author: Gilbert, C. J.,

text:
    STATE OF MARYLAND v. THOMAS MONROE McGHEE
    [No. 1698,
    September Term, 1981.]

      Decided July 14, 1982.

    The cause was argued before Gilbert, C. J., and Morton, J., and W. Albert Menchine, Associate Judge of the Court of Special Appeals (retired), specially assigned.

      Alexander L. Cummings, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Warren B. Duckett, Jr., State’s Attorney for Anne Arundel County, Gerald K. Anders, Assistant State’s Attorney for Anne Arundel County, Gerald D. Glass, State Prosecutor,
      and Charles Burton Frey, Assistant State Prosecutor, on the brief, for appellant.

      Gary W. Christopher, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

THE ISSUE

The important question put to us by the State in the instant case is whether the State Prosecutor possesses the power to obtain a wiretap order so as to intercept telephone messages between persons suspected of bribery. If the answer to the interrogatory is in the affirmative, we will be required to reverse the judgment of the Circuit Court for Anne Arundel County and remand the case for trial.

Should the State Prosecutor be excluded from the narrowly restricted class of persons permitted to apply for and obtain wiretap orders, Thomas M. McGhee, the appellee, his culpability, if any, notwithstanding, will walk away untried, much less unconvicted. This is so because the illegally-gathered evidence must be suppressed.

THE FACTUAL PREDICATE —

The attempted bribery of Annapolis Police Officers, Sgt. Russell Hall and Det. William Powell, led Chief John C. Schmitt to seek the assistance of the Maryland State Police. The involvement of the State Police, and particularly Sgt. Peter F. Edge, led to the party Edge considered to be the most likely to furnish legal guidance and ultimate prosecution, the State Prosecutor.

Using a "body wire,” the police recorded incriminating statements made by Richard E. Lomax. Unfortunately, efforts to learn from Lomax the identity of the "Boss man” fell short of the mark. Apparently because the "body wire” failed to produce the desired result, the State Prosecutor made an application for an order sanctioning a wiretap on certain listed telephones. The application was supported by the affidavit of Sgt. Edge.

The substantive sufficiency of the affidavit or application is not under attack, and no useful purpose will be served by detailing the allegations contained in the application or the affidavit. It is enough to know that the warrant and documents in support thereof were legally sufficient if the State Prosecutor is a proper person to obtain a wiretap order.

As a result of the information obtained through the "body wire” and the ultimate telephone "taps,” the appellee and 10 other defendants were charged in a 17-count indictment including nine counts of bribery, one count of conspiracy to violate the bribery laws, one count of obstruction of justice, two counts of conspiracy to obstruct justice, one count of misconduct in office, one count of possession of lottery paraphernalia, one count of keeping a place for operation of a lottery, and one count of conspiracy to violate lottery laws.

The appellee moved, pursuant to Md. Rule 736, to suppress the evidence obtained "as a result of an illegal search and seizure and the use of a wiretap and electronic eavesdropping.”

Following a hearing, the judge granted the motion to suppress the wiretap evidence and also granted appellee’s motion to dismiss. This appeal ensued.

THE LAW —

Before the creation of the office of the State Prosecutor there was no single prosecutorial official cloaked with the authority to initiate and conduct multi-county investigations into criminal activity.

State’s Attorneys, historically, have been limited in their powers to the prosecution of crimes perpetrated within the territorial confines of the particular county, or the City of Baltimore, that the State’s Attorney is elected to serve.

The Attorney General of the State, even though a State-wide official, is subject to severe constitutional restrictions as far as criminal investigations are concerned. The State Constitution, Article V, § 3, limits the Attorney General’s venture into criminal investigations to two instances: 1) when he has been directed by an act of the General Assembly or a joint resolution of that body to conduct such an investigation; 2) when ordered by the Governor to conduct the investigation.

Recognizing that some prosecutorial arm with State-wide power was needed, the Executive and Legislative Branches of Government submitted to the voters of Maryland a Constitutional Amendment "clarifying the authority and duties of the Attorney General.” Laws 1976, Ch. 545. The voters adopted the amendment at the General Election of November 2, 1976.

Laws 1976, Ch. 612, enacted in anticipation of the favorable voter reaction to the clarification of the authority of the Attorney General, now codified as Md. Ann. Code art. 10, § 33A-33F, set out with particularity the qualifications, duties, appointment, and removability of the State Prosecutor.

Md. Ann. Code art. 10, § 33B (a) conferred upon the State Prosecutor, inter alia, the following "duties, powers, and responsibilities ...[:]

(b) ... Except with respect to offenses alleged to be committed by himself or members of his staff, he may, on his own initiative, or at the request of the Governor, the Attorney General, the General Assembly, The State Ethics Commission, or a State’s attorney, investigate:
(1) Criminal offenses under the State election laws;
(2) Criminal offenses under the State Public Ethics Law;
(3) Violations of the State bribery laws in which an official or employee of the State or of a political subdivision of the State or of any bicounty or multicounty agency of the State was the offeror or offeree, or intended offeror or offeree, of a bribe;
(4) Offenses constituting criminal malfeasance, misfeasance, or nonfeasance in office committed by an officer or employee of the State or of a political subdivision of the State or of any bicounty or multicounty agency of the State. Any person who is advised by the State Prosecutor that he is under investigation may, at his discretion, release this information including any results pertaining to him to the public; and
(5) Violations of the State extortion, perjury, and obstruction of justice laws related to any activity described in subsection (b)(1) through (4).
(c) ... At the request of either the Governor, Attorney General, General Assembly or a State’s attorney, the State Prosecutor may investigate criminal activity conducted or committed partly in this State and partly in another jurisdiction, or which is conducted or committed in more than one political subdivision of the State.”

Pursuant to the provisions of Md. Ann. Code art. 10, § 33B (c), Governor Harry Hughes, on July 13, 1981, directed the State Prosecutor to investigate "allegations of bribery related to the payment of monies to members of the Annapolis City Police Department, which payments were allegedly made for the purpose of protecting participants in a multi-jurisdictional illegal lottery operation being conducted between Baltimore City, Maryland and Annapolis City, Anne Arundel County, Maryland.” Patently, the alleged offenses, because of their multi-political sub-divisional nature, fell within the ambit of the State Prosecutor.

Ten days after the Governor had directed that the State Prosecutor investigate the matter, the State Prosecutor presented to a judge of the Circuit Court for Anne Arundel County, an application for a wiretap order. The application recited in part that the State Prosecutor had "authority to make this Application for an Ex Parte Order authorizing a Wiretap pursuant to Article 10, Section 33B (g) of the Annotated Code of Maryland.. . .” Whether the State Prosecutor actually had that authority is the precise issue before us.

We observe that before the General Assembly enacted the present wiretap and electronic surveillance law, Md. Cts. & Jud. Proc. Code Ann. §§ 10-401 — 10-413, wiretaps in Maryland were governed by three distinct statutes, one federal and two State. State v. Siegel, 13 Md. App. 444, 285 A.2d 671, aff'd, 266 Md. 256, 292 A.2d 86 (1972). The current Maryland Wiretap Law tracks the federal act. We look then to the Omnibus Crime Control and Safe Streets Act of 1968 for guidance in interpreting Maryland law, when the Court of Appeals or this Court has not heretofore addressed the subject.

The United States Code, Congressional and Administrative News, 90th Congress, Second Session (1968), Vol. 2, Legislative History, p. 2187, in speaking of the proposed 18 U.S.C. § 2516 (2), states:

"No application [for wiretap or electronic surveillance orders] may be authorized unless a specific State statute permits it. The State statute must meet the minimum standards reflected as a whole in the proposed chapter. The proposed provision envisions that States would be free to adopt more restrictive legislation, or no legislation at all, but not less restrictive legislation. State legislation enacted in conformity with this chapter should specifically designate the principal prosecuting attorneys empowered to authorize interceptions.”

18 U.S.C. § 2516 provides in pertinent part:

"The principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision thereof, if such attorney is authorized by a statute of that State to make application to a State court judge of competent jurisdiction for an order authorizing or approving the interception of wire or oral communications .. . .”

The Maryland statute concerned with the identity of the person authorized to make application for a wiretap order is Courts Art. § 10-406. That section provides:

"The Attorney General or any State’s attorney may apply to a judge of competent jurisdiction, and the judge, in accordance with the provisions of § 10-408 of this article, may grant an order authorizing the interception of wire or oral communications by investigative or law enforcement officers when the interception may provide or has provided evidence of the commission of the offense of murder, kidnapping, gambling, robbery, bribery, extortion, or dealing in controlled dangerous substances, or any conspiracy to commit any of the foregoing offenses. No application or order shall be required if the interception is lawful under the provisions of § 10-402 (c) of this subtitle.” (emphasis supplied.)

The argument in support of the hearing judge’s action in dismissing the indictment is that the State Prosecutor is neither the Attorney General nor a State’s Attorney. Hence, using that reasoning, the State Prosecutor was without authority to seek a wiretap order, any order granted to him is a nullity, and the evidence gleaned by and through such an order is inadmissible.

While it may be argued that the State Prosecutor is the "principal prosecuting attorney” for the purpose of investigating "[v]iolations of the State bribery laws,” Md. Ann. Code art. 10, § 33B (b) (3), the State Prosecutor is neither the Attorney General nor a State’s Attorney. The State legislation, Courts Art. § 10-406, enacted in conformity with 18 U.S.C. §§ 2510-2520, does not "specifically designate” the State Prosecutor as an attorney "empowered to authorize interceptions.”

We think, therefore, that Judge Wolff was correct in dismissing the indictment against the appellee.

Order dismissing indictment afñrmed.

Costs to be paid by Anne Arundel County.

      . The Constitutional Amendment, submitted to the voters as "Question No. 9,” was ratified by a vote of 604,723 to 171,265.

      . Laws 1976, Ch. 612, would have been null and void if the voters had rejected the Amendment to the Constitution.

      . 18 U.S.C. §§ 2510-2520.

      . Former Md. Ann. Code art. 35, §§ 92-99 and Md. Ann. Code art. 27, §§ 125 A-C.

      . Gilbert, A Diagnosis, Dissection, and Prognosis of Maryland’s New Wiretap and Electronic Surveillance Law, 8 U. of Balto. L. Rev. (1979) 183-221.

      . Ibid.

      7. The Maryland Wire and Electronic Surveillance Law is in a number of respects more stringent than its federal counterpart. For example, 18 U.S.C. 2511 (2)*(c) permits an interception when one of the parties to the communication has given prior consent. Maryland law, on the other hand, requires prior consent of all parties to the communication. Courts Art. § 10-402 (c) (3). See generally, Gilbert, supra, note 5.

      . We are aware of the fact that the 1982 Session of the General Assembly, apparently in direct response to the circuit court ruling in the instant case, amended section 10-406 by inserting the words "State Prosecutor” therein between "Attorney General,” and "or any State’s Attorney.”


source: Caselaw Access Project

author: Wilner, J.,

license: Public Domain

text:
    ROBERT FRANCIS HANSON et al. v. HARRY R. HUGHES et al.
    [No. 1702,
    September Term, 1981.]

      Decided July 15, 1982.

      The cause was argued before Wilner, MacDaniel and Weant, JJ.

      Isaac S. Kershner, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender of Maryland on the brief, for appellants.

      George A. Eichhorn, III, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General of Maryland, on the brief, for appellees.
   Wilner, J.,

delivered the opinion of the Court.

Md. Code art. 41, § 122 (a) makes it the duty of the Maryland Parole Commission to request its administrative arm, the Division of Parole and Probation, "to make such investigation as may enable the Commission to determine the advisability of granting parole to persons sentenced to a term of 90 days or more under the laws of this State ... whenever the prisoner shall have served in confinement one fourth of the term or consecutive terms.”

Section 122 (b) of art. 41, however, provides that:

"No person who has been sentenced to life imprisonment shall be eligible for parole consideration until he shall have served fifteen years or the equal of fifteen years when considering [pretrial detention and statutory credits against the sentence for good behavior and participation in approved work and educational programs]. Prisoners serving terms of life imprisonment shall only be paroled with the approval of the Governor.”

Facially, these two subsections are not inconsistent. They create two categories of prisoners for purposes of parole — those sentenced to life imprisonment, and all others sentenced to a term of ninety days or more. The former must serve the statutory equivalent of fifteen years before becoming eligible for parole consideration, and even then they may actually be paroled only with the approval of the Governor. The latter — all others — are eligible for parole consideration at any time, and they must be considered after serving one-quarter of their sentence. They need not, of course, actually be paroled at that time (or at any time); but the Division of Parole and Probation must at least investigate their qualification for parole.

Thfe problem arises when the sentencing court imposes a life sentence but, acting pursuant to its authority under Md. Code art. 27, § 641A (a), suspends execution of all of it save a fixed number of years. When, in that circumstance, is the prisoner entitled to be considered for parole — when one-quarter of the unsuspended term has been served or not until the expiration of fifteen years (or its statutory equivalent)?

The issue comes before us through a petition for declaratory judgment filed in the Superior Court of Baltimore City by three Division of Correction inmates serving "partially suspended life sentences,” on behalf of themselves and a class of like inmates. One inmate (Hanson) received two concurrent life terms for murder, with all but fifteen years suspended on each; a second (Thomas) received a life sentence with all but eleven and one-half years suspended; the third (Bell) received a life sentence with all but twenty-seven years suspended (together with a twenty-five year concurrent sentence). They contend that, pursuant to art. 41, § 122 (a), they are entitled to parole consideration after serving one-quarter of the unsuspended term of years (fifteen, eleven and a-half, and twenty-seven respectively), but that, upon the authority of an Opinion of the Attorney General (61 Op. Att’y Gen. 322 (1976)), the Parole Commission considers them subject to the constraints of § 122 (b) and declines to consider them for parole prior to the expiration of fifteen years (or its statutory equivalent).

The inmates argue that § 122 (b) is inapplicable to them and the members of their class, that the Attorney General’s Opinion and the policy of the Parole Commission adopted pursuant to it are wrong, and that the Commission by reason of its policy has unlawfully discriminated against them in contravention of the "equal protection” clause of the Fourteenth Amendment to the United States Constitution and art. 23 of the Maryland Declaration of Rights. They asked for a declaratory judgment that the application of § 122 (b) to prisoners serving partially suspended life sentences is illegal, that the aforementioned opinion of the Attorney General is "invalid, null and void,” and that the Parole Commission "shall apply forthwith the parole provisions of [§ 122 (a)] to the .. . plaintiffs.”

The Attorney General, on behalf of the Parole Commission and the other defendants, answered the petition, contesting the inmates’ underlying legal premise and asking that the relief prayed be denied. After considering certified docket entries evidencing the status of the three named petitioners and arguments of counsel, the court, on November 17,1981, entered a declaratory judgment that § 122 (b) was applicable to the petitioners, and that, as a result, they were not eligible for parole consideration until they served the minimum time required thereby. This appeal ensued.

(1) Procedural Prelude

As noted, this proceeding was filed as a class action pursuant to Maryland Rule 209. The State has raised no objection to that procedure, and we see nothing in the record before us to suggest that it is inappropriate. We mention this only because, from the record before us, it appears that two of the named petitioners (Hanson and Bell) may not have been entitled to mandatory parole consideration at the time the petition was filed (July 29, 1981) even under § 122 (a), and thus, as to them, there may have been no justiciable controversy at that time. As the record indicates that Thomas would have been eligible for mandatory review under § 122 (a), however, and given the lack of apparent impropriety with the class action procedure, we shall address the merits of the controversy upon the premise that the issue raised by Thomas and other inmates in his class is presently justiciable and thus properly before us.

(2) Statutory Construction

Section 122 (b) contains two different limitations with respect to life prisoners. The first sentence, as noted, states that no person "who has been sentenced to life imprisonment” is eligible for parole consideration until he serves the statutory equivalent of fifteen years. The second sentence states that prisoners "serving terms of life imprisonment” may only be paroled with gubernatorial consent.

This appeal involves only the first provision. The thrust of appellants’ argument before the trial court concerned only the fifteen-year requirement and that is all the court’s declaration addressed. The second provision was neither considered nor decided by the trial court, and therefore is not properly before us. Maryland Rule 1085.

The controlling guidelines for statutory construction are fairly clear. As stated in Koyce v. State of Maryland, Central Collection Unit, 289 Md. 134, 140 (1980), "we strive to ascertain and effectuate the real intention of the Legislature.” To do that, we look first to the language of the statute itself. "When the language is plain and unambiguous, there is no need to look beyond the language itself, which should be given effect in accordance with the plain meaning of the words.” Id., 140. If there is some doubt or ambiguity in the statutory language, a number of extrinsic aids are available in order to discern the true legislative intent, one of which is to consider the legislative history of the enactment in question. See Welsh v. Kuntz, 196 Md. 86, 93 (1950).

In one of the minor parodoxes of this case, both sides look at § 122 (b), immediately reach diametrically opposite interpretations of what it means, and argue nevertheless that there is no ambiguity in the language.

The inmates argue that the phrase "sentenced to life imprisonment” necessarily refers to the unsuspended part of the life sentence and not to the totality of the sentence actually imposed by the court. To construe the language otherwise, they say, would conflict with and effectively restrict the court’s authority under § 641A of art. 27 to impose a “split sentence,” and would serve to defeat the parole system. They point out that the effect of applying § 122 (b) where the unsuspended term is fifteen years or less is to deny the prisoner all opportunity for parole, thus requiring him to serve in confinement the full unsuspended period. Inmates such as Bell, whose unsuspended term exceeds fifteen years, would not become eligible for parole until long after one-quarter of the unsuspended term has been served. This, they claim, is unfair and unreasonable when compared with inmates having flat sentences for an equivalent number of years.

The State responds that that distinction was an intentional (and a permissible) one — that "lifers” were meant to be treated differently and may properly be so treated. It argues that the 1976 opinion of the Attorney General is correct, and that by failing to amend § 122 (b) since 1976, the Legislature has acquiesced in the Attorney General’s interpretation.

We do not find the “legislative acquiescence” argument to be particularly persuasive in the context of this case, but we do believe that the State’s construction of the statute is the proper one. It is a construction compelled by a logical and literal reading of § 122 (b) in pari materia with § 641A of art. 27.

Section 641A confirms what had previously been judicially determined — that there is a distinction between suspending the initial imposition of a sentence and suspending execution of a sentence already (or contemporaneously) imposed. See Knight v. State, 7 Md. App. 313 (1969), and cf. State ex rel. Sonner v. Shearin, 272 Md. 502, 506, n. 2 (1974); Skinker v. State, 239 Md. 234 (1965). See also Municipal Court of Toledo v. State ex rel. Platter, 184 N.E. 1 (Ohio 1933).

The first sentence of § 641A authorizes a court, upon entering a judgment of conviction, to "suspend the imposition or execution of sentence and place the defendant on probation....” (Emphasis supplied.) In context, that provision necessarily refers to a suspension of the entire sentence; either a sentence is not imposed at all or, if it is, execution is suspended in its entirety in lieu of probation.

The second sentence of § 641A is what authorizes the "split sentence,” and it is worded quite differently. It says nothing about partially suspending imposition of a sentence. Rather, it provides that "[t]he court may impose a sentence for a specified period and provide that a lesser period be served in confinement, suspend the remainder of the sentence and grant probation....” (Emphasis supplied.)

The clear import of this is that the power of partial suspension relates only to suspension of execution. The court must impose the full sentence; it may then suspend execution of a part of it. The effect of such a partial suspension is as stated in Picklesimer v. State, 176 S.E.2d 536, 538 (S.C. 1970) — that: "When a portion of a sentence is suspended it merely means that a person is permitted to serve a portion of his sentence at home. The sentence is the total of the part served at the prison and at home.” See also State v. Germany, 57 S.E.2d 165 (S.C. 1949).

It follows, then, that where the sentence imposed was life imprisonment, notwithstanding that execution of a part of that sentence has been suspended under the second sentence of § 641A, for purposes of § 122 (b), the inmate "has been sentenced to life imprisonment” and not merely to the unsuspended part of it which he must serve in confinement. See, again, Picklesimer v. State, supra; also Mims v. State, 259 S.E.2d 602 (S.C. 1979).

We do not regard such a construction as in any way restricting the authority of the courts to act under § 641A. Indeed, that question was put to rest in State v. Wooten, supra, 277 Md. 114. The Court there observed that § 122 (b) was directed at the Executive branch of the State government, whereas § 641A was directed at the judiciary. It concluded:

"It is simply not illogical to suppose that both of these provisions may govern sentences issued pursuant to § 413 [mandatory life sentence for non-capital first degree murder]. Further, the fact that the Legislature sought to limit the executive branch’s power to parole criminals with life sentences does not mean it intended similarly to attenuate the discretion it granted the judicial branch to suspend sentences.” Id. at 119.

See also Williamson v. State, 284 Md. 212 (1979).

There is no inconsistency between the two provisions. In considering whether to suspend any part of a life sentence — particularly a mandatory life sentence — a court likely will take into account the provisions of § 122 (b), and may decide to grant the partial suspension only upon the premise that the defendant will in fact be confined for the full unsuspended term, up to fifteen years. To that extent, when the aggregate sentence imposed is life imprisonment, the "split sentence” will, as appellants complain, serve to preclude early parole consideration; but that is a preclusion clearly authorized by the Legislature, and we can find no fault with it. As we stated in Dennis v. Warden, 12 Md. App. 512, 514 (1971): "[T]here is no constitutional right to be paroled, and we see no equal protection denial in a statute which requires persons sentenced to life imprisonment to serve fifteen years of that sentence before becoming eligible for parole....”

Judgment affirmed; appellants to pay the costs.

      . This requirement has been implemented by regulations of the Parole Commission. See, in particular, COMAR 12.08.01.17A (1): "All prisoners sentenced to a term of 6 months or more shall receive a parole hearing after serving not more than one-fourth of their sentence, or in the case of multiple sentences, one-fourth of their total combined sentences.” Compare COMAR 12.08.01.17A (3) dealing with prisoners under life sentence.

      . Section 641A (a) provides in relevant part:
      "Upon entering a judgment of conviction, the court having jurisdiction may suspend the imposition or execution of sentence and place the defendant on probation upon such terms and conditions as the court deems proper. The court may impose a sentence for a specified period and provide that a lesser period be served in confinement, suspend the remainder of the sentence and grant probation for a period longer than the sentence but not in excess of five years, however, if the defendant consents in writing, the court may grant probation in excess of 5 years, but only for purposes of making restitution.”
      In State v. Wooten, 277 Md. 114 (1976), the Court of Appeals held that the authority in § 641A (a) to suspend the execution of all or part of a sentence extended to mandatory life sentences, such as under art. 27, § 413 (first degree murder), and that a court could, therefore, impose a life sentence and suspend the serving of all but the first eight (or other number of) years.

      . In a sad commentary on the state of our society, the petition avers that "[t]he members of the class are so numerous that joinder of all members is impossible or impracticable.”

        . Named as defendants, in addition to the members of the Parole Commission, were the Governor and the Secretary of Public Safety and Correctional Services.

      . The record with respect to Hanson is unclear. It shows that on March 23,1978, he received a sentence of life imprisonment "except for 15 years” plus two concurrent five-year terms. On August 18,1978, the sentence was revised, apparently to make clear that the main sentence was life with all but fifteen years suspended. The record does not indicate whether Hanson received credit for pretrial detention or what, if any, statutory credits he had earned prior to the July 29, 1981, petition. Absent such credits, he would not have served a quarter of the unsuspended fifteen-year term until December, 1981 (three years, nine months from March 23, 1978).
      As to Bell, the record shows that on March 21, 1980, she received a sentence under count four of life imprisonment with all but twenty-seven years suspended, to run concurrently with a five-year sentence under the third count. She also received a twenty-year sentence under count five, to run consecutively to the five years under count three. As to all the sentences, she was given 209 days credit for time already served. Once again, the record does not indicate what, if any, statutory credits were earned by Bell prior to the July 29, 1981, petition. Given the twenty-seven year unsuspended term, dating from August, 1979, it seems apparent that even if § 122 (a) were applicable to her in lieu of § 122 (b), she would not have been entitled to mandatory parole consideration until sometime in 1985 or later.
      Thomas’s sentence read as follows: imprisonment for life; "further ordered that eleven and one-half (IIV2) years from 1/1/77 be served in confinement, the remainder of the sentence is suspended and probation is granted for a period of five (5) years with minimal supervision.” He would have served one-quarter of the unsuspended period during 1979.

      . Each of the appellant inmates has received what is sometimes referred to as a "split sentence.” Such a sentence is defined in the Parole Commission regulations (COMAR 12.08.01.17A (4) (b)) as one "for a term diminished by the suspension of a portion of it by the sentencing court.”

      . Because we believe that § 122 (b) is clear and unambiguous, and may properly be read in pari materia with § 122 (a) and with § 641A, there is no need to relate the long, but interesting, legislative history of its dual provisions. Suffice to say that such history fully supports the conclusion that we reach — that at least since 1953, the Legislature has manifested an intent to treat persons under life sentences differently from other inmates with regard to consideration for parole.


author: Bishop, J.,

text:
    THE MAYOR AND ALDERMEN OF THE CITY OF ANNAPOLIS v. WIMBLETON, INC. et al.
    [No. 1704,
    September Term, 1981.]

      Decided July 15, 1982.

    The cause was argued before Morton, Weant and Bishop, JJ.

      Richard G. Anderson, City Attorney for Annapolis and Richard T. Wright, Assistant City Attorney for Annapolis, with whom was Roger A. Perkins, Assistant City Attorney for Annapolis, on the brief, for appellant.

      Karen Alexa Murphy, Assistant County Solicitor for Anne Arundel County, with whom was Steven P. Resnick, County Solicitor for Anne Arundel County, on the brief, for appellees.
   Bishop, J.,

delivered the opinion of the Court.

The Mayor and Aldermen of the City of Annapolis, collectively the appellant, appeals from an order of the Circuit Court for Anne Arundel County. By that order, filed on November 20, 1981, the circuit court declared that:

1) Md. Ann. Code, Art. 23A, § 19 (u) is a valid and constitutional enactment;
2) Anne Arundel County Bill No. 152-80 is a valid enactment registering Anne Arundel County’s disapproval of a certain annexation resolution made by the City of Annapolis; and
3) A prayer by the City of Annapolis for injunctive relief, requesting that Anne Arundel County be precluded from submitting the annexation resolution to a referendum vote by the County electorate, was denied.

On appeal the appellant asks inter alia:

"Does Subsection (u) constitutionally comport with Sections 1 and 2 of Article XI-E of the Maryland Constitution when it legislates with regard to the organization, government, and affairs of municipal corporations in Anne Arundel County in a manner which impermissibly classifies those municipal corporations on a basis other than population?”

For the reasons set forth in this opinion we answer negatively this question and, therefore, reverse the order of the circuit court.

The Facts

The City of Annapolis (the City) is a municipal corporation of the State of Maryland; Anne Arundel County (the County) is a Maryland charter county, and is one of the appellees.

By a deed dated August 23, 1978, Wimbleton, Inc., the other appellee, owns a certain uninhabited and unimproved parcel of land containing approximately 188.35 acres. This land, referred to by the parties as the Wimbleton tract, is located between Spa Road, Harness Creek Road, and Forest Drive, and is contiguous to the boundaries of the City as they existed prior to August 11, 1980. Water service to areas adjacent to the tract is provided by the City’s facilities, while waste-water and sewage services are supplied by facilities jointly operated by the City and the County.

On or about April 9,1980, Wimbleton, Inc., duly petitioned the City to annex the Wimbleton tract to the property included within the City’s geographic and jurisdictional boundaries. After reviewing this petition, John C. Apostol, then Mayor of the City, introduced City Resolution R-35-80 before the City’s legislative body. This resolution proposed the annexation and change of municipal boundaries requested in the petition of Wimbleton, Inc. Following the introduction of this resolution, public hearings thereon were scheduled and advertised and the City informed the County of the time of one such hearing and of the nature of the annexation. On August 11, 1980, the Mayor and Aldermen of the City enacted Resolution R-35-80, and on September 30, 1980, the Wimbleton tract was annexed to the property included within the boundaries of the City. At no time did the County ever file with the City any petition for a referendum on the issue of the annexation.

On December 1, 1980 the County Council passed County Bill No. 152-80. This bill, which was approved by the County Executive on December 2, 1980, registered the County’s disapproval of the City’s annexation resolution R-35-80. Moreover, the bill called for submission of the annexation resolution to a November 2, 1982 referendum of the Anne Arundel County electorate for their approval or rejection, and asserted that the "effectiveness of the annexation resolution” was suspended pending the referendum.

The appellant commenced this action against the appellees seeking declaratory and injunctive relief. This relief was denied by the circuit court’s order of November 20, 1981.

I. Constitutionality of Md. Ann. Code, Art. 23A, § 19 (u)

In its bill of complaint for declaratory and injunctive relief filed with the circuit court, the appellant alleged as grounds for relief:

"19. The County’s authority to enact Bill No. 152-80 (and the effectiveness of said bill) is based exclusively on said subsection (u) of Section 19 of Article 23A of the Annotated Code of Maryland. For the reasons hereinafter set forth, said subsection (u) of Section 19 of Article 23A of the Annotated Code of Maryland is unconstitutional, void, and of no effect; and, therefore, the County’s Bill No. 152-80 is likewise void and of no effect.
20. Subsection (u) of Section 19 of Article 23A of the Annotated Code of Maryland is unconstitutional, void and of no effect in that it constitutes local legislation prohibited by Section 1 of Article XI-E of the Constitution of Maryland.”

The General Assembly is empowered under Article III, § 48 of the Maryland Constitution to form municipal corporations. The General Assembly’s regulation of these municipal corporations is restricted under Article XI-E, § 1 which provides:

"Except as provided elsewhere in this Article, the General Assembly shall not pass any law relating to the incorporation, organization, government, or affairs of those municipal corporations which are not authorized by Article 11-A of the Constitution to have a charter form of government which will be special or local in its terms or in its effect, but the General Assembly shall act in relation to the incorporation, organization, government, or affairs of any such municipal corporation only by general laws which shall in their terms and in their effect apply alike to all municipal corporations in one or more of the classes provided for in Section 2 of this Article. It shall be the duty of the General Assembly to provide by law the method by which new municipal corporations shall be formed.” (Emphasis added).

In Article 23A of the Code is Section 19 dealing with the powers of municipal corporations to enlarge their corporate boundaries by annexation. Specifically, subsection (a) of this Section 19 expressly provides that "[t]he legislative body . .. of every municipal corporation in this State may enlarge the corporate boundaries thereof as in this subheading provided; ...” As noted by the Court of Appeals, Section 19 provides a procedure whereby

"Every municipal corporation may annex contiguous land not within the boundaries of another municipality, either on the initiative of the city or town or of the residents of the area.... In every case the residents or the person, firm or corporation have a final veto by way of a referendum election.” Mayor and Council of Rockville v. Brookeville Turnpike Construction Co., Inc., 246 Md. 117, 129, 228 A.2d 263, 270 (1967).

In 1975, the General Assembly amended this procedure by enacting Laws of Maryland, 1975, Chapter 781 to add what is now Subsection (u). This Subsection gives Anne Arundel County the additional power to register its disapproval of an annexation resolution by one of the two municipal corporations located within its geographical boundaries and thereby to require a referendum of the electorate of the County.

In pertinent part, Subsection (u) provides:

"(u) Referendum in Anne Arundel County. — (1) Anne Arundel County, by ordinance enacted according to its regular legislative procedure, may register its disapproval of the annexation resolution and provide for the submission of the resolution to a referendum vote of the electorate of the entire county at the next ensuing general election of the county for the members of the House of Representatives of the United States which is held at least 45 days after the enactment of the ordinance. The ordinance shall not be valid unless enacted . .. before the expiration of 120 days after the enactment of the annexation resolution by the municipal corporation if no petition for referendum is filed under either of these subsections. The county ordinance passed pursuant to this subsection shall have the effect of suspending the effectiveness of the annexation resolution until after the referendum. If no valid ordinance is enacted by the county pursuant to this section within the time herein specified, the annexation resolution of the municipal corporation shall have the same effect as if this subsection had not been enacted.”

Addressing the issue of Subsection (u)’s constitutionality vis-a-vis Section 1 of Article XI-E of the Maryland Constitution, the Circuit Court held:

"Article XI-E, § 1 prohibits the General Assembly from enacting any law 'relating to the incorporation, organization, government, or affairs’ of municipal corporations. It is within the province of the court, viewing the totality of the circumstances, to determine whether any enactment of the General Assembly is a prohibited local law or a valid general law. Prince George’s County v. Laurel, 262 Md. 171, 277 A.2d 262 (1971), and Birge v. Town of Easton, 274 Md. 635, 337 A.2d 435 (1975).
The Standard to be applied by the court in reaching this conclusion is clearly enumerated in the Birge case (supra), where the court held that:
'[i]f the effect of local rules or municipal control is not great upon people outside the home-rule city, the matter is apt to be deemed local.
Contrariwise, if the effect of the regulation or the administration of a particular matter is likely to be felt by a considerable number of people outside the city and in a rather strong degree, courts are probably going to conclude that the concern is for the state.’
Supporting the Birge holding are the decisions rendered in Dasch v. Jackson, 170 Md. 251, 183 A. 534 (1936), where the Court held that a law which affects persons residing beyond a municipality could hardly be a local law, and Balto. Transit Co. v. Metro Transit Auth., 233 Md. 509, 194 A.2d 643 (1963), where the Court opined that although a law may apply to or in a municipality it is not for that reason a 'local law’ and thus barred by the constitution.
In considering this matter, the Court has reviewed the aforementioned case law, the preamble to Chapter 781 of the Laws of 1975 which enacted subsection (u), wherein the legislature anticipated that municipal annexations could have far reaching impact, and the testimony of Ms. Becky Kurdle, County Planning and Zoning Administrator, who indicated that there would be substantial impact beyond the City if the proposed annexation were carried out. On this bases [sic], the Court finds that Subsection (u), Article 23A, § 19 is a valid general law that has substantial impact beyond the City, and therefore does not violate Article XI-E, § 1.”

The appellant contends that annexation defines "the area of jurisdiction of the municipal corporation,” and that nothing is "more basic to a municipality than is the very definition of its jurisdictional boundaries.” The appellant asserts, on the basis of the importance of the City’s annexation process, that the County could not constitutionally have been provided with authority to affect that process by means of a local law.

Preliminarily we disagree with the appellant’s contention that Md. Ann. Code, Art. 23A, § 19 (u), which purports to authorize the electorate of Anne Arundel County to register its disapproval of the City’s annexation resolutions, is a "special or local” law, and, therefore, in violation of Article XI-E, § 1 of the Maryland Constitution. This holding is compelled by the case authority which interprets the meaning of the phrase "local law.”

Although Article XI-E does not define "local law,” the Court of Appeals has frequently interpreted the meaning of that phrase. In Dasch v. Jackson, 170 Md. 251, 183 A. 534 (1936), the Court held that a statute, regulating paperhangers in Baltimore City, was not a local law within the meaning of Article XI. Judge Offut cited Bradshaw v. Lankford, 73 Md. 428, 431, 21 A. 66 (1891) for the proposition that "a law is not necessarily a local law merely because its operation is confined to Baltimore City or to a single county, if it affects the interests of the people of the whole State.” 170 Md. at 259-260. The Court reasoned that:

"Any complete or final definition of the term 'local law’ is, because of the varying meanings attached to it, considered in reference to its geographical extent and the classification of the objects to which it applies, difficult to formulate, and perhaps more difficult to apply with any proper degree of uniformity or certainty. A law may be local in the sense that it operates only within a limited area, but general in so far as it affects the rights of persons without the area to carry on a business or to do the work incident to a trade, profession, or other calling within the area. It may also be general in the sense that it affects some matter in which the people of the whole legislature jurisdiction may be interested, such as the general revenue, but local in the sense that it imposes burdens on property, business, or transactions only within a limited area.” Id. at 260.

In Dasch the Court determined that the paperhangers statute was not local because it imposed taxes payable to the State, and because it affected the right of persons not residing in Baltimore City.

In the present case the lower court found on the basis of witness testimony that Art. 23A, § 19 (u) had "substantial impact” beyond the immediate jurisdiction to which it was addressed. We have no reason to dispute this factual determination; from that finding it must necessarily be concluded that the statute was not a local law.

In Norris v. Mayor and City Council of Baltimore, 172 Md. 667, 681, 192 A. 531 (1937), the Court said:

"While it is difficult to formulate a comprehensive definition of distinction between a public local law and a public general law, it may be said that a 'public local law’ is a statute dealing with some matter of governmental administration peculiarly local in character, in which persons outside of that locality have no direct interest, and a 'public general law’ is one which deals with a subject in which all the citizens of the state are interested alike,. ...”

See Prince George’s County v. Maryland-National Capital Park and Planning Commission, 269 Md. 202, 225, 306 A.2d 223, cert. denied, 414 U.S. 1068 (1973); Cole v. Secretary of State, 249 Md. 425, 433, 240 A.2d 272 (1968). Therefore, subsection (u), affecting persons or property outside the municipality, is a "general law’ as that term is used in Article XI-E, § 1. A general law, such as Md. Ann. Code, Art. 23A, § 19 (u), must in its terms and effect "apply alike to all municipal corporations,” to satisfy the requirements of Article XI-E, § 1 of the Maryland Constitution. Although the appellant never assumes arguendo that Subsection (u) is a general law, and never contends that Subsection (u) is unconstitutional because it fails to comply with the Article XI-E, § 1 requirement of uniformity for general laws, nevertheless, by its challenge to the constitutionality of Subsection (u) the appellant has adequately preserved for this appeal the issues pertaining to Subsection (u)’s constitutionality under Article XI-E, § 1.

Reflecting a desire by the people of Maryland to preclude legislation aimed at only certain specific municipalities, Article XI-E, § 1 "prohibits the General Assembly from enacting legislation effective in a particular municipality unless it applies to all municipalities within a class.” Mayor and Council of Forest Heights v. Frank, 291 Md. 331, 344, 435 A.2d 425 (1981). (Emphasis supplied).

Maryland’s constitutional requirement under Article XI-E, § 1 is analogous to provisions in the constitutions of many states which require that laws of a general nature shall have a uniform operation throughout the State. These provisions serve to assure uniformity and prevent uncertainty that would result from conflicting laws in the same jurisdiction. As stated in 2 McQuillin, Municipal Corporations, § 4.24 at 50 (1979):

"It means that general laws must operate uniformly, that is, in the same manner on all persons and things who stand in the same situation, or who stand in the same relation to the law touching the privileges and immunities granted by it, or the act or acts which it forbids; it does not mean that general laws must operate alike upon all subjects of legislation, or upon all citizens and persons. This provision has reference only to what are termed general laws; by its [sic] valid local legislation is not forbidden. This provision is violated if the law is restrictive in its operation, that is, if it is of a general nature it must operate in all parts of the state, and not in part or parts only.”

The treatise writer relied in part on the decision of Costello v. Village of Wyoming, 30 N.E. 613, 616 (Ohio 1892) in which the Ohio Supreme Court stated:

"[A] law may be general in its provisions, and may apply to the whole of a group of objects having characteristics sufficiently manifest and important to make them a class by themselves, and yet the marks of distinction on which the classification is founded may be such that the law may be in contravention of a constitutional provision prohibiting the enactment of special laws which regulate the internal affairs of towns and cities. If all that is requisite for the purpose of legislation is to designate villages by some quality, no matter what it may be, which will so distinguish them as to mark them as a distinct class, the constitutional restriction in regard to the uniform operation of laws on a general nature would be of no avail, as there are few objects that cannot be arbitrarily associated.”

The more recent case of State ex rel. Keefe v. McInerney, 182 P.2d 28, 38 (Wyo. 1947) was cited for a similar principle in 1 Antieau, Municipal Corporation Law, § 2.15 at 2-48 (1982):

"Nevertheless, it is suggested that the commentators who see in this no additional requirement or limitation beyond that set forth in the ban upon special laws are in error. A law can apply, for instance, to all of a general class within a restricted area of a state, such as to all cities bordering on the ocean, without being uniform throughout the state. 'A law may be general,’ states the Wyoming Supreme Court, 'but not of uniform application.’ Conversely, as that tribunal points out, 'if that uniformity of operation is absent the law is not necessarily special or local.’ And it has been noted that even though the classification is not violative of the ban upon special laws, laws favoring one class of municipal corporations over others of the same kind may be unconstitutional as not of uniform operation. 'If unequal powers are granted to any class of cities or towns,’ states the Wyoming Supreme Court, 'then there would seem to be an absence of uniform operation in the law. Conversely if the several classes each have been granted the identical powers no want of uniformity of operation would seem to exist.’ ”

In Maryland the principle of uniformity for general laws set forth under Article XI-E, § 1 has been recognized, but only rarely has the need arisen to invoke the principle. See Bowie Inn, Inc. v. City of Bowie, 274 Md. 230, 248, 335 A.2d 679 (1975) in which the Court of Appeals noted that the General Assembly had recognized the unconstitutionality of a general law, rendered inapplicable to certain counties, and had repealed the statute in question. Similarly in Gordon v. Commissions of St. Michaels, 278 Md. 128, 133, 359 A.2d 543 (1976) the Court of Appeals held unconstitutional a statute which violated Article XI-E, § 1 by authorizing only Talbot County municipalities to exercise planning and zoning jurisdiction outside their corporate boundaries.

A statute may withstand a challenge on the grounds that it lacks uniform application under Article XI-E, § 1 if it "in its entirety applies to all municipalities throughout the State which are subject to Article XI-E.” City of Gaithersburg v. Montgomery County, 271 Md. 505, 510, 318 A.2d 509 (1974). See also Prince George’s County v. Laurel, 262 Md. 171, 188-189, 277 A.2d 262 (1971). In the present case, however, Art. 23A, § 19 (u) clearly applies to Anne Arundel County only and, therefore, only to the two municipalities in Anne Arundel County. Thus as a general law, it is unconstitutional because it violates the uniformity provision of Article XI-E, § l.

Inasmuch as our response to the primary question is dispositive of the case, we need not address the appellant’s remaining questions.

Judgment reversed; case remanded for declaration and injunction in accordance with this opinion; costs to be paid by appellees.

      . The Maryland General Assembly has seen fit not to provide for different classes of municipalities as provided in § 2.

      . Article 23, § 19 (h) already provides a procedure applicable to all municipalities for petitioning an annexation petition to referendum.

      . Since we have based our ruling on Article XI-E, § 1, we will not review the constitutional question raised with reference to § 2.


author: Liss, J.,

text:
    UNITED STATES FIRE INSURANCE COMPANY v. MARYLAND CASUALTY COMPANY
    [No. 1741,
    September Term, 1981.1

      Decided July 15, 1982.

    The cause was argued before Liss and Wilner, JJ., and George W. Bowling, Associate Judge of the Seventh Judicial Circuit, specially assigned.

      Alva P. Weaver, III, with whom were Lord, Whip, Coughlan & Green, P.A., on the brief, for appellant.

      T. Rogers Harrison, with whom were Mudd & Harrison on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

United States Fire Insurance Company (hereinafter U.S. Fire), appellant, filed in the Superior Court of Baltimore City a petition for declaratory judgment against the Maryland Casualty Company (hereinafter Maryland Casualty), appellee. The dispute between the parties involved a determination of what order of priority should payment be made between a family automobile policy issued by Maryland Casualty and a catastrophe liability policy issued by U.S. Fire relating to personal injury damages arising out of a motor vehicle accident. An undisputed agreed statement of facts was filed by the parties. After hearing, the presiding judge filed a memorandum opinion and order declaring both insurers equally liable. U.S. Fire filed this appeal and Maryland Casualty cross-appealed the judgment.

The sole issue raised for determination by this appeal is whether the U.S. Fire catastrophe liability policy is excess to the Maryland Casualty family automobile policy. The facts in the case as agreed are as follows:

Nathan Mash [Mash] was the owner of a 1974 Porsche automobile. Prior to June 10, 1977 Mash had loaned this automobile to Edward George Gutman [Gutman], On June 10, 1977 Gutman was driving the Porsche automobile eastbound on Maryland Route 133 [Old Court Road] when he crossed the center lane of the street and was in collision with an automobile owned and operated by Alice Louise Platt [Platt] which was proceeding westbound on Maryland Route 133. Platt sustained serious personal injury. Suit was instituted in the Circuit Court for Baltimore County by Platt [and her husband]. That suit was settled for the sum of Two Hundred Ninety Thousand Dollars ($290,000.00). Liberty Mutual Insurance Company [Liberty] had issued an Automobile Liability policy [No. AE 1 531 026 263-016] covering Mash and, as the undisputed primary insurer, paid $200,000.00, the total single bodily injury limit of its liability policy. Maryland Casualty Company [Maryland] had issued a Family Automobile Liability policy [No. TF 0004 96133] to Gutman as the named insured with a liability limit of $100,000.00 for bodily injury sustained by any one person. United States Fire Insurance Company [U.S. Fire] had issued a Commercial Comprehensive Catastrophe Liability policy [No. DCL 062933] to Mash as the named insured with a liability limit of $2,000,000.00 for bodily injury sustained by any one person, subject to a retained limit of $10,000.00.
Prior to the settlement of the Platt claim, U.S. Fire and Maryland Casualty entered into an Agreement dated February 29, 1980, wherein it was agreed that the parties would pursue settlement of the bodily injury claims arising out of the accident of June 10, 1977 and reserved their respective rights. U.S. Fire advanced the $90,000.00 necessary to consummate the Platt settlement.

This is a case of first impression in this jurisdiction. It involves the construction of a catastrophe liability insurance policy which, in essence, is umbrella coverage which becomes operative after, and only after, all primary insurance and/or excess insurance funds have been exhausted.

In the recent case of Olympic Insurance Company v. Employers Surplus Lines Insurance Company, 126 Cal.App.3d 593, 178 Cal. Rptr. 908 (1982), "primary” and "excess” coverages were defined as follows:

1. Primary coverage is insurance coverage whereby, under the terms of the policy, liability attaches immediately upon the happening of the occurrence that gives rise to liability. (Oil Base, Inc. v. Transport Indem. Co. (1956) 143 Cal.App.2d 453, 467, 299 P.2d 952). Primary insurers generally have the primary duty of defense.
2. "Excess” or secondary coverage is coverage whereby, under the terms of the policy, liability attaches only after a predetermined amount of primary coverage has been exhausted.2 [Footnote omitted]. It is not uncommon to have several layers of secondary insurance. Secondary insurance is sometimes referred to as "umbrella” insurance. When secondary insurance is written to be excess to identified policies, it is said to be "specific excess.” [126 Cal. App.3d at 597-598],

It is important that we consider the contents of the insurance contracts involved in this appeal. We again note that Liberty Mutual was the undisputed primary insurer and that it paid $200,000 representing the .single bodily injury limit of its liability policy.

The pertinent applicable provisions of the Maryland Casualty policy are as follows:

Coverage A Bodily Injury/Liability ... To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:
A. Bodily Injury . .. arising out of the ownership, maintenance or use of the automobile or any non-owned automobile . ..
Persons Insured:
The following are insureds under Part I:
(B) With respect to a non-owned automobile,
(1) The named insured ...
Other Insurance:
If the insured has other insurance against the loss covered by Part I of this policy, the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declaration bears to the total applicable limit of liability of all valid and collectible insurance against such loss; provided, however, the insurance with respect to a temporary substitute automobile or non-owned automobile shall be excess insurance over any other valid and collectible insurance.

The applicable provisions of the U.S. Fire policy are as follows:

I. COVERAGE — The Company agrees to indemnify the insured for ultimate net loss in excess of the retained limit hereinafter stated, which the insured may sustain by reason of the liability imposed upon the insured by law, or assumed by the insured under contract:
(a) Personal Injury Liability. For damages, including damages for care and loss of services, because of personal injury, including death at any time resulting therefrom, sustained by any person or persons:
III. DEFINITION OF "NAMED INSURED” AND INSURED — "Named insured”, wherever used, includes any subsidiary company (including subsidiaries thereof) of the named insured and any other company coming under the named insured’s control of which is assumed active management.
(d) Any person while using an automobile ... owned by ... the named insured .. . and any person provided that the use of the automobile ... is by the named insured or with the named insured’s permission.
V. RETAINED LIMIT — LIMIT OF LIABILITY
— With respect to Coverage 1(a), 1(b), 1(c) or any combination thereof, the Company’s liability shall be only for the ultimate net loss in excess of the insured’s retained limit defined as the greater of:
(a) the total of the applicable limits of the underlying policies listed in Schedule A hereof, and the applicable limits of the other underlying insurance collectible by the insured;
In the event of the reduction or exhaustion of the aggregate limits of liability of the underlying policies listed in Schedule A by reason of losses paid thereunder, this policy, subject to the above limitations, (1) in the event of reduction, shall pay the excess of the reduced underlying limits; or (2) in the event of exhaustion, shall continue in force as underlying insurance.
"Conditions”
J. Other insurance. If other collectible insurance with any other insurer is available to the insured covering a loss also covered hereunder (except insurance purchased to apply in excess of the sum of the retained limit and the limit of liability hereunder) the insurance hereunder shall be in excess of and not contribute with, such other insurance. If the insured carries other insurance with the company covering a loss also covered by this policy (other than underlying insurance of which the insurance afforded by this policy is in excess) the insured must elect which policy shall apply and the company shall be liable under the policy so elected and shall not be liable under any other policy.
K. Underlying Insurance. If underlying insurance is exhausted by any occurrence, the company shall be obligated to assume charge of the settlement or defense of any claim or proceeding against the insured resulting from the same occurrence, but only where this policy applies immediately in excess of such underlying insuranee, without the intervention of excess insurance of other carrier.

The almost universal rule adopted by courts confronted with conflicting policy language is to analyze the language of the policies in the light of the circumstances of each contracting party to determine the intention of each contract within the design of a consistent overall insuring scheme. See Allstate Insurance Company v. Employers Liability Assurance Corporation, 445 F.2d 1278 (5th Cir. 1971).

In Maryland, when faced with conflicting policies, the Court of Appeals has attempted to resolve the problem of double coverage by reconciling the conflicting clauses. See Consolidated Mutual Insurance Company v. Bankers Insurance Company of Pennsylvania, 244 Md. 392, 223 A.2d 594 (1966); Zurich Insurance Company v. Continental Casualty Company, 239 Md. 421, 212 A.2d 96 (1964); Citizens Casualty Company of New York v. Allied Mutual Insurance Company, 217 Md. 494, 144 A.2d 73 (1958); Celina Mutual Casualty Company of Ohio v. Citizens Casualty Company of New York, 194 Md. 236, 71 A.2d 20 (1949).

In attempting to ascertain the contractual intent of the parties, the Court must not only consider the language employed by the parties, but also the character of the contract, its object and purpose as well as the facts and circumstances surrounding the parties at the time of the execution. State Farm Fire & Casualty Company v. Quirt, 28 Md. App. 603, 346 A.2d 497 (1975).

Allstate Insurance Company v. Employers Liability Assurance Company, supra, is the leading case on the subject of priorities among insurers where umbrella or catastrophe coverage is involved. In Allstate, the driver of the vehicle involved in the accident was insured individually by Allstate. Its policy provided that its coverage would be excess insurance over any other collectible insurance as to leased vehicles. The owner of the vehicle, a rental agency, was covered by both a policy of primary insurance issued by Lumbermens, as well as an umbrella policy issued by Employers. In addition, there was a policy issued to the lessee of the vehicle, who was the employer of the driver, which provided "excess” coverage to an insured when a hired vehicle was involved. No dispute arose as to the obligation of the primary insurer for the payment of the first $100,000 of the settlement reached in the case. The controversy was the determination of the relative liabilities of the three "excess” insurers. The excess coverages provided under the Allstate and Lumbermens policies were excess only because the accident involved a non-owned or leased vehicle; otherwise, the policies were intended to provide basic primary coverage. Employers’ policy required the insured to maintain certain other policies of primary insurance termed underlying insurance, and the other insurance clause of Employers’ policy expressly provided that its coverage was excess to any other valid and collectible insurance.

The 5th Circuit Court of Appeals rejected Allstate’s arguments that the various excess coverages were all on an equal footing requiring a pro rata sharing by the three insurers. The Court concluded that:

. . . Employers policy is unique within the group of insurers here involved. It alone assumed only residual loss coverage in every event. The other insurers, Lumbermens, Allstate and USF & G, issued policies designed to provide a named insured with primary coverage, although, insofar as is pertinent to the covered occurrence here involved, they promised their insured only secondary or excess coverage. The Employers policy, on the other hand, in its basic insuring clause, provided indemnity solely in terms of the insured’s share of "ultimate net loss”. The policy defined that loss as including the total sum which the insured, or any company as his insurer, or both, became legally obligated to pay on account of an insured accident. Thus, Employers liability was created subordinate to every other type of insurance afforded to its insured. [445 F.2d at 1283],

After consideration of all of the terms of the insurance contracts here involved, the Court in the Allstate case decided that the coverage afforded under Employers’ policy was a contingent excess clause and not an escape clause and the basic excess coverage of Lumbermens, Allstate and USF & G were first required to be exhausted before the umbrella carrier could be obligated to contribute to the loss. Id., at 1284. That case has since been followed by those courts which had before them conflicts involving basic "excess” coverages and "umbrella” type coverages. See Berkeley v. Fireman’s Fund Insurance Company, 407 F. Supp. 960 (W.D.Wash. 1975); Aetna Insurance Company v. State Automobile Mutual Insurance Company, 368 F. Supp. 1278 (W.D. Ky. 1973); Prudential Property and Casualty Insurance Company v. New Hampshire Insurance Company, 164 N.J. Super. 184, 395 A.2d 923 (1978); Liberty Mutual Insurance Company v. United States Fire Insurance Company, 590 S.W.2d 783 (Tex. 1979); Lumbermens Mutual Casualty Company v. Allstate Insurance Company, 51 N.Y.2d 651, 417 N.E.2d 66 (1980); Arizona Joint Underwriting Plan v. Glacier General Assurance Company, 129 Ariz. 351, 631 P.2d 133 (1981).

In Lumbermens Mutual Casualty Company v. Allstate Insurance Company, supra, the Court of Appeals of New York, in a case of first impression in that State, was asked to resolve a conflict arising out of four insurance contracts providing coverage for the same loss. The vehicle involved in the accident was registered to a corporation, which was insured under a policy of primary insurance issued by Allstate, as well as a catastrophe policy issued by Lumbermens. In addition, the driver was covered under a policy issued by Allstate to his mother which afforded him excess coverage when driving a non-owned automobile. The driver was also insured under an executive policy issued to his father by Allstate, which by its terms afforded "umbrella” coverage equal to the "net loss in excess of insured’s retained limit.” Although it was argued that there was a basic conflict between the umbrella policies as well as the excess coverage provided under the mother’s Allstate policy, the Court found a significant distinction in the language of the two umbrella policies and concluded there were four layers of coverage. The Court rejected Allstate’s argument that all of the policies provided excess insurance on the same level and concluded that upon the exhaustion of the primary insurance, Allstate, the mother’s insurer, would next be required to contribute. Upon exhaustion of the mother’s policy limits, Allstate would be required to contribute up to the limits of the executive umbrella policy and then the catastrophe policy of Lumbermens would be summoned into effect.

The appellee, as well as the trial judge, relied primarily on Ryder Truck Rental, Inc. v. Shapiro and Whitehouse, 259 Md. 354, 269 A.2d 826 (1970), to support the trial court’s conclusion in this case. We conclude that Ryder is distinguishable on the facts from the case here under consideration. In Ryder, the controversy involved two general liability policies which contained identical nonowner excess clauses. The unusual facts presented by Ryder were recognized by the Court of Appeals when it said they were "extraordinary in that they are apt never to recur in quite the same configuration.” 259 Md. at 355. The Court held that the excess clauses were identical and therefore did not require the resolution of conflicting clauses; that each therefore was fully operative and as there was nothing to reconcile each would share equally in the loss.

The case which is most similar on the facts to the controversy here involved is Liberty Mutual Insurance Company v. United States Fire Insurance Company, supra. In that case a declaratory judgment was sought to determine the amount of the respective liabilities of two insurance companies for losses incurred as the result of an automobile accident. Each had an acknowledged obligation to participate in the final settlement, the issue being in what order and what proportion. The accident involved the settlement of a claim for personal injuries by a passenger in a jeep driven by one person and owned by another. Settlement was in the amount of $250,000. Kennedy was insured by American General Insurance Company which had issued a policy to him with limits of $100,000 per person per accident. Taub was insured by American General Insurance Company with a family automobile policy with primary limits of $100,000; and was also insured by U.S. Fire with a professional comprehensive personal catastrophy liability policy (an umbrella policy) with limits of $1,000,000 in excess of the insured’s "retained limit.”

Settlement was paid in the following order: American General paid its policy limits for a one person accident of $100,000; Liberty Mutual paid its policy limits of $100,000; U.S. Fire paid the remaining $50,000. Liberty Mutual and U.S. Fire, however, agreed to seek a judicial determination of coverage and order of coverage as between the two of them.

It is not necessary for us to recite the clauses of the policies of insurance issued by the contesting parties. Suffice it to say Liberty Mutual’s policy is quite similar to Maryland Casualty’s provisions in this case and U.S. Fire’s umbrella clause is identical to that in the case here considered. Liberty Mutual on appeal contended that the "other insurance” clauses of the two policies were mutually repugnant. If this was correct, argued Liberty Mutual, then its policy should be construed to provide a concurrent second layer of insurance with appellee’s policy in a pro rata amount based upon the respective maximum policy limits. The Texas Court rejected this argument where it stated:

It is true that each of the policies has an "other insurance” clause that apparently limits coverage in the fortuitous circumstance of the presence of other validly subsisting coverage, but an examination of the purpose of the policies dictates the resolution of this dispute. Liberty Mutual’s policy generally affords primary coverage; its coverage becomes excess only because of the presence of a non-.owned vehicle. United States Fire’s policy remains excess in all events. Thus it is apparent that the intent of all parties to the policies is for United States Fire’s policy to remain an umbrella policy, and Liberty Mutual’s coverage to underlie it. Allstate Ins. Co. v. Employers Liability Assur. Corp., 445 F.2d 1278 (5th Cir. 1971). Had Liberty Mutual issued its policy as it did, and United States Fire had issued its policy to Kennedy instead of to Taub, there would be no question that Liberty would be liable to the full extent of its policy limits. [590 S.W.2d at 785].

It seems clear to us that the overwhelming weight of authority is that where purported conflicts between a policy providing essentially primary coverage is made excess by the involvement of a non-owned vehicle and a policy providing umbrella or catastrophe policy are in conflict, the courts have held that the umbrella policy need contribute only after the primary and ordinary excess coverages as "other collectible insurance” in the meaning of the other insurance clause of the umbrella policy are exhausted.

We conclude that the appellee is obligated to reimburse U.S. Fire in the amount of $90,000 advanced by U.S. Fire pursuánt to the agreement dated February 29, 1980.

Judgment reversed; case remanded for a declaration that appellee is required to reimburse U.S. Fire in the amount of $90,000.

Costs to be paid by appellee.

      . Application for writ of error to the Court of Civil Appeals for the 14th Supreme Judicial District was filed by Liberty Mutual and, after consideration, the Supreme Court of Texas found no error requiring reversal of judgment of the Court of Civil Appeals and refused the application on the 6th day of February, 1980.


author: Moylan, J.,

text:
    GINGER ROUNTREE v. LERNER DEVELOPMENT COMPANY et al.
    [No. 1552,
    September Term, 1981.1

      Decided July 20, 1982.

    The cause was argued before Moylan and Moore, JJ., and Morris Turk, Associate Judge of the Fifth Judicial Circuit, specially assigned.

      Ronald M. Miller for appellant.

      Alan R. Siciliano for appellees.
   Moylan, J.,

delivered the opinion of the Court.

On January 15, 1977, the appellant, Ginger Ruth Rountree, slipped and fell on a step covered with ice leading from her apartment in the University Square Garden Apartments in Greenbelt, Maryland. She sustained a fracture of her left shoulder and extensive damage to her right knee cartilage. As a result, she brought suit against the Lerner Corporation and the Lerner Development Company, the owner and operator, respectively, of the University Square Garden Apartments. The case was tried before a jury in the Circuit Court for Prince George’s County, with Judge Samuel Meloy presiding. At the end of the appellant’s case, Judge Meloy granted the defendant/appellees’ motion for a directed verdict, ruling as a matter of law that the appellant had assumed the risk of her fall. On this appeal from the judgment entered against her, the appellant contends that the trial court erred in directing a verdict against her.

In assessing the correctness of the court’s ruling, we proceed to examine the evidence in the light most favorable to the appellant. The appellant and her sister rented an apartment, described at 122 Westway Apartment Number 103, at the University Square Garden Apartments in June, 1975. The apartment complex is a large one with at least forty separate apartment buildings. It was owned by the appellee Lerner Corporation and managed by the appellee Lerner Development Company. Lerner Development Company was responsible for the exterior maintenance and upkeep of the apartments, including removal of ice and snow from the walkways and steps leading to the apartments.

During January, 1977, the metropolitan Washington area experienced heavy precipitation, including snow and ice. The day before the accident, January 14,1977, the appellant left her place of employment at the Department of Justice around 6:00 p.m. and arrived at her apartment around 6:30 p.m. She thereafter went to Waldorf, Maryland, to a concert. There was a drizzling rain. She left the concert at approximately 10:00 p.m. and returned to her home in Greenbelt at approximately 12:30 a.m. The weather had become more severe. There was a freezing rain. Conditions on the street were glassy and slick. She parked her car at the Jewish Community Center parking lot, which she testified was the only safe and available parking area that evening, and walked to her apartment building. The steps on which she fell the next day were wet but not covered with ice, and she had no trouble going down the steps leading from Westway to her apartment building.

On Saturday morning, the appellant awoke at 5:30 or 6:00 a.m. She was required to work overtime that day to prepare the Congressional budget charts. She went to her balcony, which faced the 124-126 Westway buildings, and noticed an accumulation of ice and snow. From her apartment, however, she could not see the steps on which she ultimately fell but only the buildings behind her apartment and the lower sidewalk leading to the rear parking lot. Although she normally started work at 9:00 a.m., because of the weather conditions she decided to leave her apartment late so that the streets and pathways could be cleared.

The appellant left her apartment building around 9:00 a.m. Seeing the snow and ice on the sidewalk, she proceeded with great caution. The sidewalk — between her building and the four steps leading to a sidewalk directly adjacent to Westway — was approximately 160 feet long. She walked alongside the sidewalk, where there was caked snow. When she reached the steps, she got back onto the sidewalk to go across a small drainage culvert and up the steps. She had to use the steps because there was a steep bank next to the steps on both sides which was impassable. She testified that when she reached the steps, "I knew it was slick and icy, so I would have to be very careful because these steps — you take one or two steps per step and they are downhill; they slant back to you, so that it was going to be extremely difficult for me to get up these steps because of the way they slant.” Additionally, there was no handrail or grip to aid her in ascending the stairs. The steps were wide and elongated. The appellant was able to traverse the first two steps. As she attempted to step from the third step onto the top step, however, her left foot slipped out from under her while she was raising her right foot. She fell face forward, spread-eagle fashion. She was unable to get back on her feet for some time and kept sliding backwards on the downward-slanted icy steps. When she finally managed to get to the sidewalk, she looked down to her right to the next group of apartments and saw men clearing the sidewalks.

Taking that version of the facts most favorable to the appellant, we have no difficulty in concluding that there was at least a jury issue as to whether she was free of having assumed the risk. Both the appellant and the appellee seem obsessed with the question of whether the appellant did or did not have knowledge of the icy and dangerous condition of the walkways and steps. That is simply one of two limitations on the defense of assumption of risk, however. As Professor Prosser points out in his Law of Torts, (4th ed. 1971), at p. 447:

"The defense of assumption of risk is in fact quite narrowly confined and restricted by two requirements: first, that the plaintiff must know and understand the risk he is incurring, and second, that his choice to incur it must be entirely free and voluntary.”

With respect to that second restriction on the availability of the defense, Prosser explains, at p. 450:

"The second important limitation upon the defense of assumption of risk is that the plaintiff is not barred from recovery unless his choice is a free and voluntary one. There must first of all, of course, be some manifestation of consent to relieve the defendant of the obligation of reasonable conduct. It is not every deliberate encountering of a known danger which is reasonably to be interpreted as evidence of such consent. The jaywalker who dashes into the street in the middle of the block, in the path of a stream of cars driven in excess of the speed limit, certainly does not manifest consent that they shall use no care and run him down. On the contrary, he is insisting that they shall take immediate precautions for his safety; and while this is certainly contributory negligence, it is not assumption of risk.”

On the facts of this case, there may have been clear and decisive evidence of a "deliberate encountering of a known danger” but that fact, even if assumed to be true, is not dispositive of the issue of assumption of risk. In this case, the tenant had a right to egress from her apartment. She had a right to assume that the landlord would take all appropriate steps to make safe egress possible. Whether the landlord did or did not is another issue and not the one upon which this case was decided. There was evidence that the appellant delayed her departure for work so that both the sun and the workmen would have additional time to ameliorate the icy conditions. There was evidence that there was no alternative route of egress from the appellant’s apartment. Under the circumstances, the further exposition of Prosser is highly pertinent at p. 451:

"Even where the plaintiff does not protest, the risk is not assumed where the conduct of the defendant has left him no reasonable alternative. Where the defendant puts him to a choice of evils, there is a species of duress, which destroys all idea of freedom of election. Thus a shipper does not assume the risk of a defective car supplied him by a carrier where the only alternative to shipment in it is to let his cabbages rot in the field; and a tenant does not assume the risk of the landlord’s negligence in maintaining a common passageway when it is the only exit to the street. In general, the plaintiff is not required to surrender a valuable legal right, such as the use of his own property as he sees fit, merely because the defendant’s conduct has threatened him with harm if the right is exercised.... By placing him in the dilemma, the defendant has deprived him of his freedom of choice, and so cannot be heard to say that he has voluntarily assumed the risk.” (Emphasis supplied)

If there had been evidence in this case that there was a reasonable and safe alternative route of egress open to the appellant and that she deliberately chose the shorter but more dangerous route, that might well establish as a matter of law that she was guilty of having assumed the risk. She would have run afoul of Professor Prosser’s admonition, at pp. 451-452:

"... [W]here there is a reasonably safe alternative open, the plaintiffs choice of the dangerous way is a free one, and may amount to both contributory negligence and assumption of risk.”

In this case, however, there was no evidence of any "reasonably safe alternative open” and there was, at the very least, a jury issue with respect to the "voluntary assumption” restriction on the defense of assumption of risk.

Judgment reversed; case remanded for further proceedings; costs to be paid by appellees.


author: Thompson, J.,

text:
    KENNETH SUGGS v. STATE OF MARYLAND
    [No. 1444,
    September Term, 1981.1

      Decided August 27, 1982.

    The cause was submitted on briefs to Gilbert, C. J., and Thompson, J., and W. Albert Menchine, Associate Judge of the Court of Special Appeals (retired), specially assigned.
    Submitted by Alan H. Murrell, Public Defender, and Michael R. Malloy, Assistant Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General,

      Stephen Rosenbaum, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and John Hassett, Assistant State’s Attorney for Baltimore City for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Kenneth Suggs, appellant, was charged with four violations of the Maryland Home Improvement Law. In the first case (Nos. 48100908 & 09) appellant was tried by a jury in the Criminal Court of Baltimore, Judge J. Harold Grady presiding, and was found guilty. The remaining three cases (Nos. 48100901; 48100910 & 11; 48107726 & 27) were tried without a jury on June 23,1981 and appellant was convicted on each charge. On August 20,1981 appellant was sentenced to a total of two years.

He raises here the following issues:

1. With regard to cases Nos. 48100901; 48100910-11; and 48107726-27, did the trial court err by allowing appellant to waive his right to a jury trial without determining, on the record, that appellant had a full understanding of the nature of that right, as required by Rule 735d?
2. With regard to case No. 48100908-09, did the Assistant State’s Attorney make prejudicial improper comments during opening argument to the jury?
3. Was the evidence insufficient to sustain Appellant’s convictions?

The facts will be introduced as they relate to the specific issues.

I. Waiver of Jury Trial

Appellant was advised on the record by defense counsel of his right to a jury trial as follows:

"MR. SMITH: And you must realize that you waive your right to a jury trial, and you waive your rights to confront the witnesses and you waive your rights to cross examination of the witnesses as a result of getting into this type of an arrangement; understand? And you understand what your rights are to a jury trial?
THE DEFENDANT: Yes.
MR. SMITH: And that twelve people selected from the Voter Registration List of Baltimore City would sit in judgment of you and must find you guilty beyond a reasonable doubt and to a moral certainty in order to convict you of the charges. You realize that? And do you give up that right?
THE DEFENDANT: I do.”

Appellant asserts that the trial judge erred in allowing him to waive his right to a jury trial without his having been informed that a jury’s verdict must be unanimous. He maintains that the instructions given by defense counsel were not in compliance with the mandates set forth in former Md. Rule 735 d (1977, 1981 Cum. Supp.). The Court of Appeals discussed the requirements of Section 735 d in Countess v. State, 286 Md. 444, 455, 408 A.2d 1302 (1979) stating:

"What the Rule contemplates is that the defendant have a basic understanding of the nature of a jury trial. We think that this understanding is generally satisfied when the defendant entitled to a jury trial knows that he has the right to be tried by a jury of 12 persons or by the court without a jury; that whether trial is by a jury or by the court, his guilt must be found to be beyond a reasonable doubt; that in a jury trial all 12 jurors must agree that he is so guilty but in a court trial the judge may so find.”

As of January 1, 1982, Md. Rule 735 was modified so that the Countess litany was no longer required. The new rule, now found in § 735 b provides:

"A defendant may waive the right to a trial by jury at any time before the commencement of trial. The court may not accept the wáiver until it determines, after an examination of the defendant on the record in open court by the court, by the State’s Attorney, by the attorney for the defendant, or by any combination thereof, that the defendant knowingly and voluntarily waived a jury trial.”

Appellant urges that the former rule is controlling because his trial was held before the effective date of the new rule. The effective date of a new rule or statute is not controlling on whether it should be applied to pending cases. "It is an entirely neutral circumstance.” T & R Joint Ven. v. Office, Plan. & Zon., 47 Md. App. 395, 408, n.7, 424 A.2d 384 (1980). Generally, an appellate court is bound to decide a case according to existing laws, even though a judgment rightful when rendered by the court below should be reversed as a consequence. McClain v. State, 288 Md. 456, 419 A.2d 369 (1980); State v. Johnson, 285 Md. 339, 402 A.2d 876 (1979); Yorkdale v. Powell, 237 Md. 121, 205 A.2d 269 (1964); Teays v. Supreme Concrete Block, 51 Md. App. 166, 441 A.2d 1109 (1982); Firstman v. Atlantic Constr. & Supply, 28 Md. App. 285, 345 A.2d 118 (1975). The rationale espoused for this rule of retrospective application has been stated to be that, provided no "vested right” or contrary legislative intent is disturbed, it would be anomalous for a court to apply obsolete standards and issue a mandate that is inconsistent with current law. Lucado v. State, 40 Md. App. 25, 31, 389 A.2d 398 (1978); see, T & R Joint Ven. v. Office, Plan. & Zon., supra. There being no indication in the rule itself that it was intended to only be applied prospectively, we will consider the waiver issue in light of the January 1, 1982 modification. The changes evident in Md. Rule 735 b reveal an intent to relax the requirement of the strict litany found in Countess, while, at the same time, assuring the defendant’s right to a knowing and voluntary waiver. In the present case, the defense counsel advised the appellant that "twelve people .. . would sit in judgment of you and must find you guilty beyond a reasonable doubt and to a moral certainty in order to convict you of the charges.” While it may be a close question whether the above colloquy satisfies the tenets of Md. Rule 735 b, it appears to us that the above instruction sufficiently conveyed the requirement of jury unanimity to the appellant. See, Mayes v. State, 50 Md. App. 628, 440 A.2d 1093 (1982) (where this Court found "those twelve jurors would have to decide beyond a reasonable doubt” sufficient to convey to the defendant that the verdict must be unanimous). We see no error.

II. Prejudicial Remarks in Opening Statement

Appellant asserts that conviction Nos. 48100908 & 09 should be reversed in view of the prejudicial remarks of the state during opening argument. The Assistant State’s Attorney had proffered to the jury the following statements:

"So, the State in this case has charged Mr. Suggs with two things. Number one, Mr. Suggs, specifically with Miss France’s house, started doing home improvement work. He doesn’t have a license.
Number two, after he started to do the work for a couple of days, he abandoned the job.
Now, the specifics of the case, and the testimony you are going to hear, and the contracts that will be entered into evidence, will show that Mr. Suggs is a rather, shall I say, smooth talking rip-off artist.
Mr. Smith: Objection.
The Court: Overruled. Remember, jury, the counsel have some latitude in explaining the case to you. You wait for the evidence before any of this is established. Proceed.
Mr. Hassett: Thank you, Your Honor. I will state for the record that what I tell you is not evidence. The only evidence you have to consider is what the people on the stand tell you and the actual pieces of paper that are entered into evidence.” (Emphasis added).

In Wilhelm v. State, 272 Md. 404, 326 A.2d 707 (1974), the Court of Appeals discussed the functions and limitations of opening statements, asserting at 411-12:

"The primary purpose or office of an opening statement in a criminal prosecution is to apprise with reasonable succinctness the trier of facts of the questions involved and what the State or the defense expects to prove so as to prepare the trier of facts for the evidence to be adduced. While the prosecutor should be allowed a reasonable latitude in his opening statement he should be confined to statements based on facts that can be proved and his opening statement should not include reference to facts which are plainly inadmissible and which he cannot or will not be permitted to prove, or which he in good faith does not expect to prove. An opening statement by counsel is not evidence and generally has no binding force or effect. To secure a reversal based on an opening statement the accused is usually required to establish bad faith on the part of the prosecutor in the statement of what the prosecutor expects to prove or establish substantial prejudice resulting therefrom.”

The appellant has not asserted bad faith on the part of the prosecutor nor has he demonstrated substantial prejudice. Further, the trial court cautioned the jury that counsel’s opening statements were not evidence. We see no reversible error although such a remark would be more appropriate in closing argument than in opening statements.

III. Sufficiency of the Evidence

Appellant asserts that the evidence was insufficient to sustain his convictions.

The appellant entered into three home improvement contracts in August 1980 and one in September 1980. At the time of these contracts he did not have a license as required under Md. Ann. Code Art. 56, § 255 a (1957,1979 Repl. Vol.). The contention that the requirements of the statute were met by procuring a construction license under Art. 56, § 180 (1979, 1981 Cum. Supp.) is not valid for two reasons: first, he did not procure the construction license until December 4, 1980, after having entered into the contracts; and second, a contractor’s license is not the same as a Home Improvement License, the former being a revenue producing measure, while the latter is a regulatory measure. The evidence was sufficient to support appellant’s convictions for home improvement license violations.

Finally, appellant asserts that the evidence was insufficient to sustain one of his convictions for abandoning a home improvement contract. Once again, the contention is unsupported by the record. The victim, Mrs. Myrtle France, testified that, despite being asked to do so, appellant failed to return to her property to finish the work contracted for after having received full payment. This testimony is sufficient to support the appellant’s conviction on this charge. Bryant v. State, 49 Md. App. 272, 431 A.2d 714 (1981).

Judgments affírmed.

Appellant to pay the costs.

      . Former Md. Rule 735 d provided:
      "If the defendant elects to be tried by the court, the trial of the case on its merits before the court may not proceed until the court determines, after inquiry of the defendant on the record, that the defendant has made his election for a court trial with full knowledge of his right to a jury trial and that he has knowingly and voluntarily waived the right. If the court determines otherwise, it shall give the defendant another election pursuant to this Rule.”

      . The State and the appellant each cited diverse cases for their respective positions as to the retroactivity or prospectivity of the rule. The law is in a state of flux with respect to the retroactive application of new law to pending cases. This lack of consistency makes it difficult to predict the extent to which a new or modified law will affect various individuals until a ruling is actually rendered bv the court. This problem was noted in T & R Joint Ven. v. Office, Plan. & Zon., supra, 47 Md. App. at 405, n. 5 where Judge Wilner commented: "There have been literally dozens of cases in which the Court has been faced with the question of whether to apply an intervening change in the law to a pending case. Some of the decisions are not easy to reconcile, and thus the diligent lawyer or judge can easily find some authority for both sides of the proposition.” See also, United States v. Johnson, 50 U.S.L.W. 4742 (U.S. June 21, 1982).