuasive if that person is the author of the legislation, the author of a significant

1-20 amendment, the chair (or at least a member) of the committee to which the bill is assigned. ii. : The of a before a committee that is conducting a hearing on a proposed legislation represents the views of an individual who is neither drafting, nor voting on, the legislation, and the testimony usually represents the views of one side. (2) State legislatures: The quality of legislative history varies greatly among the states. State legislative history has improved dramatically in the last three decades. State legislative history includes commentary, commission reports, committee reports, etc. It also includes informal notes and statements of legislators or their staff. The Maryland General Assembly Department of Legislative Reference has legislative history files for bills since 1975. Most files may also be obtained from the Law Library at the University of Baltimore School of Law. If a state statute is invalid because it conflicts with a preemptive federal statute, the state statute remains enacted, but is unenforceable. Subsequent repeal of the federal statute revives the state law without express re- enactment by the state legislature. Home Utilities Co. v. Revere Copper & Brass, Inc., 209 Md. 610, 619 (1956). (3) Local legislatures: Legislative history is rarely published at the local level. b. General purpose of statute: Usually, there is a specific evil sought to be remedied by legislation. USCA § 15(1). (1) Title: The title of the statute may indicate its purpose. See Beka Industries, Inc. v. Worscester County Board of Education, 419 Md. 194 (2011); Walzer v. Osborne, 395 Md. 563, 573 (2006)); LaFave, supra § 2.2(f), at 99-100. However, the title of code sections, if prepared by codifiers and not by the legislature, may not provide good insight into the legislative purpose. Federal statutes have named titles, e.g., Omnibus Crime Control & Safe Streets Act of 1968, Clear Water Act of 1970, but Maryland statutes do not, e.g., 2010 Md. Laws ch. 1. In Montgomery County v. Eli, 20 Md. App. 269, cert. denied, 271 Md. 735 (1974), the Court of Special Appeals held that captions or headlines in the Maryland Code are intended as catchwords to indicate the contents, and are not the “title” of the law, unless the title was established by the legislature itself. (2) Preamble or introduction: A preamble or introduction is

1-21 not part of a statute and has no substantive legal force. A preamble or introduction is usually found only in the text of the statute, but is usually not in the codified version of the statute. Nonetheless, a preamble or introduction to a statute may set forth the purpose, reason, or explanation for a statute and may be a helpful piece of legislative history. See Neal v. State, 45 Md. App. 549, 552 (1980); Eli, 20 Md. App. 269; USCA § 15(7). Thus, a non-codified preamble or introduction is usually not part of the law, but it is a tool of statutory construction. (3) Circumstances when enacted: Consider the circumstances in society and the political climate when the statute was enacted. See USCA § 15(2)); State v. Broadwater, 317 Md. 342 (1989) (trend toward re-enfranchising convicted felons); Jones v. State, 304 Md. 216 (1985). c. Presumption of legislative awareness of existing law: Legislators are deemed to know all of the law existing when they enact a statute, including the common law, enacted law, and the judicial gloss on enacted law. See Burch v. United Cable Television of Baltimore Ltd. Partnership, 391 Md. 687 (2006); Board of Education v. Lendo, 296 Md. 55, 62-63 (1982). (1) Implicit acceptance through re-enactment: If the legislature re-enacts legislation, unaffected in pertinent part, after an appellate opinion, particularly when decided by the court of last resort, has construed the statute, the legislature is deemed to have intended the interpretation provided by the court. In Stouffer v. Holbrook, 417 Md. 165 (2010), the Court of Appeals stated that the legislative history to a 2002 amendment indicated that the amendment should be construed consistent with the Court of Appeals holding in a 2000 case. In Pye v. State, 397 Md. 626 (2007), the Court of Appeals stated that the legislature, when re-codifying a weapons statute, without inserting a provision for multiple sentences, was presumed aware of Frazer v. State, 318 Md. 597 (1990), which held that handgun possession and possession of firearm by a convicted person do not merge. Thus, Frazier remained viable after the re-. See Williams v. State, 292 Md. 201 (1981). (2) Implicit acceptance through inaction: Legislative silence, following judicial gloss, may be deemed to be legislative acquiescence and ratification of the court‟s interpretation. See Forbes v. State, 324 Md. 335 (1991); Jones v. State, 307 Md. 449 (1986). In re Wallace W., 333 Md. 186, 198 (1993), the Court of Appeals stated that legislative acquiescence,

1-22 following judicial interpretation of a statute by the Court of Special Appeals might be less indicative of legislative intent than the legislature‟s acquiescence to an interpretation by the Court of Appeals. (3) Express rejection: Legislative response (particularly a quick response in the next legislative session) that results in a change in the language (particularly a striking change of expression), following judicial gloss, usually indicates that the legislature disagreed with the court‟s interpretation. See, e.g., Williams v. State, 375 Md. 404 (2003). d. Separation of powers: Courts cannot, under the separation of powers, “draft” enacted law under the guise of judicial interpretation. It is sometimes arguable whether courts are merely interpreting what is before the court or whether the court is making new law under the guise of interpretation. See Department of Transportation v. Armacost, 311 Md. 64 (1987); Attorney Grievance Commission v. Waldron, 289 Md. 683 (1981). 2. Strict or narrow statutory construction a. Statutes in derogation of the common law: Statutes that are contrary to, or in derogation of, the common law, are construed most favorably toward preserving the common law. Although legislatures may expressly abrogate the common law, in the absence of clear legislative intent, courts strongly disfavor implying repeal of the common law. Wright v. State, 24 Md. App. 309, 318 (1975); Hickman v. State, 193 Md. App. 238 (2010). In Robinson v. State, 353 Md. 683 (1998), the Court of Appeals held that the 1996 assault statute abrogated all existing common law and statutory assault in Maryland. Nonetheless, the statute incorporated the definition of common law assault and battery into the 1996 assault statute. b. Criminal statutes: Criminal statutes are construed most favorably to the Defendant because a court will not punish conduct unless the legislature clearly intended it to be criminal. Ishola v. State, 404 Md. 155 (2008). In Boffen v. State, 372 Md. 742 (2003), the Court of Appeals held that, if the legislature intended to include a courtroom within its definition of “place of confinement,” it would have so included. In Hackley v. State, 161 Md. App. 1 (2005), the Court of Special Appeals interpreted the crime of stalking to require that the Defendant‟s conduct included at least “approaching or pursuing” the victim with intent to place the victim in fear of serious bodily harm. In Herd v. State, 125 Md. App. 77 (1999), the Court of Special Appeals interpreted fourth degree burglary, of the breaking and entry variety, not to be , even though the statute lacked a . Instead, the Court held that the statute required the general intent

1-23 mens rea of being on the premises without authorization or permission. See Whack v. State, 338 Md. 665, 683 (1995). c. Exception: There is an exception to the strict construction rule if the legislation contains a provision that expressly provides for a liberal construction. Md. Code Ann., Crim. Law § 5-102(b)(2), provides that drug laws should be interpreted broadly to effectuate control of illicit drugs. 3. Constitutional questions a. Presumption of constitutionality of enacted law & construe statutes to avoid constitutional questions: Legislatures would not intentionally enact an unconstitutional statute. Thus, there is a presumption of constitutionality. If a statute is susceptible to two interpretations, and one interpretation would render some or all of the statute unconstitutional, or would even raise a constitutional question, under statutory construction, courts use the interpretation that permits avoidance of the constitutional question. Thus, a statute is interpreted as constitutional if any reasonable interpretation would render the statute constitutional. State v. Smith, 374 Md. 527, 564 (2003); Curran v. Price, 334 Md. 149 (1994); Schochet v. State, 320 Md. 714 (1990); Brown v. State, 171 Md. App. 489 (2006). b. Severability if the presumption of constitutionality fails: Severability is an issue if the presumption of constitutionality fails, and the statute is unconstitutional in part. (1) Severability statute or clause: If there is (a) a general severability statute, or (b) a severability clause in the statute at issue, courts sever the unconstitutional portion of the partially unconstitutional statute and preserve the remaining constitutional portion of the statute, if that fulfills the legislative intent. USCA § 16. (2) Maryland: In Maryland, for statutes enacted after July 1, 1973, there is a general severability statute, making all statutes severable unless (a) the statute specifically provides that it is not severable, (b) the statuet, as severed, is inconsistent with the legislative intent. Md. Ann. Code art. 1, § 23. (3) Some statutes severable & some statutes not severable: If there is no general severability statute, but there is a severability clause in some statues, but not others, there is a presumption of severability if the statute at issue has a severability clause and a presumption of non-severability if the statute at issue has no severability clause. (4) Exceptions to severability

1-24 (a) Express non-severability: A statute is not severable if the statute provides that its portions are not severable. (b) Split of authority on severability: If there is no general severability statute and no severability clause in the statute at issue, there is a split of authority as to whether there is a presumption of severability or a presumption of non-severability. (c) Implicit non-severability: i. If severed, the statute cannot effectuate the legislative intent: A statute is implicitly non- severable if, with severance, the remaining portions of the statute cannot effectuate the legislative intent. ii. If court finds that exception to statutory coverage is unconstitutional: In Davis v. State, 294 Md. 370 (1982), a statute prohibited school officials from admitting pupils who had not been immunized, except for pupils whose parents were members of, or adherent to, a recognized church or religious denomination that opposed immunization. The Court of Appeals held that the statute violated the Establishment Clause of the First Amendment. The Court held that, although the statute appeared severable, by severing the unconstitutional portion of statute and implementing the of the statute and its implementing regulations, the court did not sever the statute, and struck down the entire statute, because the Court would not presume that the legislature would have enacted the without the exception, and thus would not have extended the prohibition to a class of persons that the legislature expressly excluded. See State v. Schuller, 280 Md. 305 (1977). 4. Common sense approach: If the letter and the spirit of a statute are in conflict, courts use a common sense approach to avoid an illogical, absurd, or unworkable result. In Gorge v. State, 386 Md. 600 (2005), the Court of Appeals stated that it would use the most reasonable interpretation that was consistent with the legislative intent, with logic, and with common sense, avoiding an absurd construction. Accord Greco v. State, 347 Md. 423, 429

1-25 (1997); State v. Fabritz, 276 Md. 416, 421-22 (1975); USCA §§ 13(3), 13(4), & 15(5). 5. Implied exceptions: Courts may “read into” a statute an exception that the legislature must have meant, and would have included in the statute, had the legislature addressed the issue. Implied exceptions prevent undue harshness, e.g., pursing fleeing felon may be deemed not covered by a speeding ordinance. See Pierson v. Director of Patuxent Institution, 235 Md. 654 (1964) (implied exception to the rule against ). However, in Orndoff & Spaid, Inc. v. Department of Licensing & , 32 Md. App. 155 (1976), the Court of Special Appeals held that a court may not supply omissions in a statute, remedy defects in a statute, or insert exceptions in a statute or administrative regulation. 6. Construe a statute as a whole: No statute should be construed in such a manner as to render superfluous or nugatory any word, phrase, clause, or sentence. In Gillespie v. State, 370 Md. 219, 222 (2002), the Court of Appeals stated that the Court would neither add nor delete words to an unambiguous statute. USCA § 13(2). 7. Statutes in pari materia: Multiple statutes should be read and construed together to give effect to all statutes, if possible, particularly if the statutes are in pari materia, i.e., addressing the same subject matter. To the extent possible, full effect is given to each statute. See Gardner v. State, 344 Md. 642, 649-50 (1997); USCA §§ 17 & 23. 8. Special statutes control over general statutes: If there is conflict among two statutes, special statutes control over general statutes. When there is such a conflict, the specific statute is deemed to have repealed the inconsistent general statute, unless part of the general statute does not create the conflict. See State v. Ghajari, 346 Md. 101, 116 (1997). In State v. Gibson, 4 Md. App. 236 (1968), the Court of Special Appeals held that the motor vehicle manslaughter statute is a special statute that controls over the general manslaughter statute. See USCA § 17. 9. Later statutes control over earlier statutes: If there is conflict among two statutes, the later-enacted statute controls over the earlier-enacted statute, because the legislature is deemed to know all existing laws. See State v. Harris, 327 Md. 32, 39 (1992). If two conflicting statutes are signed by the Governor on the same day, the latter act in numerical sequence is the last expression of the legislative, repealing or narrowing the earlier signed law. Id. at 37. See USCA §§ 17, 18, & 23. 10. Reconciling conflicts among rules of reconciliation: When the rule of “special over general” and the rule of “later over earlier” are in conflict, the “earlier-special” statute controls over the “later-general” statute. The later- general statute could only control if there is a repeal of the earlier-special statute by the later-general statute, and repeal by implication is strongly disfavored. Thus, if the legislature wants to repeal the “earlier-special”

1-26 statute, it may do so, provided it does so expressly. McDuffy v. State, 6 Md. App. 537, 539 (1969). However, it would not be a repeal by implication if (a) the “later-general” statute made an express reference to the “earlier-special” statute, or (b) there would be manifest or repugnant inconsistency. Shiflett v. State, 4 Md. App. 227 (1968). 11. Repeal of a repealing statute: The repeal of a repealing statute does not, by itself, revive the previously repealed statute. USCA § 15. In Applestein v. Osborne, 156 Md. 40 (1928), the Court of Appeals held that the repeal of a repealing statute revives the first statute, without express language, unless there is language in the statute or legislative history to the contrary. In Howard County Metropolitan Commission v. Westphal, 156 Md. 40 (1963), the Court of Appeals held that an invalid statutory amendment resulted in reinstating subsections of the County Code, with the meaning that they prior to enactment of the invalid amendment. 12. Comparison: Compare the statute at issue with the same law, same bill, similar statutes in other jurisdictions, and the common law. USCA §§ 15(4), 20(b)(1)-(2) & (5)-(7). These rules would also apply to rules of court. a. Same law: Compare previous versions of the statute, as judicially glossed, if the current statute is an amendment, revision, or re- enactment of the previous statute. USCA § 20(b)(7). (1) No change of expression: If there is no change of expression from the previous statute to the current statute, consider the current statute a continuation of the previous statute, with its judicial gloss. USCA § 20. A re-enactment of a statute, without relevant change, likely constitutes approval of a pre- re-enactment interpretation of the statute. Rosemary , Inc. v. McColgan, 177 P.2d 757 (1947). This is an aid to construction and not a binding rule. Girouard v. United States, 328 U.S. 61 (1946). (2) Change of expression: If there is a change of expression from the previous statute to the current statute, particularly if it is a striking change of expression, this usually indicates a change in legislative intent, or the legislature‟s attempt to make its intent clear, and may be a legislative response to judicial gloss place on the earlier version of the statute. (a) Consider the extent of the change of expression (b) Consider the placement of the change of expression within the stature: The closer in distance within the statute, the more likely the change of expression indicates a change in legislative intent, e.g., same clause or section or different clause or section.

1-27 (c) Consider the timing of the change of expression: The closer the change of expression is in time to a judicial interpretation, the more likely the change of expression indicates a change in legislative intent. For example, a change of expression in the first legislative session following judicial gloss probably indicates legislative disapproval of the judicial gloss. b. Same bill: Consider the evolution, if any, from the original bill to the bill that was eventually enacted as the statute, comparing drafts of, and/or amendments to, the bill prior to enactment. A striking change of expression, e.g., deletion of a clause or phrase, probably indicates something that the statute, as enacted, does not mean. c. ”Borrowed statutes doctrine”: Statutory language may be identical to, or substantially similar to, language borrowed from statute(s) in other jurisdiction(s), as judicially glossed. The “borrowed statutes doctrine” assumes that if one state borrows the statute of another state, it borrows also the existing judicial construction of the statute in the lending state. Cathcart v. Robinson, 5 Pet. (U.S.) 264 (19831). The assumption is that the borrowing state wants the legal result of the statute it borrowed, including its judicial interpretation. See Comment, 31 Minn. L. Rev. 617 (1947); Meanley v. McColgan, 121 P.2d 45 (Cal. App. 1942). d. Terms of art: Compare statutory language with common law words or terms of art, as judicially evolved. The more closely the statutory language parallels common law words or terms of art, the more likely the legislative intended to adopt the common law meaning. 13. Ejusdem generis: A general phrase that follows a list of specific items or examples indicates that the list is not closed. Additional items on the list are limited to the same kind of items as the specific items listed, e.g., “butcher knives, switchblades, stilettos, and other weapons” probably would not include guns. Boffen v. State, 372 Md. 724, 734-35 (2003). 14. Expressio unius, exclusio alterius: The expression of one thing (or some things) means the exclusion of other things, e.g., “It is illegal to possess heroin” would not make it unlawful to possess cocaine, unless there was an ejusdem generis phrase toward the end of the statute. In Deville v. State, 383 Md. 217, 230 (2004), the court of Appeals held that the re-codified statute did not include “home detention” as a correctional institution. Because the legislature expressly identified places that qualify as confinement in a correctional institution, and did not include “home detention,” home detention is not confinement in a correctional institution. 15. Characterization versus limitation: Determine whether adjectives and adverbs are used to characterize the category or whether they are used to place a limitation on the category. In Chambers v. State, 6 Md. App. 339,

1-28 343 (1968), the Court of Special Appeals held that “exploding incendiary device” in a Molotov cocktail statute was designed to explain what a Molotov cocktail is, by providing one of its characteristics, but the statute was not meant to limit the device to those actually exploding. 16. Mandatory language versus directory language a. Mandatory language: Statutory language is mandatory if it (1) includes “shall,” “must,” or negative language, e.g., “shall not,” “must not,” or “may not,” Baltimore City Police Department v. Andrew, 318 Md. 3 (1989); and (2) provides a sanction for non- compliance. With mandatory language, the statute may be mandatory, even without a sanction for non-compliance. “Should” can be argued as to mandatory or directory, but it is probably directory. b. Directory language: Statutory language is only directory, and is not mandatory, if the statute includes “may” or fails to provide a sanction for non-compliance. See Board of Physician Quality Assurance v. Mullan, 381 Md. 157, 166-67 (2004). 17. Disjunctive language versus conjunctive language a. Disjunctive language: Disjunctive language indicates a relationship of contrast and employs the word “or.” Any one of the series connected by “or” is sufficient. Tharp v. State, 362 Md. 77, 111 (2000). b. Conjunctive language: Conjunctive language indicates a cumulative requirement and employs the word “and.” All items connected by “and” are necessary to satisfy the statute. Id. c. Example: “„Incompetency to stand trial‟ means not able (1) to understand the nature or object of the proceeding; or (2) to assist in one‟s defense.‟” Md. Code Ann., Crim. Proc. § 3-101(f). For the Defendant, the Defendant is incompetent to stand trial if the Defendant lacks either the ability to (1) understand the nature and object of the proceeding, or (2) assist counsel in the defense. For the prosecution, the Defendant is only competent to stand trial if the Defendant possesses both the ability to (1) understand the nature and object of the proceeding, and (2) assist counsel in the defense. 18. Singular language versus plural language: Singular means plural and plural means singular, e.g., enhanced sentence for a second conviction would also apply to a third conviction. Gatewood v. State, 244 Md. 609, 618 (1966); Wright v. State, 198 Md. 163 (1951); Md. Ann. Code art. 1, § 8; USCA § 3. 19. Gender: Reference to one gender includes reference to the other gender. Md. Ann. Code art. 1, § 7; USCA § 4; Beard v. Agency Life Insurance Co.,

1-29 314 Md. 235 (1988). 20. Verb tense: Present tense words include future tense. USCA § 5. Barker v. California-Western States Life Insurance Co., 252 Cal. App. 2d 768, 61 Cal. Rptr. 595 (1968). Gargano, J. The Defendant sold group life insurance policies for veterans with the following provision: “Commission of a Felony: The company shall not be liable for any loss to which a contributing cause was the insured‟s commission or attempt to commit a felony.” The Decedent was killed in a head-on collision, while driving north in a southbound lane, after leaving a party where he had been drinking heavily and fell several times. The autopsy indicated that the Decedent‟s blood was 0.18% alcohol by weight. The Defendant refused to pay $12,859.06, which constituted the portion of the benefit attributed to accidental death. The Plaintiff was the Decedent‟s Spouse, who filed suit for and for declaratory relief. The trial court entered for the Defendant, ruling that, although the Decedent‟s death was caused by accidental means, his beneficiary was not entitled to the additional benefit because a contributing cause of death was the Decedent‟s commission of a felony. We are presented with the following questions: (1) Whether felony drunk driving, as defined in Vehicle Code § 23101, is a felony within the in the policy? (2) If so, is a conviction essential before the felony is deemed committed under the exclusion clause? Vehicle Code § 23101 defines felony drunk driving as follows: Any person who, while under the influence of intoxicating liquor, drives a vehicle and, when so driving, does any act forbidden by law, which act proximately causes bodily injury to any person other than himself is guilty of a crime. Incarceration in the state makes that crime a felony, and incarceration in a county jail makes that crime a misdemeanor. Under this section, any person who, while driving under the influence of alcohol, kills a person, is guilty of a felony, if incarcerated in state prison, and a misdemeanor, if incarcerated in a county jail. Until sentencing, the crime is deemed a felony. The Plaintiff asserts that the crime cannot be a felony unless incarcerated in state prison, which cannot happen without a conviction. She argues that the common law meaning of “felony” and the legislative history demonstrate that a felony is a crime that “must” be incarcerated in state prison and not merely a crime that “may” be incarcerated in state prison. She argues that, because the exclusion in the policy does not specifically refer to the statutory exclusion, and because this section provides for an alternate penalty, the Decedent could not have committed a felony because he was not charged with a felony, was not convicted of a felony, and not sentenced to state prison. An offense punishable either as a felony in state prison or as a misdemeanor in a county jail is deemed a felony until imposition of sentence. The cases do not require a conviction. In Doble v. Superior Court, 197 Cal. 556, the offense was a felony or misdemeanor, depending on imposition of sentence, and no charge was filed during the period prescribed by the statute of limitations for misdemeanors. The court held that the statute of limitations relating to felonies was applicable because the offense was treated as a felony, for all purposes, until imposition of sentence.

1-30 By implication, the court held that such an offense is treated as a felony even prior to charges being filed. Moreover, the vehicle code categorizes the offense as a felony, and it is the actual imposition of a county jail sentence that reduces the crime from a felony to a misdemeanor. If the legislature may classify offenses as felonies or misdemeanors, as it did, based on the sentence imposed, it may classify a particular offense as a felony until actual imposition of sentence, as it did. The conclude that the offense described must be deemed a felony for all purposes, including determination of contractual rights under an insurance policy, unless the offense was actually reduced to a misdemeanor after conviction by imposition of a or incarceration in a county jail. The Plaintiff‟s second argument is that the “commission of a felony” contributing to death requires a conviction. We disagree. The exclusion clause in the insurance policy does not require the conviction of a felony. Instead, it requires the commission or attempted commission of a felony. “Commit” means to “do” or to “perpetrate.” It has nothing to do with “conviction,” which requires a finding of beyond a . The exclusion clause contemplates the death of the Decedent while engaged in, or attempting to commit, a felony. The exclusion clause would have little or no meaning if a conviction was required. Although ambiguous clauses in insurance policies are interpreted against the insurance company, there is no ambiguity in this clause. We hold that a reading the clause would understand that it means that the insurance company is not liable if the conduct contributing to the insured‟s death is deemed to be a felony under the laws of this state. Judgment affirmed. Ishola v. State, 404 Md. 155 (2008). Greene, J. The Defendant was convicted of two counts of assuming the “identity of another,” under Md. Code Ann., Crim. Law § 8-301(c), based on his use of false identification when assuming two fictitious identities. The Court of Special Appeals affirmed the conviction, noting that the term “another” was not ambiguous, and meant any identity other than one’s own, including fictitious identities. On certiorari, we address the following questions: (1) Does Md. Code Ann., Crim. Law § 8-301(c), which requires the Defendant to “knowingly and willfully assume the identity of another,” include the assumption of a fictitious identity? (2) If not, is the evidence sufficient to find the Defendant guilty of assuming the identity of another, when the State failed to present any evidence that the identities assumed were real people? We answer both questions in the negative. We hold that the term “identity of another,” in section 8-301(c), is ambiguous. Applying the principle of strict construction, we resolve the ambiguity against the State and in favor of the Defendant. Furthermore, this ruling is consistent with the legislative history of section 8- 301. When examining the stated purpose of the statute, its structure, and the subsequent proposed amendment, we are persuaded that the legislature did not intend to include the assumption of fictitious identities among the prohibited acts, and we hold that there was insufficient evidence to convict. The Defendant visited a bank to open an account. He presented a Florida driver’s license with the name “Christopher J. Pitera.” The employee noted that the license did not

1-31 match the sample Florida driver’s license and refused to open an account. Recognizing Defendant as a current customer, the employee reviewed the signature card that the Defendant signed when he opened his bank account. When he opened that account, the Defendant provided a New Jersey driver’s with the name “James P. McNicolas.” Other branches were notified. Later that day, the Defendant entered another branch in a second attempt to open a bank account using a false identification. The bank notified the police, who obtained the Florida driver’s license bearing the name “Christopher J. Pitera” and arrested the Defendant. The police were unable to identify a person named either Christopher Pitera or James McNicolas. During deliberations, the jury sent a note to the judge, asking for definitions of “” and “another.” The trial court answered: “‘Fraudulent intent’ is proven if the State establishes beyond a reasonable doubt that the Defendant obtained or attempted to obtain a benefit, credit, good, service, or other thing of value by means of unlawful , false statement, or impersonation.” The trial court defined “another” as “other than the accused.” The jury then asked whether “other” meant “someone” other than Defendant, and court stated: “You must the meaning of the phrase ‘a person may not knowingly and willfully assume the identity of another.’” The jury found the Defendant guilty of two counts of assuming the identity of another under section 8-301(c). The Defendant appealed. The Court of Special Appeals affirmed, holding that the plain meaning of section 8- 301(c) is not ambiguous. The court concluded that even fictitious identities were included in the definition of “another;” and the State was not required to prove the existence of a person whose identity was stolen. We granted certiorari. We are asked to interpret the meaning of section 8-301(c), which prohibits knowingly and willfully assuming the identity of another. “Another” is not defined in the statute. When interpreting a statute, we must discern its purpose and the evil to be remedied. We begin with the plain language of the statute. If that language is unambiguous, we look no further than the text of the statute. Section 8-301(c) provides as follows: “A person may not knowingly and willfully assume the identity of another to avoid identification, apprehension, or prosecution for a crime; or with fraudulent intent to get a benefit, credit, goods, services, or other thing of value; or to avoid payment of debt or other legal obligation.” The parties dispute the meaning of “another” in section 8-301(c). The Defendant argues that “another” requires another person, making the State’s evidence insufficient. The State argues that “another” means any identity other than that of the Defendant, including a fictitious identity, and there was sufficient evidence, even though the State did not prove the existence of people whose identities were stolen. To ascertain legislative intent of plain language, we begin with the dictionary definition of “another.” Although dictionary definitions are not dispositive, they provide a starting point for discerning what the legislature meant. In 1999, when the term “identity of another” was added, Merriam-Webster’s Collegiate Dictionary defined “another” as (1) an additional one of the same kind, i.e., one more; (2) one that is different from the first or present one; or (3) one of a group of unspecified or indefinite things. This definition does not resolve whether the word “another” refers to another person, or any identity, including that of a fictitious person. Because the term “another” in section 8-301(c) is subject to more than one reasonable interpretation, it is ambiguous. The two reasonable interpretations of “another” in section 8-

1-32 301(c) are (1) the identity of another real person, or (2) any identity other than one’s own, including a fictitious identity. Having determined that section 8-301(c) is ambiguous, we look to the (1) legislative history, (2) case law, (3) statutory purpose, (4) statute’s title, and (5) how the statute relates to other laws, in an attempt to discern and effectuate the legislature’s purpose in enacting the statute. We begin with the basic principle that penal statutes are strictly construed so courts will not extend punishment to cases not plainly within the statute. Applying strict construction, we conclude that fictitious persons are not included in the meaning of “another” in section 8-301(c). If the legislature had intended to include fictitious persons in the meaning of “another,” it could have done so explicitly. The legislature used the term “fictitious person” in other statutes. Md. Code Ann., Comm. Law § 3-404(b) addresses instances in which the person identified as the payee of an instrument is a fictitious person. In a shoplifting statute, the legislature prohibits obtaining or attempting to obtain possession of any merchandise by (1) charging merchandise to another person without authority, or (2) charging merchandise to a fictitious person. The legislature’s explicit inclusion of fictitious person in this statute, and its exclusion of fictitious person in section 8-301(c), leads us to conclude that the legislature did not intend to include a fictitious person within the meaning of “another.” We are persuaded by the language of an Alabama statute, which provides: “A person commits the crime of obstructing using a false identity if he or she uses identification documents or identifying information of another person or a fictitious person to avoid summons, , prosecution, or to impede a criminal investigation.” The Alabama statute is an identity fraud statute, much like section 8-301(c). Unlike Maryland law, the Alabama law prohibits the use of both the identity of another person and the use of a fictitious identity. The , by the Maryland General Assembly, of the term “fictitious person” persuades us that the legislature did not prohibit the use of a fictitious person’s identity under section 8-301(c). Our interpretation of section 8-301(c) is consistent with the statute’s legislative history. The statute was enacted in 1999. The legislature’s stated purpose was to prohibit the use of “an individual’s personal identifying information without .” By referencing an individual who fails to consent to his or her identity being used, the legislature indicated its intent to prohibit the use of the identity of a real person, because a fictitious person could never give consent. Proof of this legislative intent is found in the bill analysis of Senate Bill 244, which added section 8-301. The analysis notes that the bill prohibits obtaining personal identifying information of another individual, without consent, and using that information to obtain or attempt to obtain anything of value. The statute prohibits obtaining or possessing identifying information of a real person, and we do not believe the legislature intended to include the identity of fictitious persons. In 2002, there was an attempt to amend section 8-301 by adding “or create a false identity.” Had the proposed amendment passed, the amended statute would likely have covered the Defendant’s conduct. However, the proposed amendment was rejected. The dissent notes that the purpose of the identity theft statute is to protect citizens from identity theft. We agree. However, the people to be protected by this statute are those whose identities have been stolen and not business people or entrepreneurs who are harmed.

1-33 Merchants are protected by the general fraud statutes. We do not believe that the legislature intended to expand the field of victims beyond those whose identities have been stolen. According to the dissent, our interpretation of section 8-301(c) allows a perpetrator to escape prosecution by assuming a fictitious identity. In our view, the legislature intended section 8- 301(c) to apply only when the Defendant assumes the identity of a real person. Because we hold that the term “another,” as used in section 8-301(c), is ambiguous, the rule of strict construction requires that we resolve the ambiguity against the State and in favor of the Defendant. We believe this result is consistent with the legislative intent. The stated purpose of the statute and the subsequent attempted amendment indicate that the legislature intended not to include the use of a fictitious identity among the prohibited acts in section 8- 301(c). We conclude that the evidence was insufficient to sustain the Defendant’s convictions under section 8-301(c). To convict, the State has to prove that the Defendant used the identities of a real person. Judgment of the Court of Special Appeals reversed; case is remanded with directions to reverse the Circuit Court. Battaglia, J., dissenting. The Defendant was convicted of two counts of assuming the “identity of another” in violation of Md. Code Ann., Crim. Law § 8-301(c), for using false identifications of “Christopher J. Pitera” and “James P. Nicholas” in an attempt to open bank accounts on two occasions. The police were unable to locate persons named “Christopher J. Pitera” and “James P. Nicholas.” The Court of Special Appeals affirmed, holding that the term “identity of another” in section 8- 301(c) is unambiguous and means an identity other than one’s own, including fictitious identities. The majority reverses, and I disagree. Section 8-301(c) prohibits knowingly and willfully assuming the identity of another (1) to avoid identification, apprehension, or prosecution for a crime; or (2) with fraudulent intent to (i) get a benefit, credit, good, service, or other thing of value; or (ii) avoid payment of debt or other legal obligation. The gravamen of this case is the phrase “identity of another.” The majority concludes that “identity of another” is ambiguous and interprets the statute to prohibit only assuming the identity of a real person. This is incorrect. Because we interpret statutory language according to its plain, natural, and ordinary meaning, “identity of another,” within subsection (c), does not connote only identities of real persons, as contained in the ordinary definition of “another,” being “one that is different from the first or present one.” The Defendant assumed an identity “different from” his own, when he twice attempted to open a bank account. The majority substitutes the language “identity of another actual real individual” for “identity of another.” If the legislature intended to exclude assuming the identity of a fictitious person, it would have done so. The majority proclaims that only those who assume the identity of a real person can be prosecuted, and a perpetrator can escape prosecution by assuming a fictitious identity. The legislature could not have reasonably intended such an illogical result. Statutory interpretation should not (1) produce an unreasonable or illogical consequence, (2) be inconsistent with common sense, or (3) be absurd. The majority’s reliance on legislative history is misplaced. The majority cites 1999 Md. Law ch. 331 as stating that the purpose of the identity theft statute is to prohibit using

1-34 personal identifying information without the consent of that person. This legislative history does not address the assumption of false identity for fraudulent purposes, as prohibited in subsection 8-301(c), which is at issue in this case. The purpose of the identity theft statute is to protect people from identity theft. The people to be protected are not only those individuals whose identities are assumed, but also those entrepreneurs who are harmed by the use of assumed identity. The bill analysis of Senate Bill 244 notes that the victims are often financial institutions or retail establishments. By interpreting the statute as it does, the majority fails to honor the statute’s legislative purpose. The evidence in this case is sufficient to convict the Defendant of identity theft. The Defendant twice attempted to use an identity that was not his own -- Christopher J. Pitera -- to open bank accounts. The Defendant previously opened an account under another identity not his own -- James P. Nicholas. Viewing this evidence in a light most favorable to the State, I believe that a rational fact-finder could find each element of section 8-301(c) beyond a reasonable doubt. State v. 149 Slot Machines, 310 Md. 356 (1987). Murphy, C.J. Md. Ann. Code art. 27, § 264B, codified under subtitle “Gaming” and new subheading “Slot Machines,” makes it unlawful “to locate, possess, keep, maintain or operate any slot machine.” Section 255(b), codified under the subtitle “Gaming,” permits volunteer fire companies, bona fide fraternal, civic, war veterans, religious, or charitable organizations desiring to conduct “a carnival, bazaar, or raffle” for their exclusive benefit to “award prizes in cash or merchandise by such devices as are commonly designated as paddle wheels, wheels of fortune, chance books, bingo, or any other gaming device.” The issue is whether the phrase “any other gaming device,” in section 255(b), encompasses slot machines otherwise prohibited by section 264B. The police seized, by warrant, 149 slot machines from 24 bona fide fraternal or war veterans groups under § 255(b). The State filed forfeiture petitions. The parties filed cross-motions for summary judgment, stipulating that (1) the machines seized were slot machines under section 264B; (2) each machine was used for gambling; and (3) no individual or group benefited financially from the proceeds. The State contended that slot machines are inherently illegal to possess under section 264B and are subject to forfeiture as contraband per se. The organizations argued that section 255(b) exempts such devices from section 264B‟s ban on possession of slot machines. The trial court granted the organizations‟ motions and ordered the State to return the slot machines, holding that slot machines are “gaming devices” under section 255(b). The court found that section 264B did not repeal the exemption to the gaming laws in section 255(b) and, thus, the slot machines are not contraband per se when held by organizations to which section 255(b) applies. We granted certiorari prior to a decision by the Court of Special Appeals. In 1962, Governor Tawes appointed the Emory Commission to recommend procedures to abolish slot machines, focusing on the four counties in which gambling was legal. The Commission acknowledged that non- organizations had for slot machines in these counties. The Commission‟s report noted that free play slot machines are prevalent throughout the State and recommended a statewide ban on any machine that could be used as a gambling device. The Maryland General Assembly responded to the Commission‟s Report by enacting ch. 617,

1-35 1963 Md. Laws, which is codified as section 264B. The Act prohibited slot machines and provided that “all laws, public general or public local, inconsistent with this Act are repealed to the extent of any inconsistency.” While this legislation was pending, an amendment was proposed to exempt slot machines operated by non-profit organizations in one county. The amendment failed. In 1969, 1972, and 1973, there were unsuccessful to amend section 264B to authorize possession of slot machines by various organizations. In 1985 and 1986, the Legislature enacted such legislation, but Governor Hughes vetoed it. In 1987, the Legislature authorized certain organizations in eight counties to operate slot machines. As enacted in 1949, section 255(b) contained a limited exemption for one county. Since that time, the legislature has amended section 255 numerous times, primarily to expand its geographic reach. In 1981, the legislature another county, expanded the allowable gambling activities, and excluded slot machines. Section 255 now reads: This subtitle may not be construed to make it unlawful for a volunteer fire company or bona fide fraternal, civic, war veterans, religious, or charitable organization to conduct a carnival, bazaar, or raffle for its exclusive benefit, if no individual benefits financially from such operation. The organization may award prizes in cash or merchandise by devices commonly designated as paddle wheels, wheels of fortune, chance books, bingo, or any other gaming device. In determining whether “any other gaming device,” in section 255(b), encompasses slot machines, we must ascertain the legislative intent, goal, and purpose in enacting the two sections. We look at the statutory language in the context in which it appears, including related statutes, legislative history, and other material that bears on the issue of legislative purpose or goal. If feasible, we construe statutes so that no word or phrase is rendered surplus or meaningless. The issue is whether the phrase “any other gaming device,” as used in section 255(b), includes slot machines. The organizations claim it does, and the State claims it does not. We must examine §§ 255(b) and 264B in light of these principles and our previous decisions and decide which construction best comports with the legislature‟s goal. In Clerk v. Chesapeake Beach Park, 251 Md. 657 (1968), we examined the effect of section 264B on local laws that authorized possession of coin-operated mechanical and electrical “amusement” devices. These machines did not offer cash pay-offs, but awarded free plays that could be redeemed for merchandise. We held that section 264B banned possession of these machines, noting that section 246 required a liberal construction of the gaming laws in order to prevent the mischiefs intended to be provided against. After studying the legislative history of section 264B, we determined that the Maryland General Assembly intended to ban any machine that furnished gratification or reward to a winning player other than further free plays. We concluded that section 264B repealed local county laws to the extent they authorized the use of slot machines. In State v. 158 Gaming Devices, 304 Md. 404 (1985), we held that section 264B banned possession of all such machines adapted for gambling. Thus, “a free-play device, equipped with odds mechanisms, a meter for the number of free plays, or other recognized indicia of a gambling device” came within the statutory ban. We held that slot machines are contraband per se because they are always illegal to possess. In American Legion v. State, 294 Md. 1 (1982), we addressed the relationship between sections 255 and 356, which makes it unlawful to conduct a lottery. The American Legion sold

1-36 tickets from a jar that offered the purchaser a chance to win cash prizes, either instantly or when the tickets from a particular jar were sold. The State argued that this activity constituted a lottery in contravention of § 356. We rejected that contention. We noted that the legislature always distinguishes gaming and lotteries. We noted that the provisions relating to lotteries and gambling appear in separate subtitles of the Code. The legislature did not intend that activities within the scope of section 255 be considered lotteries. Because the American Legion‟s activities came within the scope of § 255, we held that it had not violated section 356. In this case, the organizations rely on American Legion. They argue that we construed section 255 in that case to allow covered organizations to conduct gambling activities, and they argue that section 255 exempts eligible organizations from section 264B‟s ban on possession of slot machines. We disagree. In American Legion, we had to determine which subtitle of art. 27 governed the activity. Because Maryland traditionally drew a distinction between games of chance and schemes of lottery, we concluded that the gaming subtitle, rather than the lottery subtitle, applied. The activity involved chance books, a permitted activity under section 255(b). This case involves two provisions of the same subtitle, i.e., section 264B, outlawing slot machines, and section 255(b), permitting certain gaming activities. We must interpret the general phrase “any other gaming device,” following a list of devices that are not inherently illegal, but become so when used for gambling purposes. The doctrine of ejusdem generis dictates that we construe “any other gaming device” to include only devices similar to the ones listed, i.e., those legal to possess when not used for gaming purposes. Application of this doctrine excludes slot machines from the phrase “any other gaming device.” We think this result is consistent with the legislative intent. Both 158 Gaming Devices and Chesapeake Beach indicate that the legislature intended a total abolition of slot machines adapted for gambling. In those cases, we relied heavily on the Emory Report in determining the meaning of section 264B. That report acknowledged that many non-profit organizations operated slot machines,, but the report did not recommend an exemption from its proposed statewide ban. On four occasions, the Maryland General Assembly rejected proposed amendments to section 264B that would have exempted certain organizations from its coverage. Two such amendments were passed by the Legislature, but vetoed by the Governor. The 1987 legislature amended section 264B to allow non-profit organizations in eight counties to own slot machines. Persistent attempts to amend section 264B indicate that the 1963 Maryland General Assembly did not intend to exempt any organizations from section 264B‟s reach. Furthermore, section 264B provides that it repeals all inconsistent laws. If section 255(b) allowed possession of slot machines prior to the enactment of section 264B, that provision would be inconsistent with the prohibition of slot machines. Thus, it mandated the repeal of section 255(b) to the extent of its inconsistency with section 264B. The broad interpretation of “any gaming device” proposed by the organizations would render the list of particular devices surplusage. If the MGA intended to authorize the use of all gambling devices, it would not have listed the particular devices. In addition, it would not have amended section 255 in 1981 to allow a different group of activities in St. Mary‟s County. We reiterate that we construe “any other gaming device” to include only devices similar to the ones listed, namely, those legal to possess when not used for gaming purposes. In light of the provisions of section 264B, we conclude that, at the time of the seizures in this case, the phrase “any other gaming device” in section 255(b) did not permit the organizations to own and operate slot machines. Such devices,

1-37 being contraband per se, were properly seized. Judgment reversed & case remanded. Class Preparation Analysis questions for Barker v. California-Western States Life Insurance Co. 1. What factors determine what offenses are felonies in Maryland? 2. Under California law in 1968, could one offense, under one statute, as against one Defendant, relating to one incident, be a felony or a misdemeanor? Felony and a misdemeanor? Was the offense a felony or misdemeanor in this case? When is it determined whether the offense is a felony or misdemeanor? What is the of the offense prior to that determination? Explain. 3. What was the Plaintiff‟s argument? Why did that argument fail? Analysis questions for Ishola v. State 1. What was the issue in this case, and what one word in statute framed that issue. How did the majority and the Defendant align with one understanding of that word, and how did the dissent and the State align with a different understanding of that word? 2. What is strict construction, and why did the Court of Appeals apply strict construction? 3. How did both the majority and the dissent utilize the legislature‟s silence? 4. How did the majority make use of other statutes in its analysis? 5. How did the majority make use of published legislative history? How did the dissent disagree? 6. How did legislative activity subsequent to this 1999 statute influence the Court‟s analysis? 7. How did the majority and the dissent both agree and disagree as to the purpose of the statute? 8. In April 2011, the Maryland General Assembly enacted House Bill 408 and Senate Bill 500, which the Governor signed into law on April 12, 2011. The new law rendered this case moot. In light of this case, what would that legislation have done? Analysis questions for State v. 149 Slot Machines 1. Explain the procedural posture of this case at trial and on appeal. 2. How did the application of each of the following principles of statutory construction play a role in the Court‟s analysis? a. Legislative history b. Strict/narrow construction c. Construe the statute as a whole d. Statutes in pari materia e. Special statutes control over general statutes

1-38 f. Later statutes control over earlier statutes g. Comparisons within the same bill h. Ejusdem generis Problem During a bar brawl, a bar bouncer killed a bar patron. Delegate Jones introduced House Bill 622, and Senator Smith introduced Senate Bill 416 as a companion bill. The bills were titled “Security Officers‟ Force Limitation Act.” As introduced, the bills contained the following language: Security officers may not use any gun, knife, billy club, or other item of force, in the course of fulfilling their duties, unless actually attacked. Violation shall be a misdemeanor, punishable by 18 months incarceration, unless such violation results in death, which makes the violation a felony, punishable by ten years incarceration. Both the House and Senate conducted hearings. Bar bouncers testified as follows: (1) There may be as many as 250 patrons, yet only one or two bar bouncers, and they cannot rely on the police. (2) Bar patrons become unruly, particularly when they drink too much. (3) Bar bouncers need to defend themselves prior to being attacked. Citizen groups testified that bar bouncers overreact, leading to injury and death. After the hearing, the bill was amended in both houses, as follows: It shall be a crime, punishable by two years incarceration, for a security officer to use any gun, knife, billy club, or any force, in the course of fulfilling his or her duties. As amended, the statute passed both houses. The Governor approved the law at a signing ceremony, designating the law as ch. 146, 2011 Md. Laws. Frank Fist, a police officer, was “moonlighting” as a bar bouncer at the Club Good Times, a favorite hang out among Army enlisted personnel near the main gate of Fort Gungho Military Installation. One evening, Sergeant Sam and his girlfriend entered the establishment. Frank made a comment to Sam‟s girlfriend that Sam interpreted as a “pass.” Sam brought forth a gun and pointed it at Frank. Frank responded, “No military midget is going to pull a gun on me. I‟m going to kill you.” Frank lunged at Sam, who fled into the street, where he was killed by a passing automobile. Frank was charged in a federal indictment with a felony for violating the Assimilative Crimes Act by violating the Security Officers‟ Force Limitation Act. Frank‟s police agency suspended him, without pay, pending the outcome of the criminal case. Analyze the issues.

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