Craig B. CHESEK and Gregory J. Maddalone v. Adrienne A. JONES.
No. 117, Sept. Term, 2007.
Court of Appeals of Maryland.
Nov. 6, 2008.
959 A.2d 795
IRMA S. RAKER, J., Retired, Specially Assigned.
The question presented in these consolidated cases1 is whether a Special Committee, formed by the Legislative Policy Committee pursuant to
I.
A.
The Legislative Policy Committee is a bi-partisan committee of the Maryland General Assembly established by statute under
“(a) In general.—The Committee has the following functions:
(1) to review the work of the standing committees;
(2) to collect information about the government and general welfare of the State;
(3) to study the operation of and recommend changes in the Constitution, statutes, and common law of the State;
(4) to study the rules and procedures of the Senate and the House and recommend changes that would improve and expedite the consideration of legislation by the General Assembly;
(5) to coordinate and supervise generally the work of the General Assembly when it is not in session;
(6) to prepare or endorse a legislative program that includes the bills, resolutions, or other recommendations of the Committee that are to be presented to the General Assembly at its next session; and
(7) to carry out its powers and duties under the Maryland Program Evaluation Act.”
To carry out the expansive duties with which the Legislative Policy Committee is entrusted under
“(b) Powers and duties.—To carry out its functions, the Committee:
(1) shall receive, from any source, suggestions for legislation or investigation;
(2) may hold a hearing on any matter;
(3) may appoint a special committee;
(4) may refer a matter for study and report to any of its special committees or any committee of the General Assembly;
(5) shall consider the reports of standing, statutory, and special committees;
(6) may have any bill or resolution prepared to carry out its recommendations; and
(7) when the General Assembly is not in session:
(i) may accept a gift or grant of money ...; and
(ii) may spend the money for that purpose, in accordance with the State budget.”
The Legislative Policy Committee may compel testimony, depose witnesses, and issue subpoenas under
“(a) Authorized.—In carrying out any of its functions or powers, the Committee may:
(1) issue subpoenas;
(2) compel the attendance of witnesses;
(3) compel the production of any papers, books, accounts, documents, and testimony;
(4) administer oaths; and
(5) cause the depositions of witnesses, who reside in or outside of the State, to be taken in the manner provided by law for taking depositions in a civil case.”
In 2005, the Maryland General Assembly, through the Legislative Policy Committee, began an investigation into the alleged wrongful political firings of employees within various state agencies during Governor Ehrlich‘s administration. In June 2005, the Legislative Policy Committee created a twelve-member Special Committee on State Employees’ Rights and Protections to examine procedures, practices, and standards pertaining to the involuntary separation of state employees. The Legislative Policy Committee tasked the Special Committee with investigating:
“1. (a) Whether Maryland law affords sufficient protection for State personnel against involuntary separations for illegal or unconstitutional reasons; and
(b) Whether the government structure and procedures for decision making with respect to involuntary separations sufficiently protect State personnel from illegal or unconstitutional actions;
“2. (a) Whether the manner in which Administrations have determined the subjects of involuntary separations and effected such separations is fundamentally fair and consistent with best practices for personnel management; and
(b) What effect involuntary separations have on the overall quality and professional standards of the State government workforce; and
“3. Whether additional statutory protections are needed to safeguard the rights of state personnel....”
Legis. Policy Comm. Res. (Md. 2005). In the resolution establishing the Special Committee, the Legislative Policy Committee expressly delegated all of its powers under
“[B]e it further resolved ... That the Special Committee is delegated the powers of the Legislative Policy Committee (LPC) under § 2-408 of the State Government Article.”
Id. The powers delegated under
On May 1, 2006, subpoenas were served on Chesek and Maddalone ordering them to appear before the Special Committee on May 11, 2006, and to testify regarding State employees’ terminations and separation procedures. Appellants, with counsel, appeared before the Special Committee as ordered. During their respective testimony, Maddalone and Chesek refused to answer certain questions, claiming their appearance was voluntary and that they were permitted to refuse to answer questions at their own discretion. Maddalone was sworn in and discussed his involvement in evaluating employees at the Maryland Department of Transportation and making firing recommendations as well as maintaining a database related to the firings. He refused, however, to answer ques-
On May 22, 2006, the Special Committee voted to request the Circuit Court for Baltimore County to compel the appellants’ testimony. On June 1, 2006, Delegate Adrienne Jones, as co-chairperson of the Special Committee, filed a Petition for Order to Compel Testimony and a Motion for Summary Judgment in the Circuit Court for Baltimore County. Appellants filed a motion to dismiss and a cross-motion for summary judgment.
On October 2, 2007, the Circuit Court granted Jones’ motion for summary judgment against Chesek in its entirety, requiring him to answer all of the Special Committee‘s previously asked questions. With respect to Maddalone, the court granted Jones’ motion for summary judgment in part and denied it in part. The court ruled that Maddalone did not have to answer the Special Committee‘s questions regarding payment of his attorney‘s fees, but that he did have to respond to questions regarding a state employee database.6
Appellants noted a timely appeal to the Court of Special Appeals challenging the order of the Circuit Court requiring them to answer certain questions posed by the Special Committee. Appellee filed a cross-appeal to challenge the ruling on questions relating to the payment of attorney‘s fees. In December 2007, appellee Jones filed a petition for a writ of certiorari with this Court. We granted certiorari to answer the following questions:7
“1. Could the Legislative Policy Committee have delegated its statutory subpoena power and investigatory powers to a ‘special committee’ created pursuant to
§ 2-407(b)(3) of the State Government Article ?“2. Where the respondent-witnesses made no objection before the Special Committee, have they waived objections to compelled testimony based on an alleged failure of the Committee to follow its rules and there alleged ‘voluntary’ appearance before the Committee?
“3. Can the respondent-witnesses assert that they are volunteers before the committee when they were served with a valid subpoena, appeared before the Committee and took the oath without qualification?
“4. Do the respondent-witnesses have a privilege to refuse to discuss the personnel matters of specific employees or former employees before a committee investigating the alleged illegal and improper firing of State employees?
“5. May the attorney-client privilege be asserted before a legislative investigatory committee and, if it can, does the privilege prevent the Special Committee from inquiring, for purposes of determining undue influence and credibility, who was paying the respondent-witnesses’ attorney fees?”
Chesek v. Jones, 402 Md. 623, 938 A.2d 825 (2008).8
II.
Appellants Chesek and Maddalone assert that the Circuit Court for Baltimore County lacks the jurisdiction to enforce
Appellee Adrienne Jones contends that Chesek and Maddalone have waived any objection to the subpoenas by complying with them and by failing to file a motion to quash. Appellee alleges that in creating the Special Committee pursuant to
III.
We review a trial court‘s grant of a motion for summary judgment de novo. Dashiell v. Meeks, 396 Md. 149, 163, 913 A.2d 10, 18 (2006). “In considering a trial court‘s grant of a motion for summary judgment, this Court reviews the record in the light most favorable to the non-moving party.” Anderson v. Council of Unit Owners of the Gables on Tuckerman Condominium, 404 Md. 560, 570, 948 A.2d 11, 18 (2008); Rhoads v. Sommer, 401 Md. 131, 148, 931 A.2d 508, 518 (2007) (“We review the record in the light most favorable to the non-moving party and construe any reasonable inferences that may be drawn from the facts against the moving party“). In the absence of a genuine dispute of material fact, we determine whether the trial court‘s grant of summary judgment was correct as a matter of law. See
The question in this case turns on whether a special committee, appointed by the Legislative Policy Committee under the authority of
“The starting point in statutory interpretation is with an examination of the language of the statute. If the words of the statute, construed according to their common and every-
Although this Court will neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute, see, e.g., Stachowski v. Sysco, 402 Md. 506, 516, 937 A.2d 195, 200 (2007), a necessary corollary to that principle is “that which necessarily is implied in the statute is as much a part of it as that which is expressed.” Stanford v. Md. Police Training, 346 Md. 374, 379, 697 A.2d 424, 426 (1997) (emphasis in original); see also Soper v. Montgomery County, 294 Md. 331, 335, 449 A.2d 1158, 1160 (1982); Guardian Life Ins. v. Ins. Comm‘r, 293 Md. 629, 643, 446 A.2d 1140, 1148 (1982); Chillum-Adelphi v. Board, 247 Md. 373, 377, 231 A.2d 60, 62 (1967); Restivo v. Princeton Constr. Co., 223 Md. 516, 525, 165 A.2d 766, 771 (1960).
We read within the provision of
First, we note that the investigative power of the Legislature is both inherent and expressly provided for by statute. The principle is long-standing that a legislature is vested with all investigative power necessary to exercise its function properly. See, e.g., McGrain v. Daugherty, 273 U.S. 135, 174, 47 S.Ct. 319, 328, 71 L.Ed. 580 (1927) (“[T]he power of inquiry—with the process to enforce it—is an essential and appropriate auxiliary to the legislative function“); J. Michael
“A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information—which not infrequently is true—recourse must be had to others who do possess it ... some means of compulsion are essential to obtain what is needed.”
McGrain, supra, 273 U.S. at 175, 47 S.Ct. at 329.
In addition, the investigative power is conferred upon the General Assembly expressly in the
“The House of delegates may inquire, on the oath of witnesses, into all complaints, grievances, and offenses.... They may call for all public, or official papers and records, and send for persons, whom they may judge necessary in the course of their inquiries....”
The Legislative Policy Committee, in turn, was granted broad investigative powers under
Our reading of the statute is consistent with federal authority regarding subcommittee investigative power. See generally Nixon v. United States, 506 U.S. 224, 250-51, 113 S.Ct. 732, 746, 122 L.Ed.2d 1 (1993) (White, J., concurring) (stating that the ability of Congress to delegate fact-finding and investigations into impeachment to committees is supported by textual and historical evidence); United States v. Custodian of Records, Southwestern Fertility Ctr., 743 F.Supp. 783, 786-87 (W.D.Okla.1990) (finding the Inspector General could delegate subpoena power even where the statute is silent as to the power to delegate, because where the grant of authority, power, and duties of the office is so broad, the power to
Our reasoning is supported by the Legislature‘s subsequent amendment of
As a final matter, we address appellee‘s contention that appellant Maddalone should be required to answer questions regarding the source of the payment of his attorney‘s fees. We have stated that the “overwhelming authority holds that the attorney-client privilege is generally not violated by requiring the disclosure of the payment of attorney‘s fees and expenses.” In re Criminal Investigation No. 1/242Q, 326 Md. 1, 7, 602 A.2d 1220 (1992). Ordinarily fee arrangements are not within the scope of attorney-client privilege because revealing such information generally does not expose confidential communication between the attorney and client. Id. Maddalone has not asserted any exception to the general rule regarding fees and the attorney-client privilege and we therefore do not address it. Accordingly, we hold that the Circuit Court erred in holding that Maddalone was not required to
For the reasons set forth above, we hold that the Circuit Court for Baltimore County properly granted summary judgment in favor of appellee and the Special Committee, but that on the basis of the record before us, appellant Maddalone is required to answer Special Committee questions regarding the source of the payment of his attorney‘s fees.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED IN PART AND REVERSED IN PART. CASE REMANDED TO THAT COURT FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY APPELLANTS.
MURPHY, J., Concurs.
Concurring Opinion by MURPHY, J.
I agree that the appellee was entitled to summary judgment in her favor on the issue of whether the Special Committee possesses subpoena power. I also agree that appellant Maddalone was not entitled to summary judgment in his favor on the issue of whether he was required to answer the Committee‘s questions regarding the source of the payment of his attorney‘s fees. In my opinion, because neither party was entitled to summary judgment on this issue, the case at bar should be remanded for further proceedings at which Maddalone and his attorney will have the opportunity to address the issue of “whether the revelation of the identity of the fee payer along with information regarding the fee arrangement would reveal a confidential communication between [Maddalone‘s counsel] and the fee payer.” In re Grand Jury Proceeding, Cherney, 898 F.2d 565, 567 (7th Cir.1990).
In Cherney, the United States District Court for the Southern District of Illinois granted a motion to quash a Grand Jury subpoena that had been issued to David Cherney, an attorney who argued that the attorney-client privilege protected the identity of the person who paid legal fees to him on behalf of another person. While affirming that ruling, the United States Court of Appeals for the Seventh Circuit stated:
[T]he government is correct in its charge that the privilege is limited to confidential communications and the decision to quash the subpoena in the instant case cannot be supported solely by the determination that disclosure would incriminate the fee payer. The proper question is whether the revelation of the identity of the fee payer along with information regarding the fee arrangement would reveal a confidential communication between Cherney and the fee payer.
*
The government argues that, regardless of the formation of this relationship, information concerning the payment of fees simply cannot be considered a confidential communication. In the circumstances of this case, we must disagree. A client‘s motive for seeking legal advice is undeniably a confidential communication. See, e.g., Matter of Walsh, 623 F.2d at 494 n. 6. Accordingly, the privilege protects an unknown client‘s identity where its disclosure would reveal a client‘s motive for seeking legal advice. Tillotson v. Boughner, 350 F.2d 663, 666 (7th Cir.1965); Matter of Witnesses, 729 F.2d at 493.
Id. at 568 (emphasis added).
In Tillotson v. Boughner, 350 F.2d 663 (7th Cir.1965), while reversing an order holding Jackson L. Boughner, Esq. in civil contempt for his refusal to identify the client who retained him to deliver a cashier‘s check to the Internal Revenue Service, the United States Court of Appeals for the Seventh Circuit stated:
The disclosure of the identity of the client in the instant case would lead ultimately to disclosure of the taxpayer‘s motive for seeking legal advice. That this motive of the taxpayer is subject to the privilege is confirmed by Wigmore wherein he states “A communication as to the ultimate motive of the litigation, is equally protected with others, so far as any policy of privilege is concerned.” 8 Wigmore, Evidence, § 2313, 609-610.
“* * * [A]n attorney may not be compelled, at the instance of a hostile litigant, to disclose his retainer or the nature of the transaction to which it related, when such information could be made the basis of a suit against his client.”
A remand for further proceedings is not inconsistent with the proposition that “[t]here are good reasons why fee arrangements should not generally be protected by the attorney-client privilege.” In re Criminal Investigation No. 1/242Q, 326 Md. 1, 7, 602 A.2d 1220, 1223 (1992) (emphasis supplied). Because Maddalone was the prevailing party on the “payment of attorney‘s fees” issue in the circuit court, he should not be denied the right to have the circuit court make a fact-specific determination of “whether the revelation of the identity of the fee payer along with information regarding the fee arrangement would reveal a confidential communication between [Maddalone‘s counsel] and the fee payer.”
Notes
“(3) [The Committee] may appoint a special committee and delegate to that committee the authority specified in § 2-408 (subpoena power and circuit court enforcement) of this subtitle.”
“(b) Enforcement.—If a person fails to comply with a subpoena issued under this section or fails to testify on any matter on which the person lawfully may be interrogated, on petition of a member of the Committee, a circuit court may pass an order directing compliance with the subpoena or compelling testimony and may enforce the order by proceedings for contempt.”