author: MacDaniel, J.,

text:
    EMMA P. WARD v. RONALD HAROLD WARD
    [No. 1210,
    September Term, 1980.]

      Decided March 12, 1981.

    The cause was submitted on briefs to Gilbert, C. J., and Lowe and MacDaniel, JJ.
    Submitted by Thomas A. Gentile and Harry W. Goldberg, P.A. for appellant.
    Submitted by Elliott B. Adler and Perito, Duerk, Carlson & Pinco, P.C. for appellee.
   MacDaniel, J.,

delivered the opinion of the Court.

This is an appeal from a Decree of Divorce entered August 7, 1980, in the Circuit Court for Prince George’s County. Appellant Emma P. Ward challenges those portions of the chancellor’s decree pertaining to the disposition of marital real property. Essentially, she argues that the chancellor misconstrued and misapplied Title 3, Subtitle 6A (Property Disposition in Divorce and Annulment) of the Maryland Courts and Judicial Proceedings Article. We agree and shall remand for further proceedings.

Appellant Emma P. Ward and appellee Ronald Harold Ward were married in 1965. No children were born of the marriage.

In 1973 the parties purchased a residence in Clinton, Maryland, which was titled in both names as tenants by the entireties. In May 1977 and September 1977 the parties entered into two separate land installment contracts for two separate lots in New Jersey. These contracts fell into default in June 1978. Thereafter appellee entered into new contracts for these two lots in his own name.

The parties first separated in 1976 and, except for brief periods of reconciliation, remained so until their divorce in 1980. Appellant instituted proceedings on February 13, 1979, by filing a Bill of Complaint for Divorce a mensa et thoro, alleging cruelty and constructive desertion. Appellee answered and on August 6, 1979, filed a Cross-Bill of Complaint for Divorce a vinculo matrimonii on the ground of adultery. The case came on for trial on March 17 and 18, 1980, and on August 7, 1980, the chancellor entered his Order denying appellant’s bill, granting appellee’s cross-bill, and making certain dispositions as to the parties’ marital property, some of which are the subject of this appeal.

Appellant takes issue with the following rulings by the chancellor contained in his "Order of Court” dated August 7, 1980:

"ORDERED, that the defendant/cross-plaintiffs interest in the property known as 12404 Tove Court, Clinton, Maryland be and it is hereby declared to be a total interest, less $10,000, and it is further
ORDERED, that the plaintiff/cross-defendant’s interest in the property known as 12404 Tove Court, Clinton, Maryland be and the same is hereby declared to be $10,000, and it is further
ORDERED, that the defendant/cross-plaintiffs interest in the properties known as Lot No. 1, Block No. 10, Delaware Bay Estates, Bridgeton, New Jersey, Lawrence Township; and in lot No. 9, Block No. 33, Egg Harbor Manor, Mays Landing, New Jersey, be and it is hereby declared to be a total interest, and it is hereby...”

Those portions of Title 3, Subtitle 6 A — Property Disposition in Divorce and Annulment — of Md. Cts. & Jud. Proc. Code Ann. (1980 Repl. Vol.) applicable to the issues are:

"3-6A-04 REAL PROPERTY
(a) When granting an absolute divorce or annulment, the court may resolve any dispute between the spouses with respect to the ownership of real property. However, the court may not transfer the ownership of real property from one spouse to the other.
(b) In accordance with the court’s determination of the ownership of real property, the Court may:
(1) Grant a decree which states what the ownership interest of each spouse is; and
(2) As to any jointly held property, order a partition or sale in lieu of partition and a division of the proceeds.
3-6A-05. MONETARY AWARD IN ADJUSTMENT OF PARTIES’ RIGHTS IN MARITAL PROPERTY.
(a) In granting an absolute divorce or annulment, or at any time within 90 days thereafter, if in its decree granting the divorce or annulment the court has expressly reserved the power to do so, the Court shall determine which property is marital property if the division of property is an issue. Family use personal property or the family home shall not be considered marital property so long as it is the subject of a use and possession order.
(b) The court shall determine the value of all marital property. After making the determination, the court may grant a monetary award as an adjustment of the equities and rights of the parties concerning marital property, whether or not alimony is awarded. The amount of the award and the method of its payment shall be determined after considering each of the following factors:
■ (1) The contributions, monetary . and nonmonetary, of each party to the well-being of the family;
(2) The value of all property interests of each spouse;
(3) The economic circumstances of each spouse at the time the award is to be made;
(4) The circumstances and facts which contributed to the estrangement of the parties;
(5) The duration of the marriage;
(6) The age and the physical and mental condition of the parties;
(7) How and when specific marital property was acquired, including the effort expended by each party in accumulating the marital property;
(8) Any award or other provision which the court has made under this Subtitle 6A with respect to family use personal property or the family home, and any award of alimony; and
(9) Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.
(c) A monetary award made under this section may be reduced to a judgment to the extent that any part of the award is due and owing.”

We will consider first appellant’s challenge to the chancellor’s disposition of the parties’ Clinton, Maryland, property. The record fails to reflect whether this disposition, awarding appellant a $10,000 interest in the property, was made pursuant to § 3-6A-04 or § 3-6A-05 of the Subtitle, but in either case it was wholly unauthorized.

Section 3-6A-04 only applies where ownership of real property is disputed, but there was no such dispute here. Unquestionably, the parties held title to their property as tenants by the entireties, that is, each owned an undivided half interest in it. The chancellor awarded appellant a fixed sum of $10,000 in substitution of that one-half interest. In so doing, he effected a transfer of the ownership of the property from one spouse to another, which § 3-6A-04 (a) flatly forbids him to do.

On the other hand, if the disposition were made pursuant to § 3-6A-05, it was equally erroneous. As its caption suggests, that section permits the chancellor to grant a monetary award in adjustment of the parties’ rights in marital property, but only after the court has first determined the value of all marital property, and then considered each of the nine factors specified. But the chancellor’s Order did not contain, or amount to, any monetary award per se. The reduction of appellant’s title interest, from one-half to a $10,000 fixed sum, will not suffice. Even assuming, arguendo, that a monetary award had been made, there is nothing whatever in the record to reflect whether the award was based upon the factors enumerated in the section. Finally, there is nothing whatever in § 3-6A-05 which permits the chancellor to affect title to, or the interests in, a specific piece of property.

The chancellor’s disposition of the New Jersey vacation properties is also deficient. There is nothing in the record to reflect whether the property was found to be marital property as defined in the Subtitle. If upon remand the chancellor arrives at such a conclusion, the record should reflect any basis for this finding.

Because portions of the chancellor’s Order are fatally at variance with the provisions of Title 3, Subtitle 6A of the Courts Article, they must be corrected.

Decree affirmed in part and reversed in part.

Case remanded for further proceedings consistent with the views stated in this opinion.

Appellee to pay the costs.

      . In the Circuit Court for Prince George’s County, Equity No. DR 79-524. Appellant orally amended her Bill at trial so as to request a divorce a vinculo matrimonii.

      . Those rulings by the chancellor in the August 7,1980 "Order of Court” not contested are hereby affirmed.


source: Caselaw Access Project

author: Liss, J.,

license: Public Domain

text:
    CHARLES ERIC LYONS v. PATRICIA ANN LYONS
    [No. 898,
    September Term, 1980.]

      Decided March 13, 1981.

      The cause was argued before Lowe, Liss and Couch, JJ.

      Jerome A. Kuta for appellant.
    No brief or appearance for appellee.
   Liss, J.,

delivered the opinion of the Court.

Charles Eric Lyons, appellant, and Patricia Ann Lyons, appellee, were married in Prince George’s County, Maryland, on November 27,1965. During the course of their marriage, they adopted Heather Noelle Lyons, born April 21, 1971.

On March 22, 1979 appellee filed a bill of complaint for a divorce a mensa et thoro in the Circuit Court for Anne Arundel County. She alleged therein that appellant had abandoned and deserted her on or about the 14th day of January, 1979. In her bill of complaint appellee sought a full panoply of relief. In addition to her request for a divorce a mensa et thoro, appellee prayed that the court grant her alimony pendente lite, permanent alimony, custody of the parties’ minor child, counsel fees and money to cover the costs of the suit.

She further sought to avail herself of the provisions of Maryland Code (1980 Repl. Vol.) Courts and Judicial Proceedings Article, Subtitle 6A (Property Disposition in Divorce and Annulment). Appellee prayed that the court (1) declare the residence of the parties a "family home”; (2) grant a pendente lite use and possession order of that residence; (3) grant the use and possession of the home for not less than three years; (4) require appellant to pay the mortgage and taxes on the marital home and swimming pool; and (5) declare all the furnishings in the "family home” "family use property” to be awarded to her. In addition, she requested in her bill that the court determine the ownership of all personal and real property of the parties regardless of how titled, including the business owned and operated by appellant known as Eric’s Auto Center, Inc.; and to declare the parties’ 1969 Corvette "family use” personal property to be awarded to her.

Appellant answered the bill of complaint, and the parties subsequently entered into a consent decree on July 10,1979, by the terms of which appellant agreed to reside at a place other than the house owned jointly by the parties. The consent decree also specified that appellee would be entitled to use and possession of the home pendente lite. The decree further required appellant: (1) to pay $25 per week for support and maintenance of the minor child; (2) to continue to pay the mortgage, interest, taxes and insurance on the family home pendente lite; (3) to continue to make payments on the family swimming pool; and (4) to continue paying health and medical insurance premiums for the wife and minor child. Reasonable visitation rights were granted, and the questions as to alimony, counsel fees, and the distribution of property were reserved for a hearing on the merits.

On December 31, 1979, appellee filed a supplemental bill of complaint in which she alleged that the respondent’s abandonment and desertion of her occurred on or about the 14th of January, 1979. Appellee further alleged that the desertion and abandonment were with the deliberate intention to terminate their marriage, and that the abandonment had continued uninterruptedly for more than twelve months prior to the time of the filing of the supplemental bill. She also alleged in her supplemental bill that there was no reasonable hope of reconciliation between the parties, and she thereby sought a divorce a vinculo matrimonii and prayed that she be "awarded those prayers as requested in the original bill of complaint.”

The record discloses that an extensive hearing was held on February 25, 1980, and that numerous witnesses appeared on behalf of both parties. The testimony of these witnesses primarily concerned the marital status of the parties and the extent of their business dealings. At this hearing, appellee reiterated that appellant abandoned the marital home on or about January 14, 1979. The chancellor held the case sub curia until April 23,1980 when he issued a decree providing for the following:

(1) That Patricia Ann Lyons is divorced a vinculo matrimonii from Charles Eric Lyons;
(2) That custody of Heather Lyons is granted to Patricia Ann Lyons, with the right of visitation at reasonable times to Charles Eric Lyons;
(3) That Patricia Ann Lyons is awarded use and possession of the parties’ marital home for a period of three years from this date;
(4) That Patricia Ann Lyons is awarded use and possession of the parties’ personal property listed as "at home” on Defendant’s Exhibit C for a period of three years from this date;
(5) That Charles Eric Lyons is awarded use and possession of the parties’ personal property listed as "here” on Defendant’s Exhibit C for a period of three years from this date;
(6) That Charles Eric Lyons continue to pay the mortgage, taxes, and insurance on the parties’ marital (family) home;
(7) That Charles Eric Lyons continue to pay the mortgage on the home swimming pool;
(8) That Charles Eric Lyons pay to Patricia Ann Lyons $25 per week as child support;
(9) That Charles Eric Lyons pay to Patricia Ann Lyons $25 per week as alimony;
(10) That Patricia Ann Lyons is declared to be an owner of a one-third undivided interest in the business -— known as Eric’s Auto Center, Inc.;
(11) That Charles Eric Lyons pay to Patricia Ann Lyons $1,500 towards her attorney’s fees and suit expenses by a year from this date, paying at least $500 by 1 November 1980;
(12) That Charles Eric Lyons pay the costs herein.
From this decree, appellant takes this appeal. He raises six issues to be decided by this Court: -
I. Whether the lower court erred in awarding $25 per week alimony to appellee because appellee’s income is sufficient to care for her needs?
II. Whether the lower court erred in awarding counsel fees to appellee because appellee’s income is sufficient to care for her needs?
III. Whether the lower court erred in awarding appellee one-third interest in appellant’s corporation because said corporation is appellant’s separate property?
IV. Whether the lower court erred in failing to issue findings of facts in this case?
V. Whether the lower court erred in failing to put a time limit on the mortgage payments it ordered appellant to make?
VI. Whether the lower court erred in ordering appellant to pay $25 child support per week?
Maryland Code Article 16, Section 24 (1957), sets out the grounds for a divorce a vinculo in Maryland. One such ground for divorce reads, in pertinent part:
Divorce a vinculo.
Upon a hearing of any bill for a divorce, the court may decree a divorce a vinculo matrimonii for the following causes, to wit:
* * Hi
when the court shall be satisfied by competent testimony that the party complained against has abandoned the party complaining, and that such abandonment has continued uninterruptedly for at least twelve months, and is deliberate and final, and the separation of the parties beyond any reasonable expectation of reconciliation; ....

It is clear from our examination of the record extract and the docket entries in this case that the supplemental bill of complaint was filed prematurely. Appellee’s bill alleged desertion on January 14, 1979; the supplemental bill was filed December 31, 1979. Furthermore, appellee herself testified that appellant abandoned her on January 14,1979. It is clear to us from these facts that the Circuit Court for Anne Arundel County had no authority to enter a decree a vinculo matrimonii based upon the allegations in the bill of complaint and the testimony before the court in that the statutory mandate of Article 16, Section 24, supra, requiring a twelve month separation period, had not been complied with. Moreover, such a defect cannot be cured by the fact that at the time the case was held in open court, the one-year jurisdictional period had expired. The Court of Appeals, in Besche v. Besche, 209 Md. 442, 452, 121 A.2d 708 (1956), noted in discussing what evidence may be considered in support of a bill of complaint that the cases cited therein "do not permit a divorce to be granted on the basis of occurrences subsequent to the filing of a bill or cross bill and allow evidence of such occurrences to be introduced only as reflecting upon intent or probabilities or revival of condoned offenses [citation omitted].” See Ashman v. Ashman, 201 Md. 445, 94 A.2d 257 (1953); Zuckerberg v. Zuckerberg, 188 Md. 428, 53 A.2d 20 (1947); Dearholt v. Dearholt, 178 Md. 405, 13 A.2d 538 (1940). See also Miller, Equity Procedure, Sections 187, 193. In light of the factual circumstances before the chancellor at the time of the trial, we conclude that he was not authorized to enter the decree a vinculo matrimonii divorcing the parties. We shall vacate this decree in its entirety.

We call to the attention of the chancellor that portion of the vacated decree which declares the appellee to be an owner of a one-third undivided interest in the business known as Eric’s Auto Center, Inc. We are unable to determine from the record the legal basis upon which that award was made to the appellee. We were given no guidance by the chancellor as to the manner in which he arrived at his conclusion that the wife was entitled to a one-third interest in the business. The chancellor ignored the requirements of Maryland Rule 18 b, which provides:

Before or within fifteen days after entry of an appealable judgment in a contested action tried upon the merits without a jury, the court shall dictate to the court stenographer or reporter, or prepare and file in the action, a brief statement of the grounds for its decision and the basis of determining the damages, if any.

Article 16, § 209, 1951 Code, now repealed, provided that in all equity cases it should be the duty of the court to file an opinion in respect of any final decree when such decree should have passed upon argument. Baltimore City and Prince George’s County were excepted. Section b of this Rule, applicable to both law and equity, is a modification of that statute.

We express no opinion as to whether the chancellor was authorized to award to the wife the one-third interest in the corporation which he did award. We do call attention to the provisions of Courts, and Judicial Proceedings Article § 3-6A-05 (1980 Repl. Vol.) which permits a monetary award based upon marital property.

Decree vacated, costs to be paid by appellant.


author: Melvin, J.,

text:
    SUPERVISOR OF ASSESSMENTS OF WICOMICO COUNTY, MARYLAND v. LODGE #817, TRUSTEES BENEVOLENT AND PROTECTIVE ORDER OF ELKS
    [No. 328,
    September Term, 1980.]

      Decided April 8, 1981.

    The cause was argued before Morton, Melvin and Mason, JJ.

      Kaye T. Brooks, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellant.
    Submitted on brief by Patrick L. Rogan, Jr., for appellee.
   Melvin, J.,

delivered the opinion of the Court.

This is an appeal of the Supervisor of Assessments of Wicomico County from an Order, dated April 1, 1980, of the Circuit Court for Wicomico County affirming as not "clearly erroneous” an Order of the Maryland Tax Court, dated November 8, 1979. The Tax Court’s order, in turn, affirmed a decision of the Property Tax Assessment Appeal Board of Wicomico County exempting from taxation for fiscal year 1977-78 a nine-hole private golf course owned by the appellee, Lodge #817, Trustees Benevolent and Protective Order of Elks (hereinafter referred to as the Lodge) and used solely for the recreational benefit of members and guests of that organization. The golf course covers approximately 57 acres of the Lodge’s total acreage of approximately 66 acres located at Salisbury, Maryland.

Article 81, § 8 (Md. Ann. Code, 1957, 1980 Repl. Vol.) subjects all real property, "by whomsoever owned,” to assessment and taxation for ordinary taxes in this State "in the county and/or city in which the same is situated.” Section 9 of Article 81 provides for various exemptions, "which exemptions shall be strictly construed.” (Emphasis added.) The Tax Court decided the Lodge was entitled to exemption for its golf course under § 9 (e) of Article 81. In pertinent part § 9 (e) provides exemption for the following:

"Property owned by ... any non-profit charitable, fraternal or sororal, benevolent . .. organizations ...; when any of such property described above is actually used exclusively for and necessary for charitable, benevolent . .. purposes (including athletic programs and activities of an educational institution) in the promotion of the general public welfare of the people of the State. In the case of fraternal or sororal organizations, the exemption shall extend only to those existing solely for the mutual benefit of their members and beneficiaries, which have a lodge system with ritualistic form of work and a representative form of government, and this term shall not mean any college or high school fraternities or sororities or other fraternal or sororal organizations with membership which is restricted wholly or largely to students or graduates of educational institutions or professional schools. This exemption shall also extend to any property used for the purposes set out in this subsection, which is held by a corporation or association or by trustees for the sole benefit of any of the above organizations. . ..” (Emphasis added.)

In its Memorandum of Grounds for Decision, the Tax Court stated:

"Our reading of this Section indicates that fraternal organizations such as the Respondent enjoy a unique status among the other organizations which the Legislature sought to provide an exemption from real property taxes. We think it is significant to note that by Subsection 2 of 9 (e), the Legislature has distinguished between non-profit charitable, benevolent, educational, literary, and fraternal organizations. This distinction is carried further when the statute defines those fraternal organizations to which the exemption shall extend. As it applies to fraternal organizations, we think that Section 9 (e) evidences the legislative intent or policy, to promote such organizations recognizing that the purpose of such organizations, is as much for the mutual benefit of their members as well as to have some charitable or benevolent purpose.
The undisputed evidence in this case indicates that the Respondents are a fraternal organization which have a lodge system and a ritualistic form of work and the representative form of government. Additionally, the evidence is clear that the Respondents are a non-profit fraternal organization.
Accordingly, for the reasons set forth above, we shall pass an order affirming the decision of the Property Tax Assessment Appeal Board of Wicomico County.”

It thus appears that the Tax Court was of the opinion that simply because the golf course is owned by the Lodge and because the Lodge meets the statutory definition of a non-profit fraternal organization, the golf course property is exempt from taxation. The exemption afforded by § 9 (e), however, is based not only on the type of organization that owns the property but also upon the use made of the property. Thus, in the present case, it was incumbent upon the Lodge to show that the 57 acres for which it claims exemption "is actually used exclusively for and necessary for charitable, benevolent, or educational purposes ... in the promotion of the general public welfare of the people of the State.” Art. 81, § 9 (e).

In Maryland State Fair v. Supervisor, 225 Md. 574, 587, 172 A.2d 132, 137-38 (1961), the Court of Appeals cited with approval 2 Cooley, Taxation §§ 683-685, agreeing with that authority that

"... even where the exemption is based upon the property being 'used exclusively’ for exempt purposes, the general rule is that if the primary use to which the property is put is necessary for, or fairly incidental to, the main purposes of the exempt institution, it is immaterial that the property is used secondarily or incidentally for a purpose not embraced within the exemption.” (Emphasis added.)

The question in this case is thus whether, under a statutorily mandated strict construction of § 9 (e), the "primary” use to which the 57 acres is put is "necessary for, or fairly incidental to, the main purposes” of the Lodge. It seems to be conceded by the Supervisor that the "main purposes” of the Lodge, as an organization, are charitable and benevolent in nature for the promotion of the general public welfare. Is the operation of a private golf course for the sole benefit of the Lodge’s members and guests from which the general public is excluded "necessary for, or fairly incidental to” those purposes? To state the question is to answer it. As a matter of law the answer is no. As a matter of law the 57-acre golf course is not exempt.

The Lodge does not contend that the golf course exists for any other reason than as a source of recreation for its members and guests. The unique argument is made that, even so, the golf course serves a "benevolent” purpose and therefore qualifies for exemption: ". . . [I]f a fraternal organization supplies a golf course for the use of its members and guests, such is a benevolent purpose for the benefit of the brothers of the fraternal organization. It is supplying a facility for the enjoyment of the brotherhood.” This construction ignores the plain language of the statute requiring the property to be used "in the promotion of the general public welfare of the people of the State.” Manifestly, a private golf course for members and guests only does not meet that requirement.

The Lodge makes the further argument that the golf course is an "athletic program” conducted by a fraternal organization and therefore should be exempt. The Lodge perceives support for this argument in the parenthetical phrase in the statute after the words "educational purposes”:

"... actually used exclusively for and necessary for charitable, benevolent, or educational purposes (including athletic programs and activities of an educational institution) in the promotion of the general public welfare of the people of the State. .. .” (Emphasis added.)

We think it is clear, however, that the emphasized parenthetical phrase only manifests a legislative intent to include within the exemption property of educational institutions used for athletic programs in connection with the training and education of their students. While property of a fraternal organization used for certain athletic programs, such as little league community youth programs, may well qualify for exemption, we find nothing in the statute indicating a legislative intent to exempt from taxation a private golf course for the exclusive use of its members and guests.

Article 81, § 229 (o) provides that in appeals from the Tax Court to the circuit court, "the circuit court ... shall determine the matter upon the record made” in the Tax Court and "shall affirm the Tax Court order if it is not erroneous as a matter of law and if it is supported by substantial evidence appearing in the record.” In the present case, we hold that on the record made before it the Tax Court’s order is unsupported by substantial evidence and is erroneous as a matter of law. It follows that the circuit court’s order affirming the Tax Court must be reversed.

Judgment reversed; costs to be paid by appellee.


author: Thompson, J.,

text:
    LEWIS H. DENNIS v. HELENA E. BLANCHFIELD
    [No. 382,
    September Term, 1980.]

      Decided April 8, 1981.

    The cause was argued before Thompson, Moore and Couch, JJ.

      H. Thomas Howell and John H. Mudd, with whom were Semmes, Bowen & Semmes on the brief, for appellant.

      Marvin Ellin, with whom were Donald F. Oakley, Jonathan Schochor and Ellin & Baker on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Helena E. Blanchfield, the appellee, filed a declaration in the Circuit Court for Prince George’s County in which she alleged that she had suffered damages as the result of the medical malpractice of Lewis H. Dennis, M.D., the appellant, and his associate, David J. Haidak, M.D. Following a trial before a jury, a verdict in the amount of $800,000.00 was returned in favor of Mrs. Blanchfield against Dr. Demñs. The verdict was reduced to $400,000.00 through remittitur, and final judgment in that amount was entered on February 13,1980. On March 10,1980, Dr. Dennis moved for a new trial under Md. Rule 625 b alleging that certain evidence had been discovered subsequent to the entry of judgment; the motion was denied.

The record shows that Mrs. Blanchfield, a 43 year old divorcee and mother of four, was referred to Dr. Dennis in early 1976, after she had begun to experience blurred vision. She was hospitalized and various tests were conducted; thereafter, on March 23,1976, Dr. Dennis informed her that she was suffering from multiple myeloma, a form of cancer. Mrs. Blanchfield testified that Dr. Dennis informed her that her cancer was incurable, that she had at most one year to live, and that it would be advisable that she "get her affairs in order.” Because Dr. Dennis advised her that it might prolong her life somewhat, Mrs. Blanchfield underwent chemotherapy from March 23 to April 27, 1976. The chemotherapy was discontinued because of the severity of the side effects. After the discontinuance of the chemotherapy, Mrs. Blanchfield continued to make regular visits to Dr. Dennis’ office for blood tests; the last such visit occurred on August 3, 1976, when it was proposed that Mrs. Blanchfield undergo a liver biopsy so that it could be determined whether the cancer had spread to that organ. At the urging of her children, Mrs. Blanchfield refused the biopsy and sought admission to the Memorial Sloan-Kettering Cancer Center in New York. Admitted on August 19, 1976, she remained there, undergoing examinations and tests, until September 8,1976, at which time she was released and advised that she was not then, nor had she ever been, suffering from multiple myeloma or any other form of cancer. She filed suit against Drs. Dennis and Haidak on June 23, 1977.

Medical experts, including Dr. Haidak, who was called as an adverse witness by Mrs. Blanchfield, testified that Dr. Dennis, in his diagnosis and treatment of Mrs. Blanchfield, did not conform to acceptable standards of professional care, specifically, that he lacked a sufficient basis for his diagnosis and for instituting chemotherapy and other forms of treatment. Dr. Haidak also testified, over objection, that he terminated his association with Dr. Dennis in September, 1976, one month after Mrs. Blanchfield’s final visit, and that Dr. Dennis’ treatment of Mrs. Blanchfield was one of the factors which contributed to his decision to leave the practice.

Evidence was presented which supported Mrs. Blanchfield’s claim that Dr. Dennis’ erroneous diagnosis and treatment had caused her physical and mental suffering. She testified that the chemotherapy caused nausea, vomiting, diarrhea, and weakness. She further testified that the treatment caused an uncomfortable dryness of the mouth, nose, and eyes, and that she still suffered from this condition at the time of trial. There was medical testimony that, in addition to the physical discomfort, the needless administration of chemotherapy had increased the odds that she would one day develop a true malignancy. Mrs. Blanchfield testified that the diagnosis and treatment had caused her to become extremely nervous and that she had lived for months in a state of severe depression; she stated that she suffered from chronic memory loss, an inability to concentrate, "head swims,” and nightmares. A psychiatrist testified that she suffered from "anxiety depressive reaction,” that this condition had been caused by the improper diagnosis and treatment, and that she would require some two years of psychotherapy to alleviate her condition. It was also testified, that during the period when she believed her death to be imminent, she broke off her engagement to be married and was forced by the side effects of the chemotherapy to quit her job as a school bus dispatcher. She testified that she had been unable to regain this job and that, as a result, she had lost wages.

I Arbitration

Dr. Dennis filed a timely motion raising preliminary objection, on the grounds that Mrs. Blanchfield’s action was barred by her failure to submit her claim to arbitration under the Health Care Malpractice Claims statute ("HCMCS”), Md. Cts. & Jud. Proc. Code Ann. §§ 3-2A-01, et. seq. Dr. Dennis contends the trial court erred in denying his motion.

The HCMCS was enacted as § 1 of Chapter 235, Laws of Maryland, 1976, a comprehensive piece of legislation intended to alleviate a perceived crisis in Maryland in the area of medical malpractice insurance. It makes submission to non-binding arbitration a condition precedent to the filing of an action for damages for medical malpractice, stating:

"All claims, suits, and actions, ... by a person against a health care provider for medical injury allegedly suffered by the person in which damages of more than $5,000 are sought are subject to and shall be governed by the provisions of this subtitle. An action or suit of that type may not be brought or pursued in any Court of this State except in accordance with this subtitle. An action in which damages of $5,000 or less are sought is not subject to the provisions of this subtitle.” Md. Cts. & Jud. Proc. Code Ann. § 3-2A-02.

See, Bishop v. Holy Cross Hospital, 44 Md. App. 688, 410 A.2d 630 (1980). Section 3-2A-09 declares that the HCMCS "shall be deemed procedural in nature.” Section 2 of Chapter 235 added § 482A to the Insurance Code, art. 48A; it requires the inclusion of certain provisions in insurance policies issued to health care providers. Chapter 235, § 3 amended Md. Cts. & Jud. Proc. Code Ann. § 5-109, which sets forth the statute of limitations in actions against health care providers. Section 4 repealed all laws inconsistent with the Act, while § 5, the enacting clause for Chapter 235, provided "[t]hat this act shall take effect July 1, 1976, and shall apply only to medical injuries occurring on and after that date.”

Dr. Dennis’ first argument is that HCMCS was intended by the legislature to apply to all malpractice actions pending on July 1, 1976, the effective date of the statute, or pursued thereafter, regardless of when the medical injury occurred. He reasons that Chapter 235, § 5, which we have set forth above, was intended to limit only the application of the "substantive” sections of the Act, §§ 2 and 3, and not the application of § 1, the HCMCS, and that, as the HCMCS is "procedural,” it must be given retroactive as well as prospective effect. He would have us conclude that Mrs. Blanchfield’s action in the Circuit Court, filed on June 23, 1977, was barred by the HCMCS, as an action "brought or pursued” after the effective date of the statute, regardless of when Mrs. Blanchfield’s claimed medical injuries occurred. Alternatively, Dr. Dennis argues that, assuming that the application of the HCMCS is limited by § 5, Mrs. Blanchfield was nevertheless required to submit her claim to arbitration because that claim was for injuries which occurred prior to, on, and subsequent to the effective date of the Act. Drawing an analogy to the "continuing course of treatment” rule employed in interpreting statutes of limitations in malpractice cases, he argues that, as Mrs. Blanchfield continued to be under his care and treatment until August 3, 1976, at least some of the medical injuries alleged occurred subsequent to the effective date of the HCMCS.

We find the arguments unpersuasive. In John McShain, Inc. v. State, 287 Md. 297, 301, 411 A.2d 1048 (1980), the Court of Appeals wrote: "We have stated repeatedly that where the language of a statute is free from ambiguity, there is no need to look elsewhere to ascertain the legislative intent, [citations omitted]. Instead, the statutory language should be given effect in accordance with the clear meaning of the words taken in their ordinarily and popularly understood meaning.” In the instant case the language of Chapter 235 of the Laws of Maryland, 1976 is free from ambiguity. Section 5 provides that "this Act... shall apply only to medical injuries occurring on and after ... [July 1, 1976].” Manifestly, "this Act” refers to the whole of Chapter 235, to §§ 1-5 inclusive. We reject the argument that the application of the HCMCS is not limited to "medical injuries occurring on and after” the effective date. Similarly, we reject the argument that the medical injuries alleged by Mrs. Blanchfield occurred "on or after” that date. All of the harm, physical and mental, which Mrs. Blanchfield alleged, she alleged to have been caused by the incorrect diagnosis and by the chemotherapy. Mrs. Blanchfield was informed of that diagnosis on March 23, 1976; chemotherapy was discontinued on April 27,1976. By April 27,1976, the harm was done and the medical injuries had occurred. That the effects of those injuries continued to be felt by Mrs. Blanchfield thereafter is irrelevant. Also irrelevant are rules used by the courts in interpreting statutes of limitations; such rules merely govern the point at which the courts will hold that the cause of action arising out of an injury accrues. See, Decker v. Fink, supra, 47 Md. App. at 209-11.

II Admissibility of Evidence

As we stated above, Dr. Haidak, Dr. Dennis’ former associate and co-defendant, was permitted to testify, over objection, that he terminated his practice with Dr. Dennis in September, 1976. He was asked, again over objection: "Did the care and treatment that was accorded to this lady by Dr. Dennis have anything to do with your severing your business relationship with him?” He answered: "I think that it reflected a difference of philosophy in how to manage patients and how to run an office. And in that sense it did contribute to my — eventually to my leaving the practice.” Dr. Dennis argues that the admission of this testimony was error. If this were error it was not prejudical. Dr. Haidak testified that in his opinion Dr. Dennis’ treatment of Mrs. Blanchfield was below acceptable medical standards. Even without the testimony, to which there was objection, the jury would doubtless have inferred that the two were no longer associated and that the mistreatment of Mrs. Blanchfield was at least one of the reasons.

Ill Reduction to Present Value of Future Damages

Dr. Dennis noted several exceptions to the court’s instructions as to damages. The first exception was to the court’s refusal to instruct the jury that it should reduce to present value any damages awarded to Mrs. Blanchfield for loss of future earning capacity. He contends that this failure was error.

There exists considerable authority in other jurisdictions to support Dr. Dennis’ contention. See, e.g., Osborne v. Bessonette, 265 Or. 224, 508 P.2d 185, 187 (1973), and authorities cited therein. But see, Kaczkowski v. Bolubasz, 421 A.2d 1027 (Pa. 1980) (holding that practice of discounting future lost earnings would be abandoned so as to offset effects of future inflation). It is reversible error in Maryland for a court to refuse to give such an instruction in a wrongful death action. Walston v. Sun Cab Co., 267 Md. 559, 575, 298 A.2d 391 (1973), aff'g, Sun Cab Co. v. Walston, 15 Md. App. 113, 129, 289 A.2d 804 (1972). We have held that the giving of such an instruction in a personal injury case is not error. Rafferty v. Weimer, 36 Md. App. 98, 373 A.2d 64 (1977). Yet, no appellate court in this State has ever held that it is reversible error to refuse a reduction to present value instruction in an action for personal injuries.

That some doubt exists as to the correct rule to be applied in personal injury cases in Maryland is largely attributable to the presence of certain language in the opinion of the Court of Appeals in Hutzell v. Boyer, 252 Md. 227, 249 A.2d 449 (1969). There, in an action for personal injuries, it was argued that the trial court erred in refusing to instruct the jury that any damages awarded for diminished earning capacity were to be reduced to present value. The Court of Appeals held that "the lower court’s refusal to grant such an instruction, if error at all, was [not] prejudicial error.” Id. 252 Md. at 237. The Court did not make explicit the basis for its holding, it stated only that "reduction of damages to present value is not customary in Maryland, except in cases of wrongful death. ...” Id. 252 Md. at 237-38.

The significance of the language used in Hutzell and the exact nature of its holding have never been made clear. Although we stated in Lumber Terminals v. Nowakowski, 36 Md. App. 82, 91, 373 A.2d 282 (1977), a personal injury action, that "the holding of Hutzell was that it is not prejudicial error to refuse a requested instruction that the projected earning capacity of an impaired person should be reduced to present value” (emphasis in original), it seems doubtful that the Court of Appeals viewed its decision quite that way. While confining its holding in Walston v. Sun Cab Co. "to the failure of the trial court to give an additional instruction in regard to present worth in the present death case,” 267 Md. at 575, the Court dismissed its discussion of reduction of present value in Hutzell as simply an "oblique reference to this theory ....” 267 Md. at 573. The Court of Appeals also approved the following statement, contained in the opinion of this Court in Sun Cab Co. v. Walston, 15 Md. App. at 128: "[C]haracterization of the rule as customary in wrongful death cases does not mean that it is any less the law in such cases, nor that a judge may properly decline to instruct the jury upon it when such instruction is requested.” (emphasis in original). Referring to that statement and to the language in Hutzell, we observed in Rafferty v. Weimer, 36 Md. App. at 109, that:

"By the same token, characterization of the rule as not customary in non-death cases does not mean it is any less the law in such cases. An analysis of the reason for the rule requiring reduction of damages to present value in death cases makes clear that the same principles should apply in non-death cases. There is neither reason nor logic in an argument that it is error not to give the present value instruction in a death case, but error to grant such an instruction in a total and permanent injury case. .. .”

In a similar vein, we commented in Lumber Terminals v. Nowakowski, 36 Md. App. at 91, that a "distinction made between wrongful death and personal injury cases (requiring an instruction in the former but not the latter...) can not be logically based upon the restricted damages allowed in wrongful death cases, and has no sound basis in principle.”

We are of the opinion that, if the issue were before it, the Court of Appeals would hold that it is reversible error to refuse to instruct the jury in a personal injury action that they are to reduce to present value any damages awarded for the loss of future earning capacity. We now so hold.

Mrs. Blanchfield argues that such an instruction was not required here because, she asserts, her claim was for wages lost up to the time of trial, not for earnings which would be lost in the future. See generally, Adams v. Benson, 208 Md. 261, 271, 117 A.2d 881 (1955). While her counsel did indeed argue to the jury that "I am not asking for anything into the future, I am not even asking for that, I am talking about lost incomé to date . ..,” the court instructed the jury as follows: "You would also take into consideration any loss of earnings that she may have suffered in the past by reason of her being unable to work. And you would also take into consideration any lessening of the earning capacity that she may be reasonably expected to sustain in the future.” Thus the jury was instructed that they could award the damages for lost earning capacity; we cannot say that they did not do so.

IV Instruction That Damages Are Free of Income Taxes

At trial, Dr. Dennis requested that the jury be instructed as follows: "Any damages awarded to plaintiff are not income to her within the meaning of federal and state income tax laws, and no income tax will be owed or paid thereon.” The court below declined to give the requested instruction and Dr. Dennis excepted.

In support of his contention that the trial court erred in declining to give the tax instruction, Dr. Dennis relies principally upon Norfolk and Western Railway Co. v. Liepelt, 444 U.S. 490, 100 S. Ct. 755, 62 L. Ed. 2d 689 (1980). In Liepelt, a wrongful death action brought under the Federal Employer’s Liability Act (FELA), see, 45 U.S.C. § 51 et seq., in an Illinois court, the Supreme Court held that the state court erred in refusing to instruct the jury that any damages which they awarded would not be subject to taxation as income and that they should not consider such taxes in determining the amount to be awarded. 444 U.S. at 496-499, 100 S. Ct. at 759-60. The Court reasoned as follows:

"Section 104(a)(2) of the Internal Revenue Code provides that the amount of any damages received on account of personal injuries is not taxable income. The section is construed to apply to wrongful death awards; they are not taxable income to the recipient.
"Although the law is perfectly clear, it is entirely possible that the members of the jury may assume that a plaintiffs recovery in a case of this kind will be subject to federal taxation, and that the award should be increased substantially in order to be sure that the injured party is fully compensated. The Missouri Supreme Court expressed the opinion that '[i]t is reasonable to assume [that many] jurors [will] believe [that its verdict will] be subject to such taxes.’ Dempsey v. Thompson, 363 Mo. 339, 346, 251 S.W.2d 42, 45 (1952). And Judge Aldisert, writing for the Third Circuit, agreed:
'We take judicial notice of the "tax consciousness” of the American public. Yet, we also recognize, as did the court in Dempsey v. Thompson, 363 Mo. 339, 251 S.W.2d 42 (1952), that few members of the general public are aware of the special statutory exception for personal injury awards contained in the Internal Revenue Code.
' "[T]here is always danger that today’s tax-conscious juries may assume (mistakenly of course) that the judgment will be taxable and therefore make their verdict big enough so that plaintiff would get what they think he deserves after the imaginary tax is taken out of it.”
'II Harper & James, The Law of Torts § 25.12, at 1327-1328 (1956),’ (Footnote omitted.) Domeracki v. Humble Oil & Refining Co., 443 F.2d 1245, 1251 (CA3 1971), cert. denied, 404 U.S. 883, 92 S. Ct. 212, 30 L. Ed. 2d 165.
"A number of other commentators have also identified that risk.
"In this case the respondents’ expert witness computed the amount of pecuniary loss at $302,000, plus the value of the care and training that decedent would have provided to his young children; the jury awarded damages of $775,000. It is surely not fanciful to suppose that the jury erroneously believed that a large portion of the award would be payable to the Federal Government in . taxes and that therefore it improperly inflated the recovery. Whether or not this speculation is accurate, we agree with petitioner that, as Judge Ely wrote for the Ninth Circuit,
'To put the matter simply, giving the instruction can do no harm, and it can certainly help by preventing the jury from inflating the award and thus overcompensating the plaintiff on the basis of an erroneous assumption that the judgment will be taxable.’ Burlington Northern, Inc. v. Boxberger, 529 F.2d 284, 297 (CA 9 1975).” (Footnotes omitted.) 444 U.S. at 496, 100 S. Ct. at 759.

We note that the rule adopted by the Supreme Court in Liepelt is contrary to the weight of authority in the states. See, e.g., Vasina v. Grumman Corp., 492 F. Supp. 943 (E.D.N.Y. 1980) (applying New York law); Henninger v. Southern Pacific Co., 59 Cal. Rptr. 76 (1967); Davis v. Fortino & Jackson Chevrolet Co., 510 P.2d 1376 (Colo. App. 1973); Gorham v. Farmington Motor Inn, Inc., 271 A.2d 94 (Conn. 1970); Atlantic Coast Line Railroad Co. v. Braz, 182 So.2d 491 (Fla. 1966); Kawamoto v. Yasutake, 410 P.2d 976 (Haw. 1966); Raines v. New York Central Railroad Co., 283 N.E.2d 230 (Ill. 1972); Wickizer v. Medley, 348 N.E.2d 96 (Ind. 1976); Anunti v. Payette, 268 N.W.2d 52 (Minn. 1978); Bracy v. Great Northern Railway Co., 343 P.2d 848 (Mont. 1959); Chicago, Rock Island & Pacific Railroad Co. v. Kinsey, 372 P.2d 863 (Okl. 1962); Plourd v. Southern Pacific Transportation Co., 513 P.2d 1140 (Or. 1973); Stallcup v. Taylor, 463 S.W.2d 416 (Tenn. 1970); General Motors Corp. v. Turner, 567 S.W.2d 812 (Tex. Ct. Civ. App. 1978); Norfolk Southern Railway Co. v. Rayburn, 195 S.E.2d 860 (Va. 1973); Crum v. Ward, 122 S.E.2d 18 (W. Va. 1961). But see, Abele v. Massi, 273 A.2d 260 (Del. 1970); Dempsey v. Thompson, 251 S.W.2d 42 (Mo. 1952); Tenore v. Nu Car Carriers, Inc., 341 A.2d 613 (N.J. 1975); Gradel v. Inouye, 381 A.2d 975 (Pa. Super. 1977). See generally, Annot. 63 A.L.R.2d 1393 (1959).

The issue is one of first impression in Maryland. Although we have previously addressed, in Lumber Terminals v. Nowakowski, 36 Md. App. at 96-98, the question of whether an award of damages should be "reduced because of any income tax savings which may result to the plaintiff from the fact that the damages will be exempt from income tax,” holding that they should not, that issue and the issue presented herein are distinct. See, Tenore Nu Car Carriers, Inc., 341 A.2d at 623 ("The first problem is addressed to precision in estimating loss of future earnings; the second, to the matter of dissuading the jury from increasing a verdict on the mistaken assumption that the damages are taxable . . .”).

Although the Liepelt holding is binding only in FELA cases, its reasoning is persuasive. Undoubtedly today’s juries are tax-conscious in making their awards, see, e.g., Towli v. Ford Motor Co., 292 N.Y.S.2d 8 (A.D. 1968); the instruction required in Liepelt is a simple and non-prejudicial way to deal with that tax-consciousness. We hold, for the reasons set forth in Liepelt, that the court below erred in refusing to instruct the jury that their award would not be taxed as income.

V Miscellaneous

Dr. Dennis presents two additional contentions, of which only brief mention need be made. At trial, actuarial tables were introduced which showed that a woman of Mrs. Blanchfield’s age had an additional life expectancy of 31.4 years. In its instructions to the jury, the court below, referring to those actuarial tables, stated that "the life tables ... indicate that this lady has a life expectancy of 31.4 years.” Correctly noting that such tables state the life expectancy of an average person of a specified age and not the life expectancy of any particular individual, see, Simco Sales Service of Maryland, Inc. v. Schweigman, 237 Md. 180, 189-90, 205 A.2d 245 (1964), Dr. Dennis excepted to the court’s instruction and now argues that the failure of the court to correct its instruction was error.

Dr. Dennis also contends that the court below abused its discretion in denying his motion for a new trial, filed, pursuant to Md. Rule 625b, on the grounds that certain evidence had been newly discovered. This evidence consisted of a report filed by Mrs. Blanchfield’s employer with the Workmen’s Compensation Commission which, Dr. Dennis contended, indicated that certain symptoms and ailments of which Mrs. Blanchfield complained, and which she attributed at trial to the negligent diagnosis and treatment by Dr. Dennis, were in fact attributable to a pre-existing condition.

Whether the misstatement by the trial court concerning the actuarial tables constituted reversible error and whether the court abused its discretion in denying the motion for a new trial, we need not decide. The instruction to which Dr. Dennis excepted concerned the issue of damages and the newly discovered evidence, as proffered, also concerned the issue of damages. As we hold that a new trial on the issue of damages is necessary, because the jury was not properly instructed concerning the reduction to present value and the non-taxability of the damages awarded, we need not address these additional contentions.

Judgment vacated.

Case remanded to the Circuit Court for Prince George’s County for a new trial limited to the issue of damages.

Costs to be equally divided.

      . At the close of her case, Mrs. Blanchfield acquiesced in the entry of a directed verdict in favor of Dr. Haidak.

      . See generally, Attorney General v. Johnson, 282 Md. 274, 385 A.2d 57, appeal dismissed, 439 U.S. 805 (1978).

      . See, Decker v. Fink, 47 Md. App. 202, 209, 422 A.2d 389 (1980), cert. denied, 289 Md. 289 (1981): "The rule is that when there is a continuing course of treatment the statute [of limitations] does not begin to run until the treatment is terminated. A corollary to this rule is that, if during the course of treatment, the patient learns or should reasonably have learned of the injury sustained by the patient then the statute runs from the time of knowledge actual or constructive. See also, Waldman v. Rohrbaugh, 241 Md. 137, 215 A.2d 825 (1966).

      . In Chesapeake and Ohio Railway Co. v. Kelly, 241 U.S. 485, 489, 36 S. Ct. 630, 60 L. Ed. 1117 (1916), the Supreme Court explained the rationale requiring the reduction to present value of damages awarded for loss of future benefits: "So far as a verdict is based upon the deprivation of future benefits, it will afford more than compensation if it be made up by aggregating the benefits without taking account of the earning power of the money that is presently to be awarded. It is self evident that a given sum of money in hand is worth more than the like sum of money payable in the future.”

      . In the absence of expert testimony, the trial court could, of course, require counsel requesting the instructions to produce appropriate tables before the matter could be judicially noticed.


text:
    CHARLES COUNTY SUPPORTING SERVICES EMPLOYEES LOCAL UNION 301 v. BOARD OF EDUCATION OF CHARLES COUNTY, MARYLAND
    [No. 542,
    September Term, 1980.]

      Decided April 8, 1981.

      The cause was argued before Moore, Melvin and Mason, JJ.

      Charles A. Bongar, Jr., with whom were Andrews, Schick & Bongar, P.A. on the brief, for appellant.

      Christopher C. Henderson, with whom was Edward S. Digges on the brief, for appellee.
   Melvin, J.,

delivered the opinion of the Court.

The central issue presented by this appeal is whether the court below erred in denying a petition for a writ of mandamus to compel the Charles County Board of Education to determine the composition of a bargaining unit for the noncertiñcated public school employees of Charles County. For the reasons to be stated in this opinion, we conclude that the initial decision by the public school employer to designate an exclusive representative for its noncertiñcated employees is discretionary and that if the public school employer chooses to not designate any exclusive representative for. such employees, as was the case here, then it is under no duty to determine the composition of a bargaining unit. Accordingly, mandamus was properly denied, and we shall affirm the judgment below.

I

Although it is clear beyond peradventure that public employees have a First Amendment right to promote, associate with, and be represented by labor unions, Smith v. Arkansas State Highway Employees, Local 1315, 441 U.S. 463, 465, 99 S. Ct. 1826, 60 L. Ed. 2d 360 (1979); see Cherry v. Burnett, 444 F. Supp. 324, 330 (D. Md. 1977), it is nevertheless equally plain that the First Amendment does not afford public employees a right of collective bargaining as such; that is, the Constitution does not impose an affirmative obligation on public employers to either recognize, bargain with, or otherwise respond to employee organizations. Smith, supra; see Newport News Fire Fighters Association Local 794 v. City of Newport News, Virginia, 339 F. Supp. 13 (E.D. Va. 1972). Consequently, the duty sought to be imposed on the Charles County Board of Education to respond to the union demands in the present case, if it exists at all, must be found in State law.

In 1968 the Maryland General Assembly enacted a detailed statute (Ch. 483 of the Acts of 1968) governing the organization of certificated public school employees. This Act, with but minor changes since its original enactment, is now codified as Maryland Code (1978), Title 6, Subtitle 4 of the Education Article. Section 6-402 (a) of that subtitle merely recognizes rights already extant by virtue of the First Amendment:

"Employees may form and join organization. — Public school employees may form, join, and participate in the activities of employee organizations of their own choice for the purpose of being represented on all matters that relate to salaries, wages, hours, and other working conditions.” (Emphasis in original).

However, Sections 6-404 (a) and 6-408 (b) (1) go beyond the First Amendment and — in tandem — establish for certificated employees a right of collective bargaining by imposing on public school employers a correlative duty. Section 6-408 (b) (1) establishes the duty of negotiation:

"Representatives to negotiate. — On request a public school employer or at least two of its designated representatives shall meet and negotiate with at least two representatives of the employee organization that is designated as the exclusive negotiating agent for the public school employees in a unit of the county on all matters that relate to salaries, wages, hours, and other working conditions.” (Descriptive heading emphasized in original; other emphasis added.)

This provision, in itself, does not impose a general duty to bargain collectively with any employee organization, because, by its terms, the duty to negotiate only exists with respect to "designated” employee organizations. Designation is a process whereby an employee organization is determined, by criteria also fixed in Subtitle 4, to be the exclusive representative of a specified unit of employees. Thus, it is the duty to so designate an employee organization that makes § 6-408 (b) (1) operative and, thereby, generates a duty of collective bargaining. The duty to designate is set forth in § 6-404 (a):

"Public school employer to designate exclusive employee organization. — Each public school employer shall designate, as provided in this subtitle, which employee organization, if any, shall be the exclusive representative of all public school employees in a specified unit in the county.” (Descriptive heading emphasized in original; other emphasis added.)

That §§ 6-404 (a) and 6-408 (b) (1) create imperative duties and correlative rights is clear by their terms and has not been questioned.

In addition to affording certificated employees the substantive right of collective bargaining, Subtitle 4 also dictates the procedures by which that right is to be effected. There are specified procedures regarding both designation and negotiation. The procedural duties of the public school employer with respect to the task of designation are set forth primarily in §§ 6-404 (b) and 6-405. The first step in the designation process is the specification of bargaining units pursuant to § 6-404 (b):

"Composition of unit. — The public school employer shall determine the composition of the unit in negotiation with any employee organization that requests negotiation concerning the composition of the unit.” (Emphasis in original.)

Specification of appropriate bargaining units then engages the minimum enrollment and voting requirements detailed in § 6-405 that, once satisfied by an employee organization with respect to a specified unit, compel designation of that organization as the exclusive bargaining representative for all employees in the unit. The public school employer’s duties with regard to the conduct of negotiation with the exclusive representative so designated are delineated in § 6-408 of the statute.

A statutory scheme parallel to that enacted in 1968 for certificated employees was enacted in 1974 to govern the organization of noncertiñcated public school employees. This Act, with but only minor changes since its original enactment, is now codified as Subtitle 5 of Maryland Code (1978) Education Article, Title 6. Although parallel to, and in many respects identical with, Subtitle 4, Subtitle 5 is not without its differences. The most notable distinction, at least with regard to the present case, is found in § 6-505 (a):

"Public school employer may designate exclusive employee organization. — Each public school employer may designate, as provided in this subtitle, which employee organization, if any, shall be the exclusive representative of all public school employees in a specified unit in the county.” (Descriptive heading emphasized in original; other emphasis added.)

As highlighted in the above quotation, § 6-505 (a) is distinguished from its analog in Subtitle 4, § 6-404 (a), in that it employs the word "may” as opposed to "shall,” thereby indicating a power rather than a duty to designate an exclusive representative. We are aware that legislative use of the word "may” or "shall” does not, in itself, control judicial construction of the relevant statute as permissive or mandatory, Hitchins v. City of Cumberland, 215 Md. 315, 323, 138 A.2d 359 (1958); at the same time, we also acknowledge that "the word [may] bears its ordinary significance of permission unless the context [or] the purpose of the statute shows that it is meant to be imperative. . . .” Fleishman v. Kremer, 179 Md. 536, 541, 20 A.2d 169 (1941). With regard to § 6-505 (a), both the context of that section and the purpose of Subtitle 5 as a whole bolster a permissive construction.

Viewed contextually, the designation clause of § 6-505 (a) must be considered in light of its Subtitle 4 counterpart, § 6-404 (a). That the legislature in juxtaposing what are now §§ 6-404 (a) and 6-505 (a) chose to use "may” in the latter but "shall” in the former, and further that the legislature in recodifying these provisions in 1978 as part of the Education Article did not deem it appropriate to eliminate this difference, we think strongly evidence the intent of the legislature to have the word "may” in § 6-505 (a) "bear its ordinary significance of permission.”

Moreover, in the title of the original enactment of what is now Subtitle 5 the legislature declared that, inter alia, the Act was "For the purpose of permitting certain local boards of education to negotiate with certain organizations which represent noncertificated public school employees...” Ch. 719 of the Acts of 1974 (emphasis added). We find in this declaration a clear legislative purpose to authorize rather than compel the public school employers encompassed by its provisions to negotiate with their noncertificated employees. Manifestly, a permissive construction of the designation clause in § 6-505 (a) is consistent with this legislative intent and to construe it otherwise would clearly contravene that intent. Section 6-510 (b), by language identical to that of § 6-408 (b) (1), supra, requires public school employers to negotiate with "designated” employee organizations. Hence, if § 6-505 (a) were given a mandatory reading — compelling public school employers to designate exclusive representatives for noncertificated employees — then its operative effect would be to engage § 6-510 (b), thereby, imposing an imperative duty on public school employers to also negotiate with noncertificated employees in the same way that Subtitle 4 imposes such a duty with regard to employees that are certificated. Clearly, this would violate the express intent of the legislature. On the other hand, if § 6-505 (a) is construed as discretionary, in accordance with its language, then unless the public school employer decides that it will allow exclusive representation among its noncertificated employees and an exclusive representative is in fact designated pursuant to procedural provisions of Subtitle 5, the § 6-510 (b) duty to negotiate is not triggered, and the employer retains the discretion intended by the legislature.

In sum, only a permissive reading of the § 6-505 (a) designation clause, in contrast to the mandatory construction associated with its Subtitle 4 counterpart, is consistent with the language and context of § 6-505 (a) and with the express legislative purpose of the overall statutory scheme of which it is a part. For these reasons, we conclude that public school employers affected by Subtitle 5 have the statutory discretion to decide whether they will designate any employee organization as an exclusive representative of their noncertificated employees.

It should be observed that there is no merit to an allegation that a permissive reading of § 6-505 (a) denies noncertificated employees the right of collective bargaining. As discussed at the outset, the right of collective bargaining ■ arises only by statute. Furthermore, as alluded to, the design of Subtitles 4 and 5 is such that the "designation” provision of each is the linchpin that determines the right of public school employees to engage in collective bargaining. It will be recalled that Subtitle 4 creates such a right with regard to certificated employees only because § 6-404 (a) imposes a duty to designate exclusive representatives, thereby, triggering the § 6-408 (b) (1) duty to negotiate. No such triggering occurs in Subtitle 5. Subtitle 5, by language identical to that used in Subtitle 4, recognizes the First Amendment rights of noncertificated employees:

"Employees may form and join organization. — Public school employees may form, join, and participate in the activities of employee organizations of their own choice for the purpose of being represented on all matters that relate to salaries, wages, hours, and other working conditions.” § 6-503 (a) (emphasis in original.)

Also, § 6-510 (b), by language identical to that of § 6-408 (b) (1), establishes a duty to negotiate with "designated” employee organizations. However, because we construe § 6-505 (a) to be permissive such that it does not impose an imperative duty of designation, Subtitle 5 does not go so far as to create the substantive right of collective bargaining for noncertificated employees. Thus, it cannot be said that § 6-505 (a), as construed, deprives noncertificated employees of the right of collective bargaining when — apart from that section — no such right is granted noncertificated employees in the first place.

Although Subtitles 4 and 5 are thus distinct with regard to the substantive right of collective bargaining, the procedural provisions of the two subtitles are virtually identical. It is within the procedural realm of Subtitle 5 that appellant bases its claim for mandamus.

II

The facts are not in dispute. In December of 1978, some members of the Charles County Supporting Services Employees Local Union 301 ("the Union”) went before the Charles County Board of Education ("the Board”) requesting the Board to determine the composition of a bargaining unit for the noncertificated public school employees of Charles County and to designate the Union as the exclusive bargaining representative for the unit so designated. At that time, the matter was taken under consideration by the Board. Having received no response to its December requests, counsel for the Union renewed those requests by letter dated April 12, 1979. The Board finally responded by letter dated May 10, 1979, in which it denied the Union’s requests and informed the Union that § 6-505 of the Education Article did not require it to recognize any organization as the exclusive representative for noncertificated employees. Not satisfied, the Union, by counsel, sent a second letter to the Board, this one dated July 10, 1979, simply requesting negotiation with the Board to determine composition of the appropriate bargaining unit and stating that this much was required by § 6-505. With this request apparently unanswered, the Union petitioned the Circuit Court for Charles County for a writ of mandamus that would compel the Board to determine, in negotiation with the Union, the composition of the bargaining unit for noncertificated employees. This petition was filed July 27, 1979. On January 16, 1980, a hearing was held on the matter before Judge Mattingly. On February 13, 1980 and February 20,1980, memoranda of law were submitted by the Board and the Union respectively. A surrebuttal memorandum was filed by the Board on March 4,1980. Subsequently, Judge Mattingly issued a Memorandum Opinion and Order, filed April 2, 1980, denying the Union’s petition. The Union filed a timely appeal with this Court seeking a reversal of the lower court and a remand ordering the petition for mandamus to be granted.

It is a cardinal principle that a writ of mandamus can only issue where, inter alia, the defendant is under an imperative duty to perform that which is sought to be judicially compelled. See Criminal Injuries Compensation Board v. Gould, 273 Md. 486, 514, 331 A.2d 55 (1975). In the present case, Judge Mattingly denied the Union’s petition because he concluded that the Board was under no duty to determine the composition of a bargaining unit for noncertificated employees. We agree with this conclusion.

The Union, both below and in its appeal to this Court, has relied heavily upon the language of Education Article § 6-505 (b):

"Composition of unit. — The public school employer shall determine the composition of the unit in negotiation with any employee organization that requests negotiation concerning the composition of the unit.” (Descriptive heading emphasized in original; other emphasis added.)

Considering the use of the word "shall” in the above-quoted provision and the juxtaposition of this provision with § 6-505 (a) which employs the word "may,” and further perceiving a legislative intent common to both Subtitles 4 and 5 to establish uniform procedures for designating which employee organizations, if any, shall be exclusive bargaining representatives for public employees, we would agree that § 6-505 (b) is of a mandatory nature. Nevertheless, contrary to the Union’s assertion, this conclusion does not resolve the issue presented by this appeal because the mandate of § 6-505 (b) is not triggered so as to impose a present imperative duty unless and until the public employer first decides that it will allow exclusive representation among its noncertificated employees.

To understand the character of § 6-505 (b), it must be viewed in its proper perspective. In effect, the duty identified by § 6-505 (b) is the first procedural step in the designation process detailed by § 6-506. Section 6-506, by language substantially the same as that of its Subtitle 4 analog, § 6-405, sets forth the method to be used for determining which, if any, employee organization is to be designated as an exclusive representative of the unit specified pursuant to § 6-505 (b). Section 6-506 in pertinent part provides:

"(a) Designation as provided in this section. — The designation of an employee organization as an exclusive representative shall be made as provided in this section.
(b) Request for recognition. — If an employee organization certifies to the public school employer that it has a membership enrollment of at least 30 percent of the total number of public school employees in a specified unit in a county as of June 1 of the year in which certification is made, this certification is a request for recognition as exclusive representative of all public school employees in the specified unit in the county.
(c) Election if another organization requests recognition. — If another employee organization certifies that it has a membership enrollment of at least 10 percent of the total number of public school employees in the unit as of the same June 1, an election shall be held in which the public school employees in the unit shall be offered the opportunity to choose:
(1) One of the employee organizations as the exclusive representative of all public school employees in the unit; or
(2) Not to have exclusive representation.
(d) Election if no other organization requests recognition. — If no other employee organization certifies that it has a membership enrollment of at least 10 percent of the total number of public school employees in the unit, on the request of the employee organization under subsection (b) of this section, an election shall be held and the ballot shall offer a choice between:
(1) Exclusive representation by the organization; and
(2) Not to have exclusive representation.
(e) Designation without an election. — The public school employer shall designate the employee organization described in subsection (b) of this section as the exclusive representative of all public school employees in the specifíed unit in a county if:
(1) No other employee organization certifies that it has a membership enrollment of at least 10 percent of the total number of public school employees in the unit;
(2) The employee organization does not request an election under subsection (d) of this section; and
(3) The employee organization certifies that it has a membership enrollment of the majority of the public school employees in the unit in the county.” (Descriptive headings emphasized in original; other emphasis added.)

Thus, together §§ 6-505 (b) and 6-506 prescribe how designation of an exclusive representative for noncertificated employees is to be accomplished. They are mandatory in the sense that designation cannot occur in any other way; that is, public school employers — if they choose to designate an exclusive representative for noncertificated employees — are not free to vary the procedures that these sections prescribe. Nevertheless, to say that designation can occur in only one way is not to say that designation must occur. As already indicated, § 6-505 (a) makes the substantive question of designation discretionary with regard to noncertificated employees. Unless that section is to be flatly contradicted or rendered mere surplusage, it is clear that §§ 6-505 (b) and 6-506 do not, in themselves, impose a substantive duty on public school employers to designate an exclusive representative.

In the absence of a duty or a decision to designate, there can be no duty to undertake the procedures of designation. Hence, there is no duty for a public school employer to engage in the otherwise mandatory designation procedures of §§ 6-505 (b) and 6-506 where that employer has declined to make a designation at all. Accordingly, inasmuch as the Board in the present case exercised its discretion by refusing to designate any employee organization as an exclusive bargaining representative for noncertificated employees of Charles County, it was under no duty to determine, in negotiation with the Union, the composition of the appropriate bargaining unit or units for such employees, and the petition for mandamus was properly denied.

Ill

Anticipating our resolution of the statutory construction issues raised by its appeal, the Union argues alternatively in its brief that § 6-505, as construed, denies noncertificated employees equal protection of the laws in violation of both the Fourteenth Amendment and the Maryland Declaration of Rights. According to the Union, if § 6-505 does not afford noncertificated employees the same right of collective bargaining enjoyed by their certificated counterparts, then that statutory provision discriminates against noncertificated employees in connection with a "fundamental right” and cannot be sustained absent a "compelling governmental interest.” Clearly, the Union has confused the right to organize with the right to collectively bargain. It will be recalled that though the former is a fundamental right, the latter is not. Smith v. Arkansas State Highway Employees, Local 1315, Newport News Fire Fighters Association Local 794 v. City of Newport News, Virginia, both supra. Hence, inasmuch as Subtitle 5 explicitly recognizes the right of noncertificated employees to "form, join, and participate” in unions, and § 6-505 only distinguishes between certificated and noncertificated employees with respect to the right of collective bargaining, the constitutional validity of the distinction so drawn is properly determined by reference to the "rational basis” test. Whether § 6-505 is purely economic in character and is, therefore, subject to only the traditional rational basis test, or is more than economic and affects an "important personal interest,” thereby demanding more stringent application of that same standard, see Attorney General of Maryland v. Waldron, S.T. 1980, No. 45 (C.A., filed 3/13/81), we need not here decide. In either case, we think it well settled that "one who assails a legislative classification (on equal protection grounds) must sustain the burden of proving that it does not rest on any reasonable basis. ...” Carter v. State, 38 Md. App. 400, 404, 381 A.2d 309, cert. denied, 282 Md. 730 (1978), (quoting from Prince George’s County v. McBride, 268 Md. 522, 532, 302 A.2d 620 (1973)). That burden has not been met here, for the Union did not show that there is no ground of difference between certificated and noncertificated employees, nor did it show that, given a ground of difference, there is no substantial relationship between that ground and the object of the legislation.

The equal protection claim here considered was not raised, in the pleadings or otherwise, either prior to or during the hearing held on the Union’s petition for writ of mandamus. It appears from the record that the question was first raised by memorandum submitted subsequent to the hearing. The record does not indicate that any evidence was offered to suggest why the distinction drawn by Subtitles 4 and 5 is not rationally or substantially related to the plain differences distinguishing certificated and noncertificated employees. Indeed, the Union’s constitutional claim below, as well as before this Court, is based solely on the naked allegation that "[t]here is no justification to treat these two groups differently...Under these circumstances, it cannot be doubted that the Union has failed to sustain its burden; it "has not overcome the presumptions which favor the constitutionality of a duly enacted statute.” Carter, supra.

Judgment affirmed; costs to be paid by appellant.

      . The National Labor Relations Act specifically excludes states and political subdivisions thereof from its application. 29 U.S.C. § 152 (2) (1976).

      . "Public School Employee” in the context of Subtitle 4 always refers to certificated employees and is defined by § 6-401 (c) as "a certificated professional individual who is employed by a public school employer or an individual of equivalent status in Baltimore City, except for a county superintendent or an individual designated by the public school employer to act in a negotiating capacity as provided in § 6-408 (b) of this subtitle. ...”
      "Public School Employee” in the context of Subtitle 5, dealing with noncertificated employees, always refers to a noncertificated employee and is defined by § 6-501 (f) as "a noncertificated individual who is employed for at least 9 months a year on a full-time basis by a public school employer....”

      . Ch. 719 of the Acts of 1974.

      . Subtitle 5 specifically exempts six counties and Baltimore City from its application. Charles County, of course, is not exempted.

      . It should be understood that although public school employers have discretion to permit or deny exclusive representation of their noncertificated employees, the employers may not compel exclusive representation.

      . Charles County Supporting Services Employees Local Union 301 is a group of noncertificated public school employees of Charles County comprised of custodians, maintenance workers, secretaries, cafeteria workers and teachers aids.

      . Section 6-505 (b) is the analog to § 6-404 (b) discussed above.

      . It is clear that noncertificated employees do not constitute a "suspect” class so as to invoke strict scrutiny. See generally Attorney General of Maryland v. Waldron, S.T. 1980, No. 45 (C.A., filed 3/13/81).