I.
This сase has a long history, having come before this Court on two prior occasions.
See Dua v. Comcast Cable of Maryland,
The case originated in 1995 as a class action suit brought by consumer television cable subscribers against their cable television provider, United Cable Television of Baltimore, L.P., now Comcast Cable, challenging the five dollar per month late fee that was being charged for cable bills that were not paid by the datе set forth on the face of the bills. The subscribers alleged that the five dollar late fee was an illegal penalty and not a valid liquidated damages provision, and that, under Article III, § 57, of the Maryland Constitution, such late
In response to this Court’s decision in Burch I, the General Assembly enacted Ch. 59 of the Acts of 2000, codified as Maryland Code (2000, 2002 Repl.Vol.), § 14-1315 of the Commercial Law Article, which became effective on October 1, 2000. The new statute increased the maximum allowable late fees that could be collected on consumer contracts involving the “sale, lease, or provision of goods or services which are for personal, family, or household purposes.” The statute also contained a retroactive provision which purported to validate the late fees charged in excess of the constitutional limit on contracts entered into between November 1995 and October 1, 2000. See Ch. 59 of the Acts of 2000, § 5.
The retroactive provision of the statute, contained in § 5 of Ch. 59, was challenged in several actions by consumer subscribers of cable television against Comcast Cable of Maryland, Inc., the successor to United Cable. The suits had bеen brought in both the Circuit Court for Baltimore County and the Circuit Court for Harford County. The plaintiffs in those cases sought to recover the monthly late fees paid to Comcast in excess of the six percent per annum fee allowed under
Article III, § 57, of the Maryland Constitution. The cases were later consolidated in the Circuit Court for Baltimore County. Comcast moved to dismiss the actions on the ground that the retroactive provision in Ch. 59, § 5, validated the late fees which had exceeded the constitutional limit. The plaintiffs responded by arguing that the retroactive provision contained in § 5 of Ch. 59 violated their rights under both the federal and state constitutions. After a hearing on the matter, the Circuit Court granted Comcast’s motion to dismiss, rejecting the plaintiffs constitutional arguments, and holding that the retroactive provision was valid.
See Dua,
In September 2001, while the Dua case was pending in this Court, and in response to the enactment of Ch. 59, United Cable filed a motion in the Circuit Court for Baltimore City, requesting that the court vacate the permanent injunction entered in 1997, which continued to prohibit United Cable from collecting late fees in excess of $.50 per month. In its motion, United Cable argued that Ch. 59 substantially changed the law, and it requested the Circuit Court to vacate the permanent injunction so that United Cable could prospectively collect late fees in accordance with the new statutory provisions.
The Burch class of plaintiffs responded by requesting the court to abstain from vacating the permanent injunction until the Baltimore City Council had an opportunity to vote on a proposal which would have restricted cable television providers within the City limits from charging late fees in excеss of $.50 per month. They also argued that, even if Baltimore City’s proposal was not enacted, the new law did not apply to the members of the Burch class of plaintiffs because the General Assembly intended to exempt that class. According to the plaintiffs, the exemption was contained in § 6 of Ch. 59, which provided that the new law would not apply to “any case for which a final judgment has been rendered and for which appeals have been exhausted prior to June 1, 2000.” The plaintiffs further argued that, under § 4 of Ch. 59, the Circuit Court had jurisdiction to limit the late fees because the court qualified as a “federal, state, or local regulatory agency or authority,” which was allowed under the statute to impose additional conditions or limitation on late fees. The plaintiffs asserted that the injunction constituted a valid regulation of late fees in Baltimore City.
Following a hearing on the matter, the Circuit Court granted United Cable’s motion to vacate the permanent injunction, thereby allowing the cable company to collect future late fees in accordance with Ch. 59. The plaintiffs appealed to the Court of Special Appeals, which affirmed in an unreported opinion. The plaintiffs then filed in this Court a petition for a writ of certiorari which we granted.
Burch v. United Cable,
The plaintiffs, asserting that it was erroneous for the trial court to vacate the permanent injunction, reiterate the two arguments which they had made in the Circuit Court. First, the plaintiffs contend that the Burch class of plaintiffs was specifically exempt from the prospective application of Ch. 59 by the language of § 6. Second, the plaintiffs arguе that the language of Ch. 59, § 4, allowing a “federal, state, or local regulatory agency” to impose additional limitations was applicable because the Circuit Court for Baltimore City qualified as such an “agency.” Third, the plaintiffs maintain that the prospective application of Ch. 59 to the Burch class would be unconstitutional. They rely on Articles 8 and 24 of the Maryland Declaration of Rights, Article III, §§40 and 57 of the Maryland Constitution, and Article 1, Section 10, Clause 1, of the United States Constitution (“No State shall ... pass any ... Law impairing the Obligation of Contracts .. .”).
United Cable disagrees with the plaintiffs’ interpretation of Ch. 59, arguing that both the Circuit Court and the Court of Special Appeals correctly held that Ch. 59 prospectively applied to the
Burch
Class of plaintiffs. United Cable urges that this Court refuse to consider the plaintiffs’ constitutional
This Court shall reject the plaintiffs’ arguments based on §§ 6 and 4 of Ch. 59, and shall affirm. We shall not decide the merits of thе constitutional arguments because no constitutional issue was raised in the Circuit Court.
II.
The plaintiffs acknowledge that United Cable “correctly contends” that no constitutional issue was raised in the Circuit Court; they “concede that this is true.” (Petitioners’ reply brief at 14). Nonetheless, they point out that Maryland Rule 8-131(a) gives an appellate court discretion to decide issues not raised at trial, and they request that this Court exercise its discretion to consider the merits of their constitutional arguments. As did the Court of Special Appeals, we shall dеny the request.
Very recently we addressed this matter in
Baltimore Teachers Union v. Board of Education,
“Since the constitutional issue raised in the Union’s brief was not raised in the trial court, we shall decline to address it. It is particularly important not to address a constitutional issue not raised in the trial court in light of the principle that a court will not unnecessarily decide a constitutional question. Winder v. State,362 Md. 275 , 306-307 n. 18,765 A.2d 97 , 114 n. 18 (2001); Dorsey v. State,356 Md. 324 , 342,739 A.2d 41 , 51 (1999).”
See, e.g., Fitzgerald v. State,
As indicated above, “the Cоurt’s established policy is to decide constitutional issues only when necessary.”
Mercy Hospital v. Jackson,
In light of this strong policy against reaching a constitutional issue unnecessarily, this Court has normally exercised its discretion to decide a constitutional issue, not raised below, only when the issue falls within a well-established еxception to Rule 8-131(a), such as a jurisdictional matter.
See, e.g., Duffy v. Conaway,
The plaintiffs’ constitutional arguments, raised for the first time on appeal, do not involve a jurisdictional question or any other matter which falls within an established exception to Maryland Rule 8-131(a). Consequently, we decline to consider the constitutional arguments.
III.
We shall now turn to the propriety of the Circuit Court’s order vacating the injunction and the plaintiffs’ arguments based on their interpretation of Ch. 59 of the Acts of 2000.
A.
Maryland circuit courts are authorized to grant, deny, modify or dissolve an injunсtion. Maryland Rule 15-502(b) and 15—202(f);
State Commission v. Talbot County,
“[The] contention assumes that the court granting the injunction had no power to rescind or modify its final decree after it had become enrolled, no matter what changes had occurred in the conditiоns or the relations of the parties after the decree. There is obviously no force in these contentions.
“Certainly, where changes in the relations of the parties or the conditions upon which it is based, occurring after a final decree of the nature of that passed in this case, render its further operation unreasonable, unjust, oppressive or inequitable, the court which passed it necessarily must have the right to dissolve it....”
“It is true as a general principle that a final enrolled decree will not be opened tо relitigate any question dealt with in it by the court passing such a decree, but that rule does not mean that, where events have occurred since the decree which would necessarily make the continuance of the injunction an absurdity, or unjust or oppressive, that the court which granted it could not in a properproceeding change its decree to conform to the changed conditions. By way of illustration, if one were enjoined from obstructing a way appurtenant to land, and he afterwards acquired the land and its appurtenances, it cannot be supposed that the court which granted the injunction could not under such circumstances open the decree and dissolve it.”
See also Evans v. Stinchcomb,
It is ordinarily an appropriate exercise of a circuit court’s authority to vacate a permanent injunction when there are statutory changes which nullify the basis for the injunction.
See Chayt v. Maryland Jockey Club,
The plaintiffs, however, contend that the exception contained in § 6 of Ch. 59, which exempted cases in which a final judgment had previously been rendered and all appeals exhausted prior to June 1, 2000, protected both the money judgment and the permanent injunction from being modified.
Ch. 59 of the Acts of 2000, now § 14-1315 of the Commercial Law Article, sets forth the amount of late fees that can be assessed under consumer contracts, such as those for cable services. It states in pertinent part:
Ҥ 14-1315. Late fees.
(a) Definitions.—(1) In this section the following words have the meanings indicated.
(2) ‘Consumer contract’ means a contract involving the sale, lease, or provision of goods or services which are for personal, family, or household purposes.”
(f) Limitations.—(1) A late fee included in a consumer contract pursuant to this section is subject to one of the following limitations:
(i) 1. The amount of the late fee may be up to $5 per month, or up to 10% per month of the payment amount that is past due, whichever is greater; and
2. No more than 3 monthly late fees may be imposed for any single payment amount that is past due, regardless of the period during which the payment remains past due; or
(ii) The amount of the late fee may be up to 1.5% per month of the payment amount that is past due.
(2) The amount of the late fee under paragraph (1) of this subsection shall be disclosed, in the consumer contract or by notice, in size equal to at least 10-point bold type.
(3) (i) Except as provided in subparagraph (ii) of this paragraph, a late fee included in a consumer contract рursuant to this section may not be imposed until 15 days after the date the bill was rendered for the goods or services provided.
(ii) If a bill is not rendered, a late fee included in a consumer contract pursuant to this section may not be imposeduntil 15 days after the payment amount becomes due.
(g) Additional limitations or conditions.—A late fee imposed under this section is subject to any additional limitations or conditions prescribed by any federal, State, or local regulatory agency or authority having jurisdiction over entities imposing late fees regulated by this section.”
The argument that the Burch class of plaintiffs was intended to be excluded from thе prospective application of the law, is based exclusively on § 6 of Ch. 59, a provision of the statute which is not codified. Section 6 states in pertinent part:
“[T]his Act shall apply to any case pending or filed on or after June 1, 2000, but may not be applied to any case for which a final judgment has been rendered and for which appeals have been exhausted prior to June 1, 2000.”
The plaintiffs point out that they, or the class to which they belong, were plaintiffs in Burch I, that there was a “final” judgment, and that all appeals in Burch I had been exhausted prior to June 1, 2000. Accordingly, the plaintiffs’ argument сontinues, Ch. 59, § 6, exempts them from the prospective application of the other provisions in Ch. 59. Therefore, the plaintiffs’ conclude, the original permanent injunction, which prohibited United Cable from collecting late fees in excess of the six percent constitutional limit from the Burch class, was a “final” judgment which should remain in place forever.
There can be little doubt that the General Assembly intended the increased late fees allowable under Ch. 59 to apply generally to all parties who enter into consumer contracts in Maryland.
See Dua v. Comcast,
As the Court of Special Appeals correctly pointed out in its unreported opinion in the case at bar, what the exemption intended was for the monetary award in Burch I to remain intact, despite the attempted retroactive application of Ch. 59. Section 6 was not, as plaintiffs claim, an attempt to preclude the prospective application of the higher rates to the Burch class of plaintiffs.
The plaintiffs’ reliance upon the “final judgment” language of Ch. 59, § 6, as applied to the injunction portion of the
Burch I
judgment, is misplaced. The word “final” as used in statutes, rules, cases, and other legal writings, connotes somewhat different things, depending upon the context and
the circumstances.
3
For
A “final” injunction, however, is in a wholly different category with respect to future revisions or modifications. As earlier discussed, “final” injunctions are generally subject to modification or dissolution when circumstances have changed.
Emergency Hospital v. Stevens, supra,
This distinction between most “final” judgments, including monetary judgments, and injunctions is well-settled and has existed for a long period of time. When the General Assembly enаcted Ch. 59 of the Acts of 2000, it was presumably aware of the distinction.
See, e.g., Royal Plaza Community Association v. Bonds,
In light of the presumption that the General Assembly knew that a “final” monetary judgment could not be modified by Ch. 59 and its retroactive provision, but that an injunction could later be judicially modified or dissolved based on a change in
Also militating against the plaintiffs’ interpretation of Ch. 59, § 6, is “the principle that a court will, whenever reasonably possible, construe and apply a statute to avoid casting serious doubt upon its constitutionality.”
Yangming Marine Transport v. Revon Products U.S.A., Inc.,
The plaintiffs’ interpretation of Ch. 59, § 6, would result in discrimination presenting serious constitutional issues. As the plaintiffs concede, under their interpretation of Ch. 59, the law immediately prior to the effective date of Ch. 59 would only apply to late fees imposed on the plaintiffs by United Cable (now Comcast Cable) and not to late fees imрosed by any other television provider (e.g., a satellite television provider or a competing cable television provider) or by any other business which charges late fees to Baltimore City residents in accordance with consumer contracts. Furthermore, under the plaintiffs’ interpretation, the pre-Ch. 59 law would not apply to any Maryland residents outside of Baltimore City, including those county residents who subscribe to Comcast Cable’s television services. Finally, under the plaintiffs’ theory, these discriminatory applications of the law рrescribing maximum late fees would continue for the indefinite future, perhaps forever.
The plaintiffs’ interpretation of Ch. 59 would create a small privileged group of consumers wdio would be legally protected, for the indefinite future, from paying the late fees that all other late-paying consumers in Maryland might have to pay.
This discrimination would clearly present significant constitutional issues under the equal protection component of Article 24 of the Maryland Declaration of Rights.
See Frankel v. Board of Regents,
For all of the above-discussed reasons, therefore, we reject the plaintiffs’ theory that Ch. 59, § 6, of the Acts of 2000, gave the plaintiffs a monetary benefit, for the indefinite future, which was not given to all other Marylanders.
B.
Along with their contention that the Burch class should be protected from the application of the statute because of the exemption contained in section 6 of Ch. 59, the plaintiffs argue that the Circuit Court for Baltimore City qualifies as an “authority having jurisdiction over entities imposing late fees regulated by this section,” and that thе 1997 injunction qualifies as a limitation on late fees imposed by such regulatory authority. See § 14-1315(g) of the Commercial Law Article which provides:
“(g) Additional limitations or conditions.—A late fee imposed under this section is subject to any additional limitations or conditions prescribed by any federal, State, or local regulatory agency or authority having jurisdiction over entities imposing late fees regulated by this section.”
Under the plaintiffs theory, a circuit court could regulate the late fees charged pursuant to any consumer contract governed by § 14-1315(g).
The plaintiffs’ argument is frivolous. A Maryland circuit court is not a “regulatory agency or authority” over consumer contracts and has no jurisdiction to regulate initially the fees which businesses charge to consumers. Any attempt to confer such jurisdiction upon a court created by Article IV of the Maryland Constitution would be invalid under the separation of powers mandated by Article 8 of the Maryland Declaration of Rights.
See, e.g., Duffy v. Conaway, supra,
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY THE PETITIONERS.
Notes
. Article III, § 57, provides:
"The Legal Rate of Interest shall be Six per cent per annum, unless otherwise provided by the General Assembly.”
. The total judgment was in the amount of $7, 598,518.71, which included the late fees collected by United from November 7, 1992, through September 20, 1997, as well as prejudgment interest.
Burch 1,
. See,
e.g., General Motors Corporation v. Miller Buick, Inc.,
. Under Article 8 of the Maryland Declaration of Rights and a long line of this Court's opinions, the General Assembly is ordinarily precluded from overturning a final judgment of the judiciary. The General Assembly, by so doing, would be
"exercisjmg] judicial power, which, by the Declaration of Rights, and numerous decisions in this State ..., it could not assume and exercise.”
Baltimore v. Horn, supra,