author: WILNER, J.

text:
    132 A.3d 379
    Terry BRADLEY v. CONSTRUCTION LABOR CONTRACTORS, et al.
    No. 2041,
    Sept. Term, 2014.
    Court of Special Appeals of Maryland.
    Feb. 24, 2016.

      David K. Stesch (Law Office of Seymour R. Goldstein, on the brief), Baltimore, MD, for appellant.
    E. Meredith Schreibfeder (Jamie L. DeSisto, Thomas, Thomas & Hafer, LLP, Baltimore, MD), (Scott E. Massengill, Atty. Gen. of Towson, MD), (Dane A. Ruttum, Law Offices of Joseph M. Jagielski, Baltimore, MD), (Kelli M. Rives, Law Offices of Pamela Randi Johnson, Hunt Valley, MD), for appellee.
    Panel: DEBORAH S. EYLER, MEREDITH and ALAN M. WILNER (Retired, Specially Assigned), JJ.
   WILNER, J.

Before us is an action for judicial review of an order of the Workers’ Compensation Commission denying appellant’s claim for compensation on jurisdictional grounds. The Circuit Court for Baltimore County, concluding that the petition for judicial review was untimely, dismissed it. We shall vacate the judgment of the Circuit Court and remand for further proceedings.

BACKGROUND

Appellant is a carpenter who was a resident of Tennessee. In July 2010, he was employed by Innovated Construction LLC (Innovated), a Kentucky company, to come to Maryland to do work at a Sam’s Club facility in Baltimore County. He claimed that, later that month, he became employed by Construction Labor Contractors (CLC). In August 2010, he was injured when a Sam’s Club employee operating a forklift struck him.

Appellant filed a claim with the Maryland Worker’s Compensation Commission against Innovated, CLC, Rand Construction Company, and the Maryland Uninsured Employers Fund. The claim was contested, as to whether appellant was a “covered employee” and as to who was appellant’s employer for purposes of the Workers’ Compensation law. Neither the claim nor any of the initial responses to it have been included in the record, so the precise articulation of those issues, as first presented to the Commission, is unclear.

In an order dated December 8, 2010, the Commission, through Commissioner Macleay, concluded that Innovated was the correct employer but that, because appellant was a Tennessee resident and Innovated was a Kentucky company, the Maryland Commission had no jurisdiction, and, for that reason, the claim was disallowed. Thus began the saga that followed.

The Workers’ Compensation Law provides two options, other than acquiescence, when a party is aggrieved by a Commission decision. Md.Code § 9-726(a) of the Labor and Employment Article (LE) permits a party, within 15 days after the decision, to file with the Commission a written motion for a rehearing. Alternatively, LE § 9-737 permits an aggrieved party, within 30 days after the mailing of the decision, to file an action for judicial review in accordance with the Rules in Title 7 of the Maryland Rules. Appellant chose the first option. On December 23, 2010, he filed a request for rehearing, complaining that Commissioner Macleay had not properly applied the applicable statute (LE § 9-203(b)(l)) in dismissing his claim because Innovated had no workers’ compensation insurance applicable to injuries sustained in Maryland.

On January 11, 2011, Commissioner Macleay filed a memorandum stating that, following review of the request, the Commission had decided to schedule the matter for a rehearing, and, on February 8,2011, the Commission sent notice that the rehearing would be held on April 13, 2011. On April 7, however, upon a joint request, a continuance was granted. The reason stated for the requested continuance was that the existence, vel non, of workers’ compensation insurance applicable to injuries occurring in Maryland may resolve the claim and, in that regard, Auto Owners Mutual Insurance Company (Auto Owners), Innovated’s workers’ compensation insurer, was being impleaded as a party. On July 7, 2011, however, before the rehearing was rescheduled, Commissioner Macleay issued an order noting the requested rehearing but ordering the denial of appellant’s claim. No reasons were given in the order and no explanation for it appears in the record. It was simply a one-sentence denial.

At that point, appellant could have filed a petition for judicial review, but he did not do so. Instead, on July 22, 2011, he filed with Commissioner Macleay another request for rehearing. As he had done in his initial request for rehearing, he argued that the core issue was whether, under LE § 9-203(b)(1), workers’ compensation was available to him for injuries suffered in Maryland and, in that regard, stated that he had filed a claim with Auto Owners to determine that issue but had not yet received a response. He conceded that, if there was coverage for an accident occurring in Maryland, he could file a claim in either Tennessee or Kentucky and, in that event, the Maryland Commission would have no jurisdiction but, if not, he was entitled to file a claim in Maryland. Dismissal of his Maryland claim, he contended, was premature, and he again requested a hearing.

Again, he had some temporary success. On January 19, 2012, the Commission issued a notice of rehearing scheduled for February 28, 2012, and a hearing was, in fact, held that day, apparently before Commissioner Vincent. It came to no avail, however, for, on March 1, 2012, Commissioner Vincent issued a brief order affirming the order of December 8, 2010. No reasons were given. The argument made by the three alleged employers was that the order of December 8, 2010 had become final when no petition for judicial review was timely filed. There is a document in the Commission record, shown as received by the Commission on July 25, 2011, from Auto Owners evidencing workers’ compensation insurance for Innovated covering injuries sustained in Kentucky and 23 other States, but not Maryland. No mention was made of that document in Commissioner Vincent’s order, but it certainly suggests that the order was erroneous.

On March 16, 2012, appellant filed a pro se petition for judicial review of the December 8, 2010, December 23, 2010, July 7, 2011, and March 1, 2012 Commission decisions. Innovated, along with the impleaded Auto Owners, filed a motion for summary judgment, arguing that (1) the Commission had no jurisdiction to further review its order of December 8, 2010, which had become final when no timely petition for judicial review was filed following the July 7, 2011 order, and (2) the petition for judicial review was untimely. CLC, Rand Construction Co., and their insurers joined in that motion.

In November 2012, Innovated and Auto Owners formally withdrew their motion. Nonetheless, a hearing proceeded on the motion in December 2012 before Judge Patrick Cavanaugh at the instance of the other employers and insurers who had joined in the motion, and, on December 13, 2012, Judge Cavanaugh granted the motion. The order granting the motion did not mention Innovated or Auto Owners but treated the order as applying only to the other employers and insurers. Appellant filed an appeal. On February 19, 2013, Judge Cavanaugh, noting that the “line” by Innovated and Auto Owners withdrawing their motion was not in the file when he granted the motion, struck the order, whereupon this Court dismissed the appeal as moot — there then being no judgment in the case.

To put the wobbly train back on the track, CLC and Hartford, its insurer, filed a motion to revise Judge Cavanaugh’s order striking the order granting the motion for summary judgment, and Innovated and Auto Owners refiled their motion for summary judgment. All of that came before Judge John Fader, Judge Cavanaugh having retired. The trek through the Circuit Court came to an end on October 8, 2014, when Judge Fader dismissed the petition on the ground that it had not been timely filed. He concluded that the 30-day period allowed for the filing of a judicial review action commenced on July 7, 2011, when, in response to the first request for rehearing, Commissioner Macleay affirmed the denial of the claim, and that that period cannot be extended by the filing of another request for rehearing. That is the issue now before us.

DISCUSSION

The judgment under review is the order dismissing the petition as untimely. Whether the court was right or wrong is a pure issue of law, of statutory construction. No discretion is involved. The standard of review is whether the court was legally correct in its conclusion; no facts bearing on that decision were in dispute. Woznicki v. GEICO, 443 Md. 93, 108, 115 A.3d 152, 161 (2015).

Appellant’s position — that the 30-day period for filing a petition for judicial review did not commence until the mailing of Commissioner Vincent’s order of March 1, 2012 — rests on his reading of LE § 9-726, dealing with rehearings before the Commission. Several provisions of that section are relevant. Section 9-726(a) permits a party to file a motion for rehearing within 15 days after the “date of a decision by the Commission.” Subsection (d) contains three relevant provisions. First, it commands that, even if an “appeal” — i.e., a petition for judicial review — is pending, the Commission shall promptly rule on the motion. Second, it provides that the Commission may decide a motion for rehearing without granting a hearing on the motion. Third, it permits the Commission to grant a motion for rehearing only on grounds of error of law or newly discovered evidence.

Section 9-726(e) provides that “[i]f the Commission grants a motion for rehearing, the Commission promptly shall hold the rehearing and pass an appropriate order” even if an action for judicial review sought by another party is pending. Finally, for our purposes, section (f) provides that, if a party files a motion for rehearing, the time for filing an action for judicial review starts on “the date on which the Commission mails notice of the denial of the motion for a rehearing” or, if the Commission grants the motion, “the date on which the Commission mails notice of an order under subsection (e) ...”

Appellant views § 9-726(e) as mandatory — if the Commission grants a motion for rehearing, which it does not have to do but which he claims it did in this case, it must hold a rehearing before entering an order resolving the issue(s) raised in the motion. Commissioner Macleay’s order of July 7, 2011 purporting to deny the claim did not comply with that requirement, prompting appellant to remind the Commissioner of that fact in order that he might then hold the statutorily mandated hearing. In fact, he points out, that is what occurred. That, appellant notes, was the one and only hearing held on his first motion for reconsideration, which is why the order entered on March 1, 2012 was the effective ruling on that motion, thus commencing the time for filing his action for judicial review.

Appellees, of course, have a different view, which contains two prongs. They believe that a decision to grant a rehearing is revocable by the Commission — that the Commission properly may decide, prior to actually holding a rehearing that it said it would hold, that one is unnecessary and may simply deny the requested relief, which is what the Commission did on July 7, 2011. Appellees do not read § 9 — 726(e) quite so literally as appellant. As a second prong, appellees construe § 9-726 as allowing an aggrieved party to file only one motion for rehearing, which the Commission may decide with or without a hearing. To permit the filing of successive motions for rehearing, each contesting the loss of its immediate predecessor, could stay a final Commission decision and the time for filing a petition for judicial review indefinitely, which could not have been the legislative intent. The July 7, 2011 order, in their view, terminated the case before the Commission and both the second motion for rehearing and everything that followed from it was a nullity, or, at least, had no effect on the finality of the July 7 order.

A motion for rehearing under LE § 9-726, when properly parsed, seeks three forms of relief from the Commission. First, it asks the Commission to agree to reconsider the ruling complained of — to rethink what it has done. That is in the nature of a threshold. Second, it asks the Commission to change that ruling in some way. That is the ultimate form of relief sought. Third, it seeks an opportunity to appear before the Commission to explain and argue why the Commission should grant the other two forms of relief — why it should reconsider what it did and why it should do something else.

Section 9-726 is unusual in the way it deals with that third element. For one thing, it speaks of a motion for rehearing, not a motion for reconsideration. Although subsection (d) makes clear that the Commission does not have to hold a hearing on the motion but may grant or deny the ultimate relief requested based on the content of the motion and any responses to it, subsection (e), as noted, provides that, if the Commission “grants a motion for rehearing, the Commission promptly shall hold the rehearing and pass an appropriate order.”

The question raised by that provision, in light of what occurred here, is whether, having granted the motion to the extent of scheduling a hearing on it, the Commission loses its discretion to decide the motion without a hearing. In other words, is a decision to schedule a hearing on the motion irrevocable?

Subsection (e) is susceptible of two different interpretations. The literal interpretation, favored by appellant, is that once the Commission decides to hold a hearing on a motion for rehearing, it must do so; it does lose its discretion to decide the motion without one. That interpretation lays stress on the words “shall hold the rehearing.”

When read together with §§ 9-726(c) and (d), however, it can have a more limited focus. Under § (c), a motion for rehearing does not stay the right of another party to seek judicial review, so it is possible for the claim to remain pending before the Commission while a judicial review action filed by another party is pending in a Circuit Court. Subsection (d)(1) anticipates that situation and requires that, even if such an action is filed (and even if it is not), the Commission shall decide the motion for rehearing promptly, with or without a hearing. The full literal language of § (e) is not that the Commission “shall hold the rehearing” but that it “promptly shall hold the rehearing.” (Emphasis added). We cannot ignore the adverb. There is a natural presumption that the Legislature does not use words in vain, and we therefore must avoid reading a statute in such a way as to render a word or phrase superfluous. Tracy v. State, 428 Md. 1, 19, 31 A.3d 160 (2011); Kalman v. Fuste, 207 Md.App. 389, 403, 52 A.3d 1010 (2012).

The word “promptly” has meaning. What it signifies, when read in harmony with subsection (d), is a legislative intent that, if the Commission decides to hold a hearing, which it need not do, it must hold that hearing promptly, not that an initial decision to hold a hearing is irrevocable. A subsequent decision to proceed without a hearing, in some instances, may constitute an abuse of discretion and it may lead to a legally incorrect result, both of which can be argued in an action for judicial review, but, as we construe § 9-726, it is not forbidden.

That brings us to the effect of the July 7, 2011 order. Terse as it was, it had a dual effect. It clearly was intended as a final order of the Commission denying appellant’s claim. That is what it said — “ORDERED, that the Order of the Commission dated December 8, 2010, be and the same is hereby affirmed.” As such, it also, implicitly but necessarily, nullified the initial decision to hold a hearing on the motion. At best, we may assume that Commissioner Macleay did rethink his December 2010 order in the sense of considering the argument made in the motion) but, having done so, decided to affirm that order and to do it without a hearing. The motion for rehearing was effectively denied, from both a procedural and substantive point of view. There was nothing left to rehear.

Unquestionably, appellant could have filed a petition for judicial review at that point. That said, unlike appellees, we see nothing in § 9-726 that precludes another motion for rehearing. Section 9-726(a) expressly permits a party to file such a motion for rehearing within 15 days after “the date of a decision by the Commission.” (Emphasis added). Nowhere in that section, or any other that has been cited to us or that we can find, does it say that this can be done only once. The aggrieved party runs a risk in taking that course, however, as it does not stay the time for seeking judicial review. Section 9 — 726(f)(1) makes clear that, if a party files a motion for rehearing under § 9-726(a) and the Commission denies the motion, the time for seeking judicial review starts on the date the Commission mails notice of the denial. As we have indicated, that occurred on July 7, 2011. If the Commission had taken no action on the second motion for rehearing, appellant would have lost his opportunity to seek judicial review of the July 7 order 30 days after the mailing of the order.

The problem here is that the Commission did take action. It granted the second (July 23) motion for rehearing, set a date for that rehearing, and actually held the rehearing. Unless we would be willing to accept that, in doing so, the Commission deliberately or inadvertently set a trap for appellant, which we do not accept, the only reasonable inference to be drawn is that the Commission effectively withdrew its July 7, 2011 order so that it could actually do what it had agreed to do in response to the first motion for rehearing — hold a hearing to determine whether the December 2010 order was correct.

That decision — whether the December 10, 2010 order was correct — was not forthcoming until March 1, 2012, following the rehearing held on February 28, 2012. The March 1 order became the effective final order of the Commission, making the March 16 petition for judicial review timely. The Circuit Court erred in concluding otherwise.

JUDGMENT VACATED; CASE REMANDED FOR FURTHER PROCEEDINGS; APPELLEES TO PAY THE COSTS.

      . The text of the statute refers to this as an "appeal,” but it is not an appeal in the formal sense but rather an original action for judicial review. See Driggs Corp. v. Md. Aviation, 348 Md. 389, 399, 704 A.2d 433 (1998); Social Services v. Hayward & Dixon, 426 Md. 638, 642, n. 1, 45 A.3d 224 (2012); Beretta USA v. Santos, 122 Md.App. 168, 180, 712 A.2d 69 (1998).

      . LE § 9-203(b)(l) provides that an individual is not a covered employee while working in Maryland for an employer only intermittently or temporarily if (i) the individual and employer made a contract of hire in another state; (ii) neither the individual nor the employer is a resident of Maryland; (iii) the employer has provided workers’ compensation insurance coverage under a workers’ compensation law or similar law of another state to cover the individual while working in Maryland; (iv) the other state recognizes the extraterritorial provisions of this title; and (v) the other state similarly exempts covered employees and their employers from its law. Appellant asserted that Innovated had no workers' compensation insurance in place applicable to injuries occurring in Maryland and that 9-203(b) therefore did not apply.

      . It is not clear when, or on what basis, Rand became a party.

      . The text of sections (e) and (f) speaks of an "appeal.” For the reasons noted above, we have paraphrased that language to refer to a petition for judicial review.


source: Caselaw Access Project

author: REED, J.

license: Public Domain

text:
    132 A.3d 386
    EMPLOYEES’ RETIREMENT SYSTEM OF BALTIMORE COUNTY, v. Brandt BRADFORD.
    No. 2266,
    Sept. Term, 2014.
    Court of Special Appeals of Maryland.
    Feb. 24, 2016.

      John S. Hashim, Jr. (Michael E. Field, Co. Atty., on the brief), Towson, MD, for appellant.
    Matthew Clash-Drexler (Bredhoff & Kaiser, PLLC, on the brief), Washington, DC, for appellee.
    Panel: NAZARIAN, REED and J. FREDERICK SHARER (Retired, Specially Assigned), JJ.

       Judge Dan Friedman and Judge Christopher Kehoe did not participate, pursuant to MD. Rule 8-605.1, in the Court’s decision to report this opinion.

   REED, J.

The Employees’ Retirement System of Baltimore County, Maryland (“ERS”), appellant, seeks to reverse the decision of the Baltimore County Board of Appeals (the “Board”), which found that ERS improperly denied Police Officer Brandt Bradford, appellee, the ability to choose a particular retirement option based upon the circumstances of his 2012 retirement from the Baltimore County Police Department (“BCPD”). ERS filed a Petition for Judicial Review in the Circuit Court for Baltimore County, which affirmed the Board’s decision slightly over a year later. ERS noted timely appeal, and presents one question for our review, which we have rephrased:

Did the circuit court err in affirming the Board’s decision that the Baltimore County Code did not prevent Officer Bradford from changing his retirement option upon his second retirement from the BCPD?

For the reasons that follow, we answer in the negative, and affirm the decision of the circuit court.

BACKGROUND AND PROCEDURAL HISTORY

The facts of this case are not in dispute.

Officer Bradford joined the BCPD on December 16, 1974. On February 18,1998, he retired from the force, with approximately 23.5 years of service with Baltimore County (the “County”). In addition to his service retirement allowance provided under the Baltimore County Code (the “Code”), Officer Bradford was also entitled to select one of several “optional allowances,” which provide for different means by which the service retirement allowance is paid to a retired employee’s beneficiary after the retiree’s death. See Code § 5-1-231. Officer Bradford elected Option 4 under what was, at the time, § 23-61 of the Baltimore County Code, 1988 (now § 5-1-231 of the Baltimore County Code, 2003), which provided a fixed dollar amount to his wife in the event of his death. Shortly thereafter, he began receiving his monthly retirement allowance, which was reduced by approximately $250.00 a month, the amount designated by Officer Bradford.

Less than 18 months later, Officer Bradford was rehired by the BCPD on December 1, 1999. The record reflects that Officer Bradford was rehired pursuant to “Special Rule No. 2.14,” found in Code § 4-8-102 regarding “SPECIAL PERSONNEL RULES FOR POLICE AND FIRE DEPARTMENTS, which states:

Special Rule 2.1U- Former sworn employees.

A. Notwithstanding any other provision of these rules and subject to the conditions of this section, the Director of Human Resources, upon written recommendation from the Chief of Police, may hire former employees of the Police Department who previously have been separated from employment from any sworn position in the Department into the position of police office within twenty-four (24) months of the effective date of their separation from employment if:

1. The separation from employment is without prejudice; and

2. The employee has previously been certified as eligible for rehire.

B. The former sworn employee may be considered without further competition for the class of police officer, if a vacant position exists, subject to reasonable inquiries into the background and physical status of the employee between the time of separation from employment and application for rehire as may be deemed appropriate by the Chief of Police. The rehired employee’s anniversary date shall be the date of rehire. Time away shall be considered as leave without pay for the purposes of calculating service and longevity credit. The rehired employee’s sick leave balance at the time of resignation shall be restored unless it was used to determine the creditable service requirement, and other leave accruals shall be based on the adjusted service time. Benefits may not be earned for the time away from county service.

Essentially, the effect of Special Rule 2.14 was to place Officer Bradford in the same position he was before he had retired.

Following his return, Officer Bradford worked an additional 13 years as a police officer, giving him a total of more than 35 years of County employment.

On June 12, 2012, Officer Bradford retired from the BCPD for the second time. Once again Officer Bradford submitted a retirement application, but this time selected Option 7 for his optional allowance; an option that was not available at the time of his 1998 retirement. Option 7 reads, in pertinent part:

Code § 5-l-213(a)(7). As Officer Bradford puts it in his brief: “In other words, while County employees who choose to designate a portion of their monthly pension benefit to their beneficiaries upon their death receive a reduced monthly pension benefit, for police officers with at least 25 years of service, the County Code provides that the designation by an officer to his or her beneficiary does not reduce the officer’s monthly pension benefit.” Sergeant Cole Weston, President of the Baltimore County Fraternal Order of Police Lodge No. 4 (“FOP”), testified before the Board that Option 7 was negotiated between the FOP and the County around 1999 in order to encourage police officers to extend their careers beyond the “normal twenty year service requirement.”

Notwithstanding the fact that Officer Bradford met the eligibility requirements for Option 7 and had not begun to collect any retirement payments based on his June 2012 retirement, the Board of Trustees (“BOT”) of ERS denied his request and instead required him to select Option 4, the election he made in 1998. According to the ERS, his request was denied pursuant to Code § 5-l-231(a), which reads, in pertinent part: “A member who has elected an optional benefit may not change such election after the first payment of the member’s allowance becomes normally due, except as provided below.” In short, because Officer Bradford had already retired and already received benefits under Option 4, the ERS believed that he was no longer allowed to change his selection.

On June 11, 2012, in response to a request from the administrator of the ERS for a legal opinion on whether Officer Bradford could change his optional allowance, the County Attorney issued an interoffice memorandum, opining that “the language of the statute is unambiguous” and “[a]s the statute clearly provides that the option may not be changed after ‘first payment’ and [Officer Bradford] received more than a first payment, it clearly provides that he may not change his option.” On June 20, 2012, Officer Bradford appealed the decision to the Board.

An evidentiary hearing was held before the Board on April 4, 2013, and both sides were permitted to submit post-hearing briefs. Based on their review of the record, the Board reversed the decision of the ERS in a written opinion dated October 18, 2013, finding that § 5-l-231(a) was “not applicable” to the circumstances of Officer Bradford’s 2012 retirement. Because the Board’s reasoning is important under this case’s standard of review (discussed infra), we set out the pertinent parts of their opinion at length:

[Officer Bradford] contends that his “rehire” in 1999 effectively rendered his retirement in 1998 a nullity. [Officer Bradford’s] argument is based upon the provisions of Special Rule 2.14, supra. The argument is that upon his return to service [Officer Bradford] was no longer retired and therefore not covered by the benefits or restrictions of the retirement. While clearly [Officer Bradford] could no longer receive the monthly benefits of his retirement the question remains a[s] to whether he was forever barred from selecting a retirement option upon his second retirement which did not exist at the time of his first retirement. The County Code does not specifically address this situation.

In opposition to the foregoing the County Office of Law argues that a “plain reading” of Code section 5 — [1—]231 (a) establishes that a retiree’s receipt of a retirement allowance forecloses any future benefit option selection. The Office of Law contends the Baltimore County [ERS] is an administrative agency and therefore deference should be given to the ERS with respect to its own regulations and orders. It is noteworthy that the retirement decision in this matter was made by the Baltimore County Board of Trustee[s] which was established pursuant to Article 3, Title 3, Subtitle 9 of the Baltimore County Code for the purpose of administering the Baltimore County Retirement System.

Irrespective of which of the two foregoing County entities is considered as an agency, the courts have recognized that that [sic] the expertise of an agency in its own field should be respected. Salerian v. Md. State Board of Physicians, 176 Md.App. 231 [932 A.2d 1225] (2007). However, agency decisions receive no special deference on questions of law, which we review de novo. Talbot County v. Miles Point Property, LLC, 415 Md. 372, 384 [2 A.3d 344] (2010).

The essential first inquiry in a matter of statutory interpretation is the plain meaning of the language of the statute.

Section 5-1-231 is silent as to effect of a rehire of a sworn police officer pursuant to Special Rule 2.14 (supra). Likewise Special Rule 2.14 is silent as to the intended effect of an employee’s rehire upon past and future retirement option selection. A plain reading of Section 5-1-231 clearly bars a retiree from making certain option selections after the first receipt of retirement allowances absent a finding by this Board that the language of Section 5-1-231 creates an ambiguity as to the intended effect of the law as drafted by the Baltimore County Council.

In this case it appears that there is an ambiguity in the law. A rehired employee pursuant to Special Rule 2.14 is clearly no longer retired. As such, is an employee considered a retiree at all? The provisions of Special Rule 2.14(b) create a situation in which the period of retirement is specifically treated as “leave without pay for the purposes of calculating service and longevity credit.” The net effect of the provision would appear to be that the Appellant and other sworn officers similarly situated have an opportunity to change the nature and value of their retirement conditions based upon the continuation of their employment after the period of leave without pay.

The reasoning of the ERS as contained in the June 11, 2012 legal opinion from the County Office of Law is as follows as it concerns the effect of Special Rule 2.14 and the provisions 5-1-231 of the County Code:

“It may be argued that later enacted law should be read as affording Group 4 retires [sic] the right to change options. Courts also hold that statutes should not be read in a vacuum and that we should consider the larger statutory scheme when considering a statute that otherwise appears to be clear and unambiguous, (citations omitted)”

The Maryland Court of Appeals has made it clear that when a body is engaged in statutory interpretation, its goal is to effectuate the intent of the Legislature. Mayor and Town of Oakland v. Mayor and Town Council of Mountain Lake Park, 392 Md. 301, 316, 896 A.2d 1036, 1045 (2006). Where, as in the instant case, a perceived ambiguity in the law exists, a reviewing court then turns its attention to other tools of statutory interpretation including: the construction of the statute, the relation of the statute to other laws in a legislative scheme; the legislative history and [t]he general purpose and intent of the statute. Lewis v. State, 348 Md. 648, 653 [705 A.2d 1128] (1998).

The operative law before this Board is Special Rule 2.14. It was enacted after Section 5-1-231 of the Code. With the enactment of Special Rule 2.14 there was no accompanying language concerning the effect of a retired police officer returning to duty beyond those provisions above cited [sic ]. It appears to this Board that the underlying “legislative scheme” was to encourage retired officers to return to duty in exchange for their reinstatement as sworn officers with their prior retirement being treated as leave without pay. Clearly if one has received monetary retirement benefits which are no longer considered retirement benefits it can be interpreted as the legislative body’s intent to render the prior retirement a nullity. Based upon this reasoning the Board concludes that the provisions of 5-1-231 of the County Code are not applicable to the instant situation where a sworn police officer returns to active service with the Police Department pursuant to Special Rule 2.14.

ERS filed a timely petition for judicial review, and on December 12, 2014, a hearing was held in the Circuit Court for Baltimore County. That same day, after hearing arguments from each side, the circuit court issued an order affirming the Board’s decision, for the following reasons as stated on the record during the hearing:

So, the facts in this case are that the employee, Officer Bradford retired in 1998. He was rehired by the county almost two years later, in 1999. In other words he was if you will un-retired. He was no longer retired. He was employed again. And the officer worked another thirteen years with the county. And during that time he was not receiving retirement benefits. In June of 2012 the employee retired again and in — the June, 2012 retirement was a new and distinct retirement event. He had been re-employed. Stopped retirement benefits. He was not retired. Was working and he retired a new, a second time, in June of 2012. Again, I believe this is a, a [sic] new retirement event. So, reading together Section 5 — 1—214(b) and Section 5-1-231 of the retirement allowance or the retirement options are made quote, “upon retirement by” by a quote, “a member” who may elect one of the seven options. Again, the member may make his or her election of an option under Section 5-1-231 at the time of his or her retirement. Officer Bradford was quote, “a member” at that time. He was not yet a retired member. And this was, June of 2012 was at the time of his retirement under, in fact and under the statute. In this case Officer Bradford’s retirement date is June 30, 2012. At that time I’m told today [ERS’s counsel] doesn’t believe that Officer Bradford had received his first payment of retirement allowance with respect to his retirement in June of 2012. Therefore, the language of Section 5-1-231 regarding changing an election does not apply and does not bar his election of option 7.

On January 12,2015, ERS noted a timely appeal.

DISCUSSION

A. Parties’ Contentions

ERS’s primary argument is that the circuit court erred in affirming the Board’s decision to allow Mr. Bradford to change his retirement option, “when the plain and unambiguous language of County Code § 5-1-231 precludes such a change.” In ERS’s view, because § 5-l-231(a) explains that the only exceptions to the general prohibition are found in § 5-1-231(b) and (c), and neither of those subsections are applicable to Officer Bradford, Officer Bradford should not be allowed to change his option now. ERS contends that Officer Bradford’s reliance on Special Rule 2.14 is “misguided,” because that rule is “a personnel rule in Article 4 of the Baltimore County Code and not a retirement system statute in Article 5 of the Baltimore County Code.” ERS concludes by arguing that “[d]espite the considerable weight traditionally given in Maryland to an administrative agency’s interpretation and application of the statute the agency administers, ... the Board of Appeals explicitly gave no deference” to ERS, and that error was further compounded when the circuit court “gave only lip service to judicial deference as it went to extraordinary lengths to avoid the plain and unambiguous language of § 5-1-231.”

Officer Bradford argues that the Board correctly ruled in his favor, because § 5-1-231 applies only to retirees, and at the time he opted for Option 7, he was an active employee with more than 30 years of sworn service. Officer Bradford contends that ERS’s interpretation would “lead to absurd and harsh results and would render meaningless parts of the County Code,” because to interpret § 5-1-231 to preclude Officer Bradford from changing his option now would invalidate the Code’s “mandate” in Special Rule 2.14 that “a rehired employee’s retirement is to be converted to a leave without pay status.” Finally, Officer Bradford argues that ERS’s argument that neither the Board nor the circuit court afforded sufficient deference to its interpretation of § 5-1-231 is mistaken, because (1) it is the Board’s decision that is to be given deference, and (2). ERS’s claim that it interpreted its own statute is “belied by the fact that the interpretation was not their own but instead performed by a third party, the Baltimore County Office of Law, who has no agency expertise in administering this statute.”

B. Standard of Review

It is well established that “[a] court’s role in reviewing an administrative agency adjudicatory decision is narrow,” and “limited to determining if there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law.” Maryland Aviation Administration v. Noland, 386 Md. 556, 571, 873 A.2d 1145 (2005) (quoting Board of Physician Quality Assurance v. Banks, 354 Md. 59, 67-69, 729 A.2d 376 (1999)). It is equally well established that a “reviewing court must ‘look through’ the judgments of the preceding reviewing courts, and examine the agency’s decision.” Employees’ Retirement System of City of Baltimore v. Dorsey, 430 Md. 100, 110, 59 A.3d 990 (2013). “With respect to the agency’s conclusions of law, a certain amount of deference may be afforded when the agency is interpreting or applying the statute the agency itself administers.” Id. at 111, 59 A.3d 990. “We are under no constraint, however, ‘to affirm an agency decision premised solely upon an erroneous conclusion of law.’ ” Id. (quoting Thomas v. State Ret. & Pension Sys., 420 Md. 45, 54-55, 21 A.3d 1042 (2011)).

C. Analysis

As an initial matter, we feel it is important to first point out that in this case, the conclusion of the “agency” for our review is that of the Board of Appeals, not ERS. See, e.g., Hill v. Baltimore County, Md., 86 Md.App. 642, 650-52, 587 A.2d 1155 (1991) (discussing the role of the Baltimore County Board of Appeals as designated by the County Charter). While ERS understandably urges us to afford its interpretation a degree of deference of “considerable weight,” we are unpersuaded. As this Court noted in Hill, “Sections 602 and 603 of the [Baltimore County] Charter provide for a de novo hearing and the ability to ‘decide’ all the issues before the Board of Appeals. The Charter does not limit how the Board of Appeals may decide the issues.” Hill, 86 Md.App. at 651, 587 A.2d 1155. Thus, that the Board “explicitly gave no deference to [ERS] in its decision and order” is of no moment, and any ‘deference’ to be allotted in this case belongs to the Board, not to ERS or the County Attorney.

Moreover, ERS misreads Comptroller of Treasury v. Blanton, 390 Md. 528, 890 A.2d 279 (2006), the case it uses to support its assertion that it is the agency to be afforded deference, not the Board. In Blanton, the taxpayers appealed their income tax assessment by filing a complaint with the Comptroller. Id. at 531, 890 A.2d 279. A hearing officer from the Comptroller’s office affirmed the assessment, and the taxpayers again appealed. Id. The hearing officer’s decision was affirmed by the Maryland Tax Court, but, after the taxpayers filed a petition for judicial review, the Tax Court’s decision was reversed by the Circuit Court for Baltimore County. Id.

The Comptroller appealed, and, after issuing a writ of certiorari on its own initiative, the Court of Appeals reversed the circuit court’s decision. Blanton, 390 Md. at 531, 890 A.2d 279. The Court explained that “[u]nless the Tax Court’s decision was erroneous as a matter of law, or its conclusion was not supported by substantial evidence, we must affirm that decision.” Id. at 535, 890 A.2d 279 (emphasis added). Clearly, the only deference paid by the Court was to the Tax Court, even though the initial decision in question was made by the hearing officer from the Comptroller’s office. Here, instead of a hearing examiner, the decision was made by the BOT of ERS. That decision was appealed to the Board, and later to the circuit court for judicial review. As such, it is the Board’s interpretation and application of the statute that will be given “considerable weight,” and not that of ERS. See Board of Physician Quality Assurance, 354 Md. at 69, 729 A.2d 376. Accordingly, our review is solely regarding the decision of the Board to allow Officer Bradford to switch his retirement option to Option 7.

Here, because the facts are not in dispute, we review only the legal conclusions of the agency’s statutory interpretation. See Carven v. State Retirement & Pension System of Maryland, 416 Md. 389, 406, 7 A.3d 38 (2010) (“An agency decision based on regulatory and statutory interpretation is a conclusion of law.”). In Carven, (now Chief) Judge Barbera explained how a reviewing court determines whether such an interpretation is an erroneous conclusion:

“[E]ven when reviewing an agency’s legal conclusions, an appellate court must respect the agency’s expertise in its field.” Crofton Convalescent Ctr. v. Dep’t of Health & Mental Hygiene, 413 Md. 201, 215, 991 A.2d 1257, 1265 (2010). When an agency interprets its own regulations or the statute the agency was created to administer, we are especially mindful of that agency’s expertise in its field. See Adventist Health Care [v. Maryland Health Care Com’n ], 392 Md. [103,] 119, 896 A.2d [320,] 330 [ (2006) ] (“Administrative agencies possess an ‘expertise’ and, thus, have a greater ability to evaluate and determine the matters and issues that regularly arise, or can be expected to be presented, in the field in which they operate or in connection with the statute that they administer.”); Md. Aviation Admin. v. Noland, 386 Md. 556, 573 n. 3, 873 A.2d 1145, 1155 n. 3 (2005) (“[An] agency’s interpretations and applications of statutory or regulatory provisions which the agency administers should ordinarily be given considerable weight by reviewing courts.” (internal quotation marks and citations omitted)). “Despite [this] deference, it is always within our prerogative to determine whether an agency’s conclusions of law are correct.” Crofton Convalescent, 413 Md. at 215, 991 A.2d at 1265 (internal quotation marks and citations omitted).

Keeping in mind the deference owed to administrative decisions, we shall conduct an independent review of the regulations and statutory provisions upon which the Board rests its decision to determine whether the Board’s decision is “ ‘plainly erroneous or inconsistent with the regulation.’” Id., 991 A.2d at 1265 (quoting Md. Transp. Auth. v. King, 369 Md. 274, 288-89, 799 A.2d 1246, 1254 (2002)); see also Noland, 386 Md. at 574 n. 3, 873 A.2d at 1156 n. 3 (“[A] reviewing court must determine if the administrative decision is premised upon an erroneous conclusion of law.” (internal quotation marks and citations omitted)).

Carven, 416 Md. at 406-07, 7 A.3d 38.

With respect to statutory interpretation, the Court of Appeals has frequently reiterated the principles that guide such a review, which the Court has summarized as follows:

• give effect to legislative intent

• look first to the “ordinary, plain meaning” of the language

• do not add or delete language

• do not apply forced or subtle interpretations

• keep in mind the statutory context

• consider the purpose, aim, or policy of the Legislature

• avoid constructions inconsistent with common sense

• presume that each section is to work harmoniously with others

TransCare Maryland, Inc. v. Murray, 431 Md. 225, 232, 64 A.3d 887 (2013) (citation omitted).

Looking to the plain language of § 5-1-231, we agree with ERS, insofar as its belief that the language of the section itself — in isolation — is “plain and unambiguous.” Again, that section provides, in pertinent part:

In lieu of the disability or service allowances payable under the provisions of this subtitle, any member may, prior to the first retirement allowance payment normally due, elect a retirement allowance of equivalent actuarial value in one (1) of the optional forms set out below.... A member who has elected an optional benefit may not change such election after the first payment of the member’s allowance becomes normally due, except as provided below.

Code § 5-l-231(a). The exceptions referenced in subsection (a) are found in subsections (b) and (c), which allow for certain retired members who chose Options 2 or 3 (subsection (b)), or for certain retired members who chose Options 5 or 6 (subsection (c)), to change their options after they have already received their first payment. See Code § 5-l-231(b)-(c). It is undisputed that Officer Bradford received payments under Option 4 before returning to work, and that Officer Bradford does not fit into the exceptions of § 5-l-231(b)-(c).

We do not agree with ERS, however, that the circuit court “went to extraordinary lengths” to “avoid” the plain language of § 5-1-231, or even, as ERS puts it, that “the language of § 5-1-231 is so clear that deference is unnecessary.” As the Court of Appeals has stated, “[t]he ‘plain meaning’ of a statute can only be assessed in the context in which it appears.” Patton v. Wells Fargo Financial Maryland, Inc., 437 Md. 83, 96-97, 85 A.3d 167 (2014). Here, the Board correctly noted in its opinion that the ambiguity in this case exists not within the language of § 5-1-231 itself, but rather how that language applies to an officer in Officer Bradford’s situation. Had Officer Bradford not returned to the BCPD in 1999, there would be no ambiguity, and Officer Bradford would not be able to change his allowance option now, as he fits into neither of the listed exceptions.

It is undisputed, however, that Officer Bradford did in fact return to the BCPD for 13 additional years, pursuant to Special Rule 2.14, before retiring a second time in 2012. The question then becomes: what is — as the Board called it — the “net effect” of § 5-1-231 and Special Rule 2.14? In order to resolve that ambiguity, “we turn to our arsenal of other statutory interpretation forensic tools.” Maryland Ins. Comm’r v. Central Acceptance Corp., 424 Md. 1, 36-37, 33 A.3d 949 (2011) (citing Breslin v. Powell, 421 Md. 266, 287, 26 A.3d 878 (2011)).

First, we agree with the Board that Special Rule 2.14 is the “operative law” in terms of this review. “Under the standard rules of statutory construction, to the extent that there is a conflict between the two provisions, the later enacted provision ... prevails.” Patton, 437 Md. at 107, 85 A.3d 167. Special Rule 2.14 was enacted by the County Council of Baltimore County on May 3, 1999, as Bill No. 35-99, as “an act concerning personnel law of Baltimore County.” Subsection (a) of the rule, in effect, allows the County to rehire a former sworn officer within 24 months of the officer’s separation, provided the separation was “without prejudice” (i.e., not for disciplinary reasons) and the officer met certain eligibility requirements. Especially relevant here is subsection (b), which essentially explains the circumstances of an officer’s rehiring under the Rule. It provides, in pertinent part:

The rehired employee’s anniversary date shall be the date of rehire. Time away shall be considered as leave without pay for the purposes of calculating service and longevity credit. The rehired employee’s sick leave balance at the time of resignation shall be restored unless it was used to determine the creditable service requirement, and other leave accruals shall be based on the adjusted service time. Benefits may not be earned for the time away from county service.

(emphasis added). Clearly, Special Rule 2.14 was written to ensure that a returning officer will be treated in almost the exact same way he was before he left. As the circuit court pointed out, Special Rule 2.14’s language notably addresses only the effect on the separation from employment, and has no such language with respect to a retirement. Those involved in the negotiations surely would have recognized that — at the very least — a large portion of those officers with a “separation” that was “without prejudice” would have been retired, and if they wanted to ensure that any subsequent retirement was to be in the exact circumstances of the first, they could have done so.

Furthermore, we believe this result is in accordance with the principle that, “[wjhenever possible, the various parts of a statute should ‘be reconciled and harmonized to be consistent with the statute’s object and scope.’ Our interpretation should avoid illogical, absurd, or anomalous results.” Blackburn Ltd. Partnership v. Paul, 438 Md. 100, 122, 90 A.3d 464 (2014) (citation omitted). In our view, the record reflects that the statutory scheme was enacted by the County as a way to entice officers into staying with the BCPD beyond the twenty-year service requirement.

For example, Code § 5-l-214(b)(2), provides that an officer that is rehired pursuant to Special Rule 2.14 is not eligible to receive an increased service retirement allowance until the officer has stayed an additional five years — in the County Attorney’s words, “a sort of vesting requirement.” Section 5-l-214(b)(2) was enacted in Bill No. 38-99, which passed as a companion bill with Bill No. 35-99, the bill that enacted Special Rule 2.14. While ERS is correct in asserting that § 5 — 1—214(b)(2) is not an additional exception to § 5-l-231(a), it does not appear to purport to be one. It does, however, support the Board’s finding that “the underlying ‘legislative scheme’ was to encourage retired officers to return to duty in exchange for their reinstatement as sworn officers with their prior retirement being treated as leave without pay.”

Moreover, we are unpersuaded by ERS’s reliance on § 5-1-231(b) and (c) as proof that “[t]he County Council specifically chose not to allow a member who chose Option 4 to change his or her election after receiving a first payment, although the Council clearly could have and knew how to do so as evidenced in subsections (b) and (c),” for two reasons.

First, as we have pointed out, when Officer Bradford was rehired pursuant to Special Rule 2.14, he was just that— rehired. Officer Bradford was reinstated at the same level he was, and worked an additional 13 years before retiring in 2012. To interpret § 5-1-231 as requiring him to keep Option 4 after the County, for all intents and purposes, treated him as a fully-restored police officer for an 13 extra years would be the “illogical, absurd, and anomalous result” we seek to avoid in interpreting statutes.

Second, ERS’s invocation of the maxim of statutory construction known as expressio unius est exclusio alterius— meaning that the expression of one thing implies the exclusion of another thing not mentioned — is belied by the language of § 5-l-231(b) and (c). Subsection (b) allows “retired members” who chose Option 2 or 3 to change their option in the event of the death of or divorce from their beneficiary, and subsection (c) allows “retired members” who chose Option 5 or 6 to designate a new beneficiary and change their option if their beneficiary has died or been divorced and had their allowance recalculated as a result. See Code § 5-l-231(b)-(c). Clearly, those exceptions were designed only for “retired members” who were remaining retired — which, at the time he attempted to switch options, Officer Bradford was not. By including language that applied to retired members, it does not automatically follow that the County Council was impliedly excluding members who were once, but were then no longer, retired.

CONCLUSION

For the above reasons, we agree with the Baltimore County Board of Appeals. The circumstances of Officer Bradford’s rehiring meant that his 1998 retirement was “rendered] ... a nullity,” and therefore, he should not be prevented from changing his retirement option. Accordingly, we affirm the decision of the Circuit Court for Baltimore County.

JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED; COSTS TO BE PAID BY APPELLANT.

      . Unless otherwise noted, all Code references are to the Balt. Co. Code, 2003.

      . We note that after Officer Bradford’s hearing in front of the Board, but before the Board issued its opinion, it appears that the Baltimore County Council passed a bill that changed the procedure by which an employee can appeal a decision of the BOT. See Baltimore County Council Bill No. 7-13 (Passed on January 22, 2013). Article 5 now provides that an employee who wishes to appeal the decision of the BOT now must appeal that decision to the Baltimore County Office of Administrative hearings first, and only then may an aggrieved party appeal to the Board of Appeals. See Code § 5-1-2200.2. This does not affect Officer Bradford's appeal, however, because the bill applied prospectively from the effective date of the bill, on March 4, 2013. See Bill No. 7-13 §§ 2 & 3.

      . We also note that we disagree with ERS’s implied assertion that Officer Bradford’s reliance on Special Rule 2.14 is "misguided,” simply because Special Rule 2.14 appears in Article 4, rather than Article 5. To view the optional allowance section in such extreme isolation would be illogical for any number of reasons; not least of which being that Article 5 is not, and does not purport to be, a self-contained article within the Code.


author: KRAUSER, C.J.

text:
    132 A.3d 397
    Kevin COLLINI v. STATE of Maryland.
    No. 2390,
    Sept. Term, 2014.
    Court of Special Appeals of Maryland.
    Feb. 24, 2016.

      Cynthia E. Young, Annapolis, MD (Thomas M. Donnelly, Baltimore, MD), on the brief, for appellant.

      Christopher Mason (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for appellee.
    Panel: KRAUSER, C.J., BERGER, LEAHY, JJ.
   KRAUSER, C.J.

Convicted, after a jury trial in the Circuit Court for Harford County, of first and second degree assault, Kevin Collini, appellant, presents two questions for our review:

I. Did the trial court err in remedying a Batson violation by seating a properly struck prospective juror instead of the prospective juror whom the court found was improperly struck?

II. If preserved, did the trial court impose an illegal sentence when it took into account Collini’s invocation of his Fifth Amendment right to remain silent?

Because we conclude that the court erred in seating a properly struck prospective juror in an attempt to remedy a purported Batson violation, we shall reverse the judgment of the circuit court, which renders the second question posed by Collini — whether the trial court erred by imposing an illegal sentence — moot.

I.

The testimony adduced at trial established that, at about 9:45 p.m., on the evening of October 20, 2013, a violent altercation took place between Kevin Collini, appellant, and his neighbor, Michael Folino. The two men were then occupying different and separate apartments in a house subdivided into separate living units. The incident erupted when Collini, upon returning home that evening, noticed that several political yard signs, which he had posted on the property, were gone. Then, seeking the whereabouts of the missing signs, he sent a text message to Folino, asking him whether he knew where the signs were. Folino, who had tossed the signs into a nearby woods earlier in the day, replied, in a text message, that he had removed the signs. In response to that bold admission, Collini threatened, by text message, that, if the signs were not returned, the police would be called. What happened after that testy electronic exchange was, as the following recitation of relevant testimony discloses, vigorously disputed at trial.

Collini testified, at trial, that, after exchanging text messages with Folino, he was in his living room, using a box-cutter to trim some paper, when he heard a loud “banging” at his front door. After retracting the blade of his box-cutter and placing it in his pocket, he opened the door. Standing there, according to Collini, was Folino, wearing a “Buck knife” on his belt.

After a brief and angry exchange of words, Collini turned and re-entered his home, whereupon Folino purportedly followed him into his apartment and, there, physically assaulted him. That led to a struggle between the two men, during which Collini was repeatedly kicked and struck by Folino. It was, in the midst of receiving those body blows, testified Collini, that he pulled the box-cutter out of his pocket and sliced Folino’s chest with it. Wounded, but still on his feet, Folino fled; and Collini, therefore, called “9-1-1” for help.

Folino’s testimony, however, presented a very different version of what occurred that evening after the two men exchanged text messages. He testified that, roughly fifteen minutes after his text message exchange with Collini, he heard a “banging” at the front door of his apartment. When he opened that door, “somebody lunged at [him],” at which time Folino felt something “hit [him] in the chest.” The attacker then turned around and ran out of the house into the yard. Now, realizing that his assailant was Collini, Folino, though wounded, gave chase. That chase ended when Collini ran back into his apartment.

But, moments later, Collini reappeared, holding a baseball bat and “some kind of razorblade or knife.” When Collini then threatened to kill him, Folino “retreated” to his apartment and called “9-1-1.” At the conclusion of that call, he went back outdoors and waited for help to arrive. While standing outside, he and Collini started shouting at each other, and that verbal exchange did not end until the police and paramedics arrived.

The only other witness to the incident who testified, at trial, was the tenant of the third apartment, Jacob Coldiron, whose testimony was consistent with Folino’s version of events, to the extent that it established that the physical confrontation at issue occurred in front of Folino’s apartment not Collini’s. Specifically, Coldiron testified that, from his basement apartment window, he could hear yelling and saw a “pair of legs” standing outside of Folino’s front door. He then observed two pairs of legs running away from Folino’s door and towards the front of the house.

When the paramedics arrived, Folino was transported, by helicopter, to Shock Trauma at the University of Maryland Hospital Center, where it took more than thirty staples to close his chest wound. Responding police officers, after interviewing both Collini and Coldiron about what had occurred, placed Collini under arrest. Collini was ultimately charged with first and second degree assault and was subsequently found guilty, by a jury, of both offenses, though the latter offense was ultimately merged into the former. In any event, Collini was thereafter sentenced to a term of twenty-five years’ imprisonment for first degree assault, with all but fifteen years of that sentence suspended.

II.

In the process of selecting twelve jurors and three alternates, the defense exercised nine of its ten peremptory challenges. Of those nine challenges, six were used to strike prospective female jurors: 9, 10, 22, 30, 41, and 42. At the time that Collini struck the last of those six prospective female jurors — that is, prospective juror 42 — eleven people had been seated as jurors, and, as the record indicates, at least nine of those jurors were male. At that point, the State objected, claiming that the defense had improperly exercised its peremptory challenges by striking women, on the basis of gender, in violation of the Equal Protection Clause and in contravention of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and J.E.B. v. Alabama ex reí. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994). The court thereupon turned to defense counsel and said, “We have only one female juror that is sitting.” Then, referring to the prospective female jurors 9,10, 22, 41, and 42, the court asked, “What are your reasons for striking [those] six individuals?”

Defense counsel explained that he struck prospective juror 9 because she had been a juror in a previous trial, during which the defendant was found guilty of murder, and that he had struck prospective juror 10 because she had a friend, who had been murdered, and that, consequently, he was concerned that, “given that it [was] a violent assault, it would be a problem for her.” Neither the State nor the court, challenged either of those explanations or, otherwise, questioned the propriety of the strikes in question. In fact, the State concedes, in its brief, “the court and State seemed to accept defense counsel’s explanations for striking [prospective] jurors 9 and 10.”

Then, turning to prospective juror 22, defense counsel stated that he struck her because she “didn’t answer any questions,” asked by the court during voir dire, and that it was his policy to strike jurors who failed to do so. That explanation led to the following exchange between the court and counsel: [State]: Your Honor, number 13 answered no questions. That was a male and the defense did not strike him.

[Defense counsel]: The reason I wanted juror 13 was because of his education level and the fact that he just appeared to be analytical. I didn’t get that kind of vibe from 22.

[Court]: Number 22 was the dental hygienist.

[Defense counsel]: Yes.

(Emphasis added.)

The court, however, rejected, what it later described as defense counsel’s “analytical versus nonanalytical” explanation for striking prospective juror 22, stating:

I don’t find that to be a nondiscriminatory reason, counsel ... It appears there has been a pattern. The reason that you gave for striking that juror was because you strike jurors that don’t provide any responses. However, the record does reflect that you have kept a male juror who did not provide any responses.

(Emphasis added.)

Then, as to the next prospective female juror — number 41— that was struck, the court asked defense counsel the basis upon which he had struck her, since she “did not provide any responses whatsoever” and had, in the court’s view, an “analytical background,” as she was a nurse. Defense counsel responded that, while prospective juror 41 admittedly had an “analytical background,” he nonetheless struck her because the instant case not only involved “medical records,” but those records were going to “[come] in by themselves,” and that he did not want someone on the jury, “who has special knowledge about the records or impressions about treatment of people.” Neither the court nor the State took issue with that explanation.

Finally, the court asked defense counsel, what was his “reason for striking the last one, number 42 who [was] still in the courtroom.” Defense counsel responded that he struck prospective juror 42 because, during voir dire, she indicated that jury duty would be a “financial hardship” for her, adding that he had thought that the court was going to strike her, along with several other prospective jurors, who indicated that it would be a “hardship” to serve on the jury. Neither the State nor the court directly responded or otherwise commented on defense counsel’s explanation for striking prospective juror 42. The court, however, then ruled as follows:

I do find that there has been a systemic striking of women by the defense. While some reasons that you have provided are nondiscriminatory, this last explanation that you provided to me concerning analytical versus nonanalytical [does] not make sense in light of some other individuals that you have selected. So, juror number 42 will be placed back on the jury.

(Emphasis added.)

III.

Collini contends that the circuit court erred in seating prospective juror 42, whom the court had not found to have been improperly struck, instead of prospective juror 22, whom the court had found had been improperly struck. The State responds that no error occurred because the trial court did, in fact, find that prospective juror 42 was improperly struck by defense counsel, and thus seating that individual was an appropriate response to a Batson violation.

Peremptory challenges play a “vital role” in “insuring” that “an impartial jury is chosen.” King v. State Roads Comm’n of State Highway Admin., 284 Md. 368, 370, 396 A.2d 267 (1979). They “permit[ ] a party to eliminate a prospective juror with personal traits or predilections that, although not challengeable for cause, will, in the opinion of the litigant, impel that individual to decide the case on a basis other than the evidence presented.” King, 284 Md. at 370, 396 A.2d 267. To that end, parties are “given wide latitude” in exercising such challenges, which they may do “for any reason or indeed for no reason.” Gilchrist v. State, 340 Md. 606, 619, 667 A.2d 876 (1995); Brice v. State, 264 Md. 352, 366, 286 A.2d 132 (1972).

“The right to exercise peremptory challenges, however, is not absolute.” Gilchrist, 340 Md. at 620, 667 A.2d 876. It is, as the United States Supreme Court declared in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), circumscribed by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. In Batson, the Supreme Court avowed that the Equal Protection Clause prohibits the use of peremptory challenges to strike prospective jurors on the basis of race. 476 U.S. 79, 106 S.Ct. 1712. This constitutional prohibition was later extended, by that Court, to proscribe the striking prospective jurors on the basis of gender in J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994).

The question before us, however, is not whether a Batson violation occurred, but whether the remedy chosen by the trial court to address that alleged violation was proper. As a trial court “has ‘the discretion to fashion a remedy for [the] Batson violation that addresses and resolves the specific harm caused by that violation,’ ” Edmonds v. State, 372 Md. 314, 331, 812 A.2d 1034 (2002) (citing Jones v. State, 343 Md. 584, 602-03, 683 A.2d 520 (1996)), we review the remedy, fashioned by the court below, for abuse of discretion. Jones, 343 Md. at 605, 683 A.2d 520.

IV.

But, before we consider the propriety of the Batson remedy selected by the court below, we must first address the threshold question of whether the court actually found that prospective juror 42 was properly struck, as the State contends that it did not. Collini disagrees, and so do we.

The relevant portion of the Batson discussion began when defense counsel was asked by the court why he struck prospective juror 22, a dental hygienist. Defense counsel explained that prospective juror 22 did not appear to be “analytical,” whereupon the court responded, “I don’t find that to be a nondiscriminatory reason, counsel.” Then, later on, near the end of the voir dire process, the court stated:

I do find that there has been a systemic striking of women by the defense. While some reasons that you have provided are nondiscriminatory, this last explanation that you provided to me concerning analytical versus nonanalytical [does] not make sense in light of some other individuals that you have selected.

(Emphasis added.)

The court was clearly not referring to defense counsel’s explanation for striking prospective juror 42 but to his earlier explication for striking prospective juror 22, as that was the only time that defense counsel explained his strike of a prospective juror by stating that the prospective juror in question — number 22 — did not appear to be as “analytical,” and that, moreover, was the only time that the court questioned the striking of a prospective juror on that basis. In fact, the record shows that neither the State nor the court took issue with defense counsel’s explanation for the striking of prospective juror 42. We, therefore, agree with Collini that the trial court was clearly referring to the striking of prospective juror 22 when it opined that the “analytical versus nonanalytical” distinction did not “make any sense in light of some of the other individuals that you selected.” Thus, the record shows that the trial court found that it was prospective juror 22 who was improperly struck and not prospective juror 42.

V.

Having established that the court found that prospective juror 42 was not improperly struck, we turn to the question of whether it was appropriate to seat that prospective juror for a Batson violation involving prospective juror 22, whom the court had found was improperly struck by the defense. And, we begin this analysis by noting, once again, “the importance of the peremptory challenge,” which the Court of Appeals has said, “requires that any significant deviation from the prescribed procedure that impairs or denies the privilege’s full exercise is error that, unless waived, ordinarily will require reversal without the necessity of showing prejudice.” King, 284 Md. at 371, 396 A.2d 267 (emphasis added).

Here, Collini was denied the full use of his peremptory strikes when the court seated prospective juror 42, whom Collini had struck. And, though Batson does place limitations on the use of these challenges, the trial court’s decision to seat prospective juror 42, a properly struck prospective juror, fails to achieve any of, what this Court has called, the “underlying purpose” of Batson that would justify abridging Collini’s right to fully exercise the peremptory strikes allotted to him by law. Elliott v. State, 185 Md.App. 692, 711, 972 A.2d 354 (2009). Such a decision cannot be said to safeguard “the venire person’s right not to be excluded on an impermissible, discriminatory basis,” as there was no finding that juror 42 was struck on the basis of race or gender. Elliott, 185 Md.App. at 711, 972 A.2d 354. Nor can the decision be said to “protect the parties’ right to a fair trial” or “preserv[e] public confidence in the system,” as it placed an individual on the jury, whom defense counsel had previously struck. Id.

Moreover, the court below had other corrective measures at its disposal, which Maryland appellate courts have recognized as appropriate remedies for a Batson violation. Indeed, upon determining that a Batson violation had occurred, when prospective juror 22 was struck, the trial court could have seated that prospective juror (see Chew v. State, 71 Md.App. 681, 704, 527 A.2d 332 (1987)); or it could have recalled all of the previously struck jurors and restarted the jury selection process from before the pattern of improper striking began (see Jones, 343 Md. 584, 683 A.2d 520); or it could have seated one of the seven remaining prospective jurors that, according to the record, were still available; and finally, if the foregoing remedies were no longer available, the court could have impaneled a new venire and begun the process of jury selection anew (see Gilchrist v. State, 97 Md.App. 55, 76, 627 A.2d 44 (1993); Jones, 343 Md. 584, 683 A.2d 520; Chew, 71 Md.App. at 704, 527 A.2d 332).

But, rather than choosing any of these remedies, which admittedly is not an exhaustive compilation of corrective measures, the court below chose, instead, to seat properly struck prospective juror 42, not because it found the strike that removed her from the venire was “unconstitutionally exercised,” but to correct what the court believed to have been an unconstitutional striking of prospective juror 22. Therefore, because “the denial or impairment of the right to exercise peremptory strikes is reversible error -without a showing of prejudice,” Whitney v. State, 158 Md.App. 519, 532, 857 A.2d 625 (2004) (internal citations and brackets omitted), we conclude that the trial court abused its discretion in seating a prospective juror, who had been properly struck, and such error requires a reversal of the judgments below.

Finally, before we leave this issue, we feel impelled to take note of another troubling feature of the jury selection procedure conducted in this case. It appears that, when peremptory challenges were made, the exercise of those challenges occurred, according to the trial transcript, in “open court” and thus, presumably, before those prospective jurors that were ultimately struck. Consequently, the court’s decision to seat a properly struck juror (number 42) placed, on the jury, an individual that knew she had been struck by the defense. She might have then assumed unfairly so in light of the decision to seat her, notwithstanding defense counsel’s strike. Such an assumption might have affected her view of defense counsel and possibly the defendant himself.

JUDGMENT OF THE CIRCUIT COURT FOR HAR-FORD COUNTY REVERSED. COSTS TO BE PAID BY HARFORD COUNTY.

      . Because the most serious offense that Collini was charged with was first degree assault, Md.Code Ann., Crim. Law § 3-202 (LexisNexis 2014), an offense that carries a maximum penalty of twenty-five years, he was entitled to ten peremptory challenges and the State was entitled to five. Md. Rule 4-313(a)(3).

      . Jurors 5, 13, 15, 16, 23, 24, 27, 31, 33, 38, and 39 were all seated on the jury when Collini struck prospective juror 42. The record does not indicate the gender of jurors 13 and 33, because the court did not state the gender of those jurors as it did with respect to the other nine jurors.

      . In Batson, the United States Supreme Court held that using peremptory challenges to exclude prospective jurors solely on the basis of race violates the Equal Protection Clause of the Fourteenth Amendment. 476 U.S. 79, 106 S.Ct. 1712. Then, in J.E.B., the Supreme Court extended Batson to prohibit the exercise of peremptory challenges on the basis of gender. 511 U.S. 127, 114 S.Ct. 1419.

      . Although the court noted that defense counsel struck six females, the court, without explanation, discussed only five of the female prospective jurors during the Batson colloquy with defense counsel and the State.

      . Specifically in its brief, the State stated that: “Although the court and the State seemed to accept defense counsel’s explanations for striking jurors 9 and 10, the same cannot be said for jurors 22, 41, and 42."

      . "The Supreme Court in Batson articulated a three-step process to be utilized by trial courts in assessing claims that peremptory challenges were being exercised in an impermissibly discriminatory manner.” Gilchrist, 340 Md. at 625, 667 A.2d 876. First, "the complaining party” must make "a prima facie showing that the other party has exercised its peremptory challenges on an impermissibly discriminatory basis, such as race or gender.” Id. Second, if the trial court determines that the complaining party has made such a showing, the party accused of employing unlawful peremptory strikes may “rebut the prima facie case” by offering a "facially valid, race [and gender] neutral explanation” for striking the excluded jurors. Id. at 625-26, 667 A.2d 876; Edmonds v. State, 372 Md. 314, 330, 812 A.2d 1034 (2002). And, in the third and final step of the three-step process, the trial court must evaluate "whether the opponent of the strike has met his or her burden of proving purposeful discrimination." Edmonds, 372 Md. at 330, 812 A.2d 1034.

      . The State’s response to Collini's explanation for striking prospective juror 42 merely consisted of: "Your Honor, I would submit that the Defendant has used seven out of his strikes, six of which were women, and that there are other people on the list.” The State did not comment on the merits of Collini’s explanation.


author: KEHOE, J.

text:
    132 A.3d 404
    Byron Alexander KELLY v. MONTGOMERY COUNTY OFFICE OF CHILD SUPPORT ENFORCEMENT, et al.
    No. 2504,
    Sept. Term, 2014.
    Court of Special Appeals of Maryland.
    Feb. 24, 2016.

      Pro Se, for Appellant.
    Karen H. Rohrbaugh (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for Appellee.
    Panel: KEHOE, LEAHY, and IRMA S. RAKER (Retired, Specially Assigned), JJ.
   KEHOE, J.

Maryland law authorizes a judgment creditor to- attach assets of the debtor to satisfy the judgment. Our attachment law has a number of exemptions. In this case, we must decide whether one such exemption is available in child support enforcement actions.

The chain of events giving rise to this appeal began in 2014 when the Montgomery County Office of Child Support Enforcement (the “Office”) sought to collect a judgment of $9,866.80 against Byron Alexander Kelly for unpaid child support. At the request of the Office, the Circuit Court for Montgomery County issued a writ of garnishment against Capital One Bank, N.A. There were two accounts in Kelly’s name at the bank with a combined balance of $2,705.05. The bank reported this information to the court and suspended activity in the accounts pending a court order.

Kelly then filed a motion to release the two accounts from the levy. He based his motion on Courts and Judicial Proceedings Article (“CJP”) § 11 — 504(b)(5), which permits a judgment debtor under certain circumstances to elect to exempt up to $6,000 in cash or other property from a levy to satisfy a money judgment. After an evidentiary hearing, the Circuit Court for Montgomery County denied Kelly’s motion and separately ordered Capital One to pay the account proceeds to the Office.

Kelly has appealed both orders and presents four questions to us. We have consolidated and reworded them as follows:

(1) Did the trial court correctly interpret the exemption contained in CJP § ll-504(b)(5) to be inapplicable in actions to collect child support arrears?

(2) Were the trial court’s findings as to the source of the funds in the accounts clearly erroneous?

We will affirm the trial court’s judgment.

Analysis

1. Were the account proceeds exempt from garnishment?

1.1. The Applicable Rules of Statutory Construction

In resolving the issues in this appeal, we will pay heed to the following guidelines of statutory interpretation:

(1) Our purpose is to “ascertain and effectuate the real and actual intent of the Legislature.” Employees’ Ret. Sys. of City of Baltimore v. Dorsey, 430 Md. 100, 112 [59 A.3d 990] (2013);

(2) In this context, “intent” means “the legislative purpose, [that is] the ends to be accomplished, or the evils to be remedied” by the statute in question, id.;

(3) We usually identify the legislative purpose by considering the plain language of the statute “within the context of the statutory scheme to which it belongs, considering the purpose, aim, or policy of the Legislature in enacting the statute.” State v. Johnson, 415 Md. 413, 421-22 [2 A.3d 368] (2010); and

(4) In the process of discerning the “statutory scheme” to which a particular statute belongs, we bear in mind that, laws passed by the General Assembly are usually written so that no provision of any statute is superfluous or meaningless. Moore v. State, 424 Md. 118, 127 [34 A.3d 513] (2011).

Finally, “[an] examination of interpretive consequences, either as a comparison of the results of each proffered construction, or as a principle of avoidance of an absurd or unreasonable reading, grounds the court’s interpretation in reality.” Town of Oxford v. Koste, 204 Md.App. 578, 586, 42 A.3d 637 (2012), aff'd, 431 Md. 14, 63 A.3d 582 (2013).

1.2. Two Statutes and Two Statutory Schemes

The question before us is how to reconcile two apparently conflicting statutes. The first is CJP § ll-504(b)(5). The “statutory scheme” which contains § 11-504 sets out means by which judgments can be enforced by judgment creditors. Section 11 — 504(b) lists various exemptions that judgment debtors may exercise to shelter assets from being seized to pay the judgment. Section 11 — 504(b)(5) states (emphasis added):

The following items are exempt from execution on a judgment:

(5) Cash or property of any kind equivalent in value to $6,000 is exempt, if within 30 days from the date of the attachment or the levy by the sheriff, the debtor elects to exempt cash or selected items of property in an amount not to exceed a cumulative value of $6,000.

The second statute is Family Law Article (“FL”) § 10-108.3(b)(1). It provides in pertinent part (emphasis added):

If an obligor [who is more than $500 in arrears in child support payments] has not paid child support for more than 60 days, the Administration may institute an action to attach and seize the amount of the arrearage in one or more of the accounts of the obligor with a financial institution to satisfy the amount of arrearage owed by the obligor.[ ]

Additionally, and of significance to this appeal, FL § 10-108.3(h)(4) permits an obligor to “challenge the [collection] actions of the [Office] based on an exemption in [CJP] § 11— 504 ... or for any other good cause[.]”

Section 10-108.3 inhabits a “statutory scheme” which establishes the Child Support Enforcement Administration and grants to that agency broad powers to collect overdue child support payments. Among other things, Subtitle 10 of the Family Law Article authorizes the Motor Vehicle Administration to suspend the driver’s license of persons who are 60 days or more behind in their support obligation (FL § 10-119); authorizes other licensing agencies to suspend licenses for professional occupations for individuals who are 120 days behind in child support payments (FL § 10-119.3); grants the Child Support Enforcement Administration, and its local surrogates such as the Office, the authority to obtain orders withholding up to 25% of salaries and wages in order to satisfy unpaid child support obligations (FL §§ 10-120-138); and criminalizes the wilful failure to pay child support (FL § 10-203). Read together, the provisions of Title 10 of the Family Law Article demonstrate a strong public policy to provide multiple enforcement tools by which child support orders can be enforced. These orders are enforced to “preserve and promote the best interests of the child” for whom support is to be paid (FL § 10-118).

1.3. The Parties’ Contentions

Kelly’s argument is quite simple: he concedes that the Office has the authority to garnish bank accounts but, pointing to FL § 10-108.3(h)(4), he asserts that he is entitled to exempt up to $6,000 of personal property pursuant to CJP § ll-504(b)(5). However, we conclude that the exemption in CJP § 11 — 504(b)(5) does not apply to efforts to collect unpaid child support payments.

Our conclusion is based on a subtle, but very significant, difference in terminology between CJP § 11-504 and FL § 10 — 108.3(b)(1). CJP § ll-504(b) permits a “debtor” to claim an exemption of up to $6,000. In contrast, FL § 10— 108.3 authorizes the Child Support Enforcement Administration to collect unpaid child support from “obligors.” In the purview of FL § 10-108.3, Kelly is certainly an “obligor.” Does this make him a “debtor” for the purposes of CJP § 11— 504? The answer to the question is “no.” Maryland courts have long distinguished between a “debtor,” that is, someone who simply owes money to another, and an “obligor” who must pay money arising out of a separate, and separately enforceable, legal duty.

This principle was first applied in Maryland in Safe Deposit & Trust Co. v. Robertson, 192 Md. 653, 662-63, 65 A.2d 292 (1949). At issue in that case was whether income generated by a spendthrift trust could be attached to collect unpaid alimony. The Court recognized that income from a spendthrift trust was not subject to attachment for the beneficiary’s debts, but the Court drew a distinction between the obligation to pay a debt and the obligation to support a spouse or minor child. The latter obligation “is a duty, not a debt .... We think the rule that gives legal effect to spendthrift provisions as against contract creditors should not be extended to claims for support or alimony.” Id. (Emphasis added.)

The distinction between an individual’s debts — owed to third parties — and his or her duty to support dependent children and spouses has been repeatedly recognized in different legal and factual contexts by the Court of Appeals. See United States v. Williams, 279 Md. 673, 678, 370 A.2d 1134 (1977) (Military retirement pay is not subject to attachment for payment of a debt but is subject to attachment for unpaid alimony because “the underlying obligation is for intra-familial support and the very purpose of the statutory exemptions is to protect a family from being deprived of all support by attachment proceedings brought by an outsider.”) (citing Md.Code Ann. (1975, 2013 Repl.) § 15-602 of the Commercial Law Article); Pope v. Pope, 283 Md. 531, 537, 390 A.2d 1128 (1978) (Unemployment benefits are not subject to attachment for payment of a debt but are attachable for payment of alimony because “the legislative purpose underlying such statutes [prohibiting attachment of various benefits] is the protection of the various types of benefits involved from the claims of creditors not from the claim of a former wife for alimony, which often, as in Maryland, is not considered a debt.”) (citing what was then Md.Code (1957, 1969 Repl.), Art. 95A, s 16(c); substantively recodified as Md.Code Ann. (1991, 2008 Repl.) § 8-106 of the Labor and Employment Article).

The outcome of most of these cases turned upon the Court’s interpretation of statutes authorizing or limiting the enforcement of various types of monetary obligations. In each case, the Court of Appeals distinguished between “debtors” and “obligors” in the process of construing the statute in question. These decisions lead us to conclude that, when the General Assembly used the term “debtor” in CJP § 10-504(b)(4), the Legislature did not intend to permit persons who were obligated to pay child support to escape their legal duty. See Pye v. State, 397 Md. 626, 635, 919 A.2d 632 (2007) (“The General Assembly is presumed to be aware of this Court’s interpretation of its enactments and, if such interpretation is not legislatively overturned, to have acquiesced in that interpretation.”) (internal quotation marks and citation omitted.)

Our interpretation of the subsection is consistent with other provisions of CJP § ll-504(b), which extend protections not only to the debtor but the debtor’s family as well. For example, § ll-504(b)(3) (emphasis added) exempts “[pjrofessionally prescribed health aids for the debtor or any dependent of the debtor[;]” (b)(4) protects up to $1,000 of household items of the debtor or any dependent of the debtor; (b)(6) protects money designated for payment of child support; and (b)(7) protects money designated for payment of alimony.

Our interpretation of CJP § ll-504(b)(5) is similarly in harmony with FL § 10-108.3(b)(l). Title 10 of the Family Law Article establishes a broad panoply of collection techniques that are unavailable to those who collect debts, such as suspending drivers’ and professional licenses. Indeed, a court may even incarcerate a recalcitrant obligor for unpaid child support as part of a contempt proceeding — a remedy that is specifically denied to those who seek to collect debts. It would be anomalous, to say the least, for the General Assembly to give the Office such far-reaching powers to collect unpaid child support from a delinquent parent but to allow that same parent to place $6,000 beyond the reach of the Office.

Finally, Kelly cites Rosemann v. Salsbury, Clements, Bekman, Marder & Adkins, LLC, 412 Md. 308, 987 A.2d 48 (2010), in support of his argument. Rosemann specifically pertained to a child support enforcement action, where the obligor relied on the personal injury compensation exemption contained in CJP § ll-504(b)(2) to claim that the Administration could not collect child support arrears from her settlement proceeds from a personal injury action. 412 Md. at 313, 987 A.2d 48. In that case, the Court concluded that the reasoning in the Williams line of cases did not apply to this exemption, because the exemptions discussed in those cases were enacted to “protect a family from being deprived of all support by attachment proceedings brought by an outsider[,]” while the exemption in CJP § 11 — 504(b)(2) was enacted to “make the injured person whole.” Rosemann, 412 Md. at 325, 987 A.2d 48. The Court reasoned that the money from the personal injury settlement was “not meant to support directly the injured party’s family,” but to “pay medical bills and compensate for loss of future earnings and pain and suffering.” Id. Thus, it concluded that the exemption was applicable to claims for intra-familial support. Id. at 326-37, 987 A.2d 48.

We do not believe the reasoning in Rosemann is applicable to the exemption contained in CJP § ll-504(b)(5) for two reasons. First, the $6,000 exemption in § ll-504(b)(5) is available only to debtors. There is no similar limitation in subsection (b)(2), the provision at issue in Rosemann. Second, the General Assembly amended CJP § 11 — 504(i) in 2011 in response to Rosemann, authorizing the execution of up to 25% of a personal injury award to be applied to child support arrears.

2. Substantial Evidence

Kelly presents two arguments concerning the trial court’s factual conclusions. We review the court’s findings for clear error and give deference to the trial court’s opportunity to gauge the credibility of witnesses. See Md. Rule 8 — 131(c).

At the hearing, Kelly testified that he was not employed. The trial court stated that it did not believe his testimony on this issue. We defer to the trial court’s credibility assessment.

Kelly also asserts that the funds in the two accounts in question did not entirely belong to him, but were commingled with his mother’s funds. It was his burden to prove that all or a portion of the funds in the accounts were his mother’s by clear and convincing evidence. See Morgan Stanley & Co. v. Andrews, 225 Md.App. 181, 189, 123 A.3d 640 (2015). Kelly’s evidence on this point consisted of his testimony but the trial court found him not to be a credible witness. Again, we defer to the trial court.

Finally, Kelly argues that the Office withheld “crucial evidence” from the trial court. He does not specify what that evidence was and we will not speculate on the matter.

3. Additional Motions

Kelly has filed a motion pursuant to Rule 1-341 to request an award of costs and expenses. Rule l-341(a) states the circumstances in which this Court may award costs and expenses to a party when the opposing party acted in bad faith or without substantial justification. Normally, this determination is made by the trial court but we can save a step in this case. There is absolutely no basis to impute bad faith to the Office and it certainly acted with substantial justification.,

THE JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY IS AFFIRMED. APPELLANT TO PAY COSTS.

      . Md. Rule 2-643 states in pertinent part (emphasis added):
      Rule 2-643. Release of Property from Levy.
      (c) Upon Motion of Judgment Debtor. Upon motion of the judgment debtor, the court may release some or all of the property from a levy if it finds that (1) the judgment has been vacated, has expired, or has been satisfied, (2) the property is exempt from levy,----

      . To provide context, we set out § ll-504(b) in full (emphasis added): § 11-504. Items excluded from execution of judgment.
      (b) Items exempt from execution on judgment — The following items are exempt from execution on a judgment:
      (1) Wearing apparel, books, tools, instruments, or appliances, in an amount not to exceed $5,000 in value necessary for the practice of any trade or profession except those kept for sale, lease, or barter.
      (2) Except as provided in subsection (i) of this section, money payable in the event of sickness, accident, injury, or death of any person, including compensation for loss of future earnings. This exemption includes but is not limited to money payable on account of judgments, arbitrations, compromises, insurance, benefits, compensation, and relief. Disability income benefits are not exempt if the judgment is for necessities contracted for after the disability is incurred.
      (3) Professionally prescribed health aids for the debtor or any dependent of the debtor.
      (4) The debtor’s interest, not to exceed $1,000 in value, in household furnishings, household goods, wearing apparel, appliances, books, animals kept as pets, and other items that are held primarily for the personal, family, or household use of the debtor or any dependent of the debtor.
      (5) Cash or property of any kind equivalent in value to $6,000 is exempt, if within 30 days from the date of the attachment or the levy by the sheriff, the debtor elects to exempt cash or selected items of property in an amount not to exceed a cumulative value of $6,000.

      (6) Money payable or paid in accordance with an agreement or court order for child support.
      (7) Money payable or paid in accordance with an agreement or court order for alimony to the same extent that wages are exempt from attachment under § 15 — 601.l(b)(l)(ii) or (2)(i) of the Commercial Law Article.
      (8) The debtor's beneficial interest in any trust property that is immune from the claims of the debtor’s creditors under § 14.5-511 of the Estates and Trusts Article.
      (9) With respect to claims by a separate creditor of a husband or wife, trust property that is immune from the claims of the separate creditors of the husband or wife under § 14.5-511 of the Estates and Trusts Article.

      . Kelly concedes that he is such an obligor.

      . Kelly argues that this line of cases — including Pope, Williams, and Blum v. Blum, 295 Md. 135, 453 A.2d 824 (1983) — are inapplicable to the present case because all three of those cases pertained to claims for alimony rather than child support. The distinction is not significant. All three cases, although specifically pertaining to alimony, framed their analyses in terms of "intra-familial support,” see Pope, 283 Md. at 536, 390 A.2d 1128 ("[T]he underlying obligation is for intra-familial support....”); Williams, 279 Md. at 678, 370 A.2d 1134 (same); Blum, 295 Md. at 142, 453 A.2d 824 (describing the obligation to provide contractual alimony as a duty to provide intra-familial support). We conclude their holdings are equally applicable to claims for child support.

      . The exception is Safe Deposit, 192 Md. at 658-64, 65 A.2d 292, wherein the Court decided, without analysis of statutory authority, that income from a spendthrift trust could be subject to attachment for unpaid alimony.

      . See Maryland Constitution Article III § 38.
      No person shall be imprisoned for debt, but a valid decree of a court of competent jurisdiction or agreement approved by decree of said court for the support of a spouse or dependent children, or for the support of an illegitimate child or children, or for alimony (either common law or as defined by statute), shall not constitute a debt within the meaning of this section.

      . CJP§ 11 — 504(b)(2) states:
      The following items are exempt from execution on a judgment:
      (2) Except as provided in subsection (i) of this section, money payable in the event of sickness, accident, injury, or death of any person, including compensation for loss of future earnings. This exemption includes but is not limited to money payable on account of judgments, arbitrations, compromises, insurance, benefits, compensation, and relief. Disability income benefits are not exempt if the judgment is for necessities contracted for after the disability is incurred.

      . CJP § 11 — 504(i) states (emphasis added):
      Net recovery defined
      (i)(l) In this subsection, "net recovery” means the sum of money to be distributed to the debtor after deduction of attorney’s fees, expenses, medical bills, and satisfaction of any liens or subrogation claims arising out of the claims for personal injury, including those arising under:
      (1) The Medicare Secondary Payer Act, 42 U.S.C. § 1395y;
      (ii) A program of the Department of Health and Mental Hygiene for which a right of subrogation exists under §§ 15-120 and 15-121.1 of the Health — General Article;
      (iii) An employee benefit plan subject to the federal Employee Retirement Income Security Act of 1974; or
      (iv) A health insurance contract.
      (2) Twenty-five percent of the net recovery by the debtor on a claim for personal injury is subject to execution on a judgment for a child support arrearage.

      . Our denial of Kelly’s Rule 1-341 motion renders moot his pending motion to defer filing of supporting statements for cost and expense until we have decided his Rule 1-341 motion.

      . This opinion was originally filed as unreported. However, the Office suggested that it would be in the public interest for the opinion to be reported. We withdraw the original unreported opinion and file this opinion in its stead.