State Ethics Commission v. Evans

¶1Dissenting Opinion by

¶2Were it necessary in this case to resolve the arguments directed to retroactivity,5 I would agree with the Majority that, on this record, the Legislature failed to express sufficiently and clearly an intent for the statutory amendments in question to have retrospective effect. Maj. op. at 384. I would agree also that the outcome in this case should not turn on the tense of the use in § 15-405(e)(l)(ii) of the verb “has been convicted.” Maj. op. at 385. In my view, however, neither of these matters need be resolved here inasmuch as the application to Evans’ lobbyist registration of § 15-405(e) by the State Ethics Commission was not retroactive in effect. The Commission’s action neither impaired vested rights nor changed the legal consequences of completed transactions, as those criteria are understood in the accepted analysis of what constitutes the retrospective application of an enactment. Thus, neither the common law presumption against the retrospective application of legislation nor the question of legislative intent regarding retrospectivity are material to deciding this case. The application to Evans’ situation of § 15-405(e) was entirely prospective and lawful. Accordingly, I would reverse the judgment of the Circuit Court for Anne Arundel County and remand this case with direction to affirm the State *389Ethics Commission’s decision to revoke Evans’ lobbyist registration.

¶3Our cases considering whether particular statutes lawfully may be applied retrospectively tend to focus on the search for clues whether the Legislature, having failed to include clear direction to that end in the enactment, nevertheless evinced an intent for the statute in question to be applicable retroactively. See, e.g., Mason v. State, 309 Md. 215, 217-18, 221-22, 522 A.2d 1344, 1346-47 (1987)(focusing on whether an amendment limiting a convict to three habeas petitions was intended to apply to a person who already had filed two habeas petitions before the new statute’s effective date); Roth v. Dimensions Health Corp., 332 Md. 627, 629-30, 632 A.2d 1170, 1171 (1998)(concluding that presumption against retroactive application of a statute does not apply where retroactive application of the statute would not impair previously vested rights); Rigger v. Baltimore County, 269 Md. 306, 311-12, 305 A.2d 128, 131-32 (1973)(holding that a statute prohibiting exculpatory clauses in residential lease agreements could not be applied to a pre-effective-date lease agreement, absent specific legislative intent, because it would interfere with vested contractual rights and perhaps raise serious constitutional questions); Gutman v. Safe Deposit & Trust Co. of Baltimore, 198 Md. 39, 41-42, 44, 81 A.2d 207, 208, 209 (1951)(holding that a statute abolishing the distinction between adopted and biological children could not apply to a pre-effective-date testamentary will, absent specific legislative intent, because to do so would interfere with vested rights under the will). Our cases, for the most part, however, have not considered in any depth the definition of, or developed an analytical paradigm for determining in the first instance, what constitutes retroactive application of a statute.6 Accordingly, I look elsewhere.

¶4*390The U.S. Supreme Court dealt fully with this question in Landgraf v. USI Film, Products, 511 U.S. 244, 268-83, 114 S.Ct. 1483, 1498-508, 128 L.Ed.2d 229 (1994). While the Court eschewed a rigidly mechanical standard, it generally defined as a retrospective application of a statute one that “would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” Landgraf, 511 U.S. at 280, 114 S.Ct. at 1506. The Court emphasized that “a statute does not operate ‘retrospectively’ merely because it is applied in a case arising from conduct antedating the statute’s enactment.” Landgraf, 511 U.S. at 269, 114 S.Ct. at 1499. Rather, a statute is deemed to have retroactive effect if it purports to change the legal consequences of events completed before its enactment, with the analysis to be guided by “fair notice, reasonable reliance, and settled expectations.” Landgraf, 511 U.S. at 270, 114 S.Ct. at 1499. The Court urged caution in this analysis, stating: “[e]ven uricontroversially prospective statutes may unsettle expectations and impose burdens on past conduct: a new property tax or zoning regulation may upset the reasonable expectations that prompted those affected to acquire property; a new law banning gambling harms the person who had begun to construct a casino before the law’s enactment or spent his life learning to count cards.” Landgraf, 511 U.S. at 270 n. 24, 114 S.Ct at 1499 n. 24.

¶5Landgrafdealt with the asserted imposition of civil tort liability (in the form of compensatory and punitive damages under the Civil Rights Act of 1991) for allegedly discriminatory conduct occurring prior to the effective date of the statute. Landgraf, 511 U.S. at 247, 114 S.Ct. at 1488. The plaintiff-*391employee’s immediate supervisor failed to respond to her complaints of sexual harassment by a co-worker. Landgraf, 511 U.S. at 248, 114 S.Ct. at 1488. The plaintiff-employee allegedly suffered mental anguish because the situation was not corrected in a timely manner. See Landgraf, 511 U.S. at 247-18, 114 S.Ct. at 1488. While the defendant-employer would not have been liable under the previous statutory scheme, the Court assumed, arguendo, that application of the new statute to the past discrimination would support a finding of liability against the defendant-employer, along with a possible award of compensatory and punitive damages. Landgraf, 511 U.S. at 250, 114 S.Ct. at 1489. To hold the defendant-employer liable for past conduct under these circumstances would impair the employer’s previously vested legal right not to be forced to pay compensatory and punitive damages for acts or omissions which were not illegal at the time they occurred.7Landgraf, 511 U.S. at 280-82, 114 S.Ct. at 1505-06. The Court found that to hold the defendant liable would have increased the employer’s liability for past conduct. It observed that an award of compensatory damages is “quintessentially backward looking,” and that introduction of a “right to compensatory damages” would “have an impact on private parties’ planning.” Id.In other words, had the cause of action existed at the time of the conduct, the employer might *392have acted to terminate the harassment as a means to avoid civil liability. As such, the Court found that the proposed liability imposed new duties with respect to completed transactions. Landgraf, 511 U.S. at 280, 114 S.Ct. at 1489. To hold an employer civilly liable for conduct not actionable at the time that it occurred would attach a “new legal burden” to the original conduct, and would impose a “new disability” with respect to completed transactions. Landgraf, 511 U.S. at 283, 114 S.Ct. at 1506-07.

¶6Although Landgrafdressed its reasoning in the finery of federal constitutional considerations, and the present case has not been so argued, the Landgrafmethodology for determining what constitutes retrospective application of a statute is consistent with our cases. Several Maryland cases discussing the presumption against retroactivity nonetheless find the statutes in question to have retrospective sweep. Reading those cases in light of Landgraf, it is apparent that: 1) the proposed statutory application in question in each case would have been found to be retroactive under the Landgrafanalysis also; and, in contrast, 2) § 15-405(e) is prospective in its application to Evans, which result would not conflict with the results or reasoning in those cases.

¶7The cases discussing retroactivity relied on by the parties and the Majority involve, in the main, statutes that either interfered with vested rights or established new duties and legal burdens with respect to completed transactions. In Amecom, Roth, Riverdale Heights, Rigger, and Gutman, the relevant factual occurrences or transactions precipitating the application of the respective statutes were completed: the parties needed do nothing more after the effective date of the statute for the statute assertedly to apply to them. In Amecom, the retaliatory discharge occurred before the statute was enacted. 278 Md. at 122, 360 A.2d at 3. In Roth, the medical malpractice occurred, and the plaintiff missed the limitations period to file his claim, before the statute was passed. 332 Md. at 628-30, 632 A.2d at 1170-71. The tort in Riverdale Heights was committed before the statute granting tort immunity became law. 308 Md. at 557-58, 520 A.2d 1319-20.

¶8*393In situations where the relevant conduct precipitating the application of the statute arguably was incomplete before the effective date of the statute, the statute was deemed to have retroactive impact because it would interfere with previously vested rights. In Mason, the statute limited the defendant’s right to future habeas petitions by counting his previous petitions toward the new limit. 309 Md. at 220-21, 522 A.2d at 1346. In Rigger, application of a statute banning landlord exculpatory clauses in residential lease agreements was considered to have retroactive effect although the tenant suffered the relevant personal injury after the effective date of the statute. 269 Md. at 311, 305 A.2d at 131-32. We concluded there that the proposed statutory application necessarily would be retroactive because it would interfere with vested contractual rights and perhaps “raise serious constitutional questions.” 269 Md. at 311, 305 A.2d at 131. We similarly resolved in Gutmanthat a 1947 statute abolishing the distinction between adopted and biological children would have retroactive effect if applied to cure an otherwise void residuary bequest under a will probated in 1923. 198 Md. at 41-42, 81 A.2d at 207-08. As in Rigger, we concluded in Gutmanthat such an application necessarily would be retroactive because it would disturb vested rights of other legatees under the will. See Gutman, 198 Md. at 44, 81 A.2d at 209.

¶9The present case clearly is distinguishable from these cases. First, application of § 15-405(e) to Evans impairs no vested right. Evans had no vested right to registration to practice as a lobbyist in the State of Maryland. The practice of public professions, such as law, medicine, and, by analogy, lobbying, is not a right, but a privilege subject to conditional public licensure. See, e.g., Attorney Grievance Commission of Maryland v. Reamer, 281 Md. 323, 330-31, 379 A.2d 171, 176 (1977). Such professions may harm the public if practiced improperly. A state necessarily reserves the power to condition such privileges on conditions consistent with the nature and purpose of the privilege. Id.Thus, such privileges are subject to the State’s inherent police power. See Commission *394on Medical Discipline v. Stillman, 291 Md. 390, 405-06, 435 A.2d 747, 755 (1981).

¶10Furthermore, Evans had no vested right in the maintenance of existing regulations governing public lobbying registration. While the Supreme Court in Landgrafrecognized that the presumption against statutory retroactivity is strongest where retroactive application would undermine the stability and predictability of property and contractual rights, 511 U.S. at 271, 114 S.Ct. at 1500, stability or predictability of public licensing requirements are not essential to the existence of effective licensing regimes. The State must remain able to alter its licensing/registration requirements in order to accommodate evolving public needs and concerns. Evans cannot argue persuasively that he did not have “fair notice” that he would be subject to the specific requirements of § 15-405(e) at the time that he engaged in his criminal conduct. He was on notice that his last previous registration inevitably would expire on its own terms, which it did. Evans also was on notice that the regulations governing any application for future registrations were subject to change, and that he could only register anew by re-applying under whatever regulations were in place at the time of each subsequent application.8

¶11Second, application of § 15-405(e) to Evans did not subject him to new duties or increased liability within the meaning of Landgrafor our cases. The contemplated tort liability in Landgrafand Amecom implicated new, affirmative, and unconditional requirements that the employer make restitution *395in the form of damages or reinstatement, respectively. Section 15-405(e) placed no similar duties upon Evans. It did not require Evans to report back to prison or to pay any additional damages or fines. Md.Code (1999, 2003 Supp.), § 15-405(e) of the State Government Article. The State Ethics Commission, by revoking Evans’ lobbying registration, followed the mandate of § 15-405 to protect the integrity of the regulated public profession committed to its supervision. The Commission was given the opportunity to do so because Evans applied for registration within two years of being convicted of a crime of moral turpitude arising out of lobbying activities.

¶12Section 15-405(e) imposed no new burdens or duties on transactions completed by Evans before the effective date of the statute. Unlike the defendants in Landgraf, Amecom, and Rigger, Evans effectively had a pre-existing legal duty not to commit crimes of moral turpitude arising out of lobbying activities: such activities already were unlawful under federal law at the time of his misconduct. See 18 U.S.C. §§ 1341, 1346; 18 U.S.C. § 2. Thus, § 15-405(e) imposed no new duty on Evans than previously existed under federal law.

¶13Further unlike the cases discussed above, all of the events precipitating the application of § 15-405(e) to Evans were not completed before § 15-405(e) became effective. The Commission applied § 15-405(e) to revoke the registration Evans sought after its effective date. As noted earlier, his previous registration had expired of its own terms. In order for § 15-405(e) to apply to him, it was necessary that Evans apply for a new lobbying registration within two years of his conviction, which he obligingly did.9 Thus, the final precipitating event for the application of § 15-405(e) was not Evans’ pre-enactment criminal conviction, but his application for the registration, after the effective date of the statutory change, and *396within two years of his conviction. Because this event was not completed until after the statutory effective date, it did not constitute a “transaction already completed” within the meaning of Landgraf.

¶14The Circuit Court in this case erroneously applied Allstate v. Kim in concluding that Evans’ new application after the enactment of § 15-405(e) and within two years of his conviction was “of no significance.” Kim, like our other cases discussed here, applied the presumption against retroactive application of a statute where the proposed application would be unquestionably retroactive. The passage in Kim relied upon by the Circuit Court, 376 Md. at 289-290, 829 A.2d at 618-619, did not define retroactivity, however. Instead, it dealt with whether “context” indicated a legislative intent to have the statute in question apply retrospectively. Id. We had no need in Kim to dwell on whether the proposed statutory application should be considered prospective or retroactive for, as in Landgraf, the proposed application of the statute in Kim was undisputedly retroactive.10Id.We principally analyzed whether the Legislature intended for the statute in question to have retroactive effect. Kim, 376 Md. at 290-92, 829 A.2d at 619-20. The Circuit Court in the present case incorrectly reasoned that, under Kim, the fact that Evans’ license application postdated the effective date § 15-405(e) was “of no significance.” To the contrary, it is a key reason why § 15-405(e), as applied to Evans, was prospective.

¶15Concluding that § 15-405(e) was applied prospectively to Evans also is consistent with the holdings of other state courts confronted with analogous situations. In R.A.M. of South Florida, Inc., a licensing statute granting unlicensed contractors the right to cure their unlicensed status without invalidat*397ing pre-existing contracts was amended to revoke the right to cure. 869 So.2d 1210, 1214 (Fla.Dist.Ct.App.2004), cert granted, citation not available. The appellant general contractor in R.A.M., without the benefit of the required license, pursued a masonry contract with a subcontractor. R.A.M., 869 So.2d at 1213. A dispute arose and the subcontractor, in order to discharge its obligations, obtained a declaratory judgment that the contract was illegal and unenforceable. R.A.M., 869 So.2d at 1214. On appeal, the general contractor claimed that it was entitled to cure its unlicensed status under the previous version of the statute because the parties had entered into their contract before the statute eliminating the cure opportunity was enacted. R.A.M., 869 So.2d at 1215.

¶16Applying Landgrafthe District Court of Appeal of Florida found that the statute was not retrospective in its application. R.A.M., 869 So.2d at 1214, 1216-18. The court held that the general contractor was on “fair notice” that the statutory provision allowing the general contractor to cure its unlicensed status was “a matter of legislative grace that could be withdrawn by subsequent legislative action.” R.A.M., 869 So.2d at 1217. The court reasoned that the general contractor “could have had no settled expectation or claim of reasonable reliance based on the cure provision until [it] had taken the steps necessary to be legally licensed.” Id.Further, the court found that the amendment to the statute did not “attach new legal consequences to events completed before its enactment” because the general contractor had not exercised its right to cure under the previous statute; thus, “there was no relevant event completed before the effective date of the [amended] statute.” R.A.M., 869 So.2d at 1218.

¶17The general contractor in R.A.M. did not have a “vested right” to cure its unlicensed status because a vested right “must be more than a mere expectation based on an anticipation of the continuance of an existing law; it must have become a title, legal or equitable, to the present or future enforcement of a demand.” Id.The court distinguished vested rights from expectant or contingent rights, pointing out that “rights are vested ... when the right to enjoyment, *398present or prospective, has become the property of some particular person or persons, as a present interest. They are expectant when they depend upon the continued existence of the present condition of things until the happening of some future event. They are contingent when they are only to come into existence on an event or condition which may not happen or be performed until some other event may prevent their vesting.” Id.The unlicensed general contractor “had nothing more than a hope that the opportunity to cure its unlicensed status would remain available — a ‘mere expectation based on anticipation of the continuance of an existing law.’ ” Id.

¶18In State of Wisconsin v. Chrysler Outboard Corp., the defendant corporation was required to abate a hazardous discharge under a statute enacted after the spill. 219 Wis.2d 130, 580 N.W.2d 203 (1998). The statute required that “[persons ... who cause a hazardous discharge, shall take the actions necessary to restore the environment to the extent practicable and minimize the harmful effects from any discharge to the air, lands or waters of this state.” Chrysler Outboard Corp., 580 N.W.2d at 207. Citing Landgraf, the Supreme Court of Wisconsin held that application of the statute to a pre-enactment discharge would not be a retroactive application. Thus, the court found that the discharge was a continuing event because the corporation failed to abate it. Chrysler Outboard Corp., 580 N.W.2d at 219. As a result, the statute requiring the cleanup did not “attach new legal consequences to events completed before the effective date of the Spill Law.” Chrysler Outboard Corp., 580 N.W.2d at 219. The court in Chrysler Outboard found that the event precipitating the application of the statute was not completed, as the precipitating event included the hazardous discharge, coupled with the continuing failure to abate.11

¶19*399The Majority opinion’s conclusion in the present case that § 15-405(e) was applied retroactively to Evans improperly expands the definition of “retroactive application.” Under the Majority’s view, the presumption against retroactivity successfully may be invoked whenever a statute or licensing scheme operates on past events in any way, ignoring the qualified definition and caveat of caution in this regard found in Supreme Court, other state court, and our own cases. The Majority labels retroactive the Commission’s application of the statute to Evans despite the fact that § 15-405(e) did not impair in this case any previously vested rights, was applied only to a post-effective-date registration application, and was not applied to a transaction completed before the statutory effective date.

¶20For the foregoing reasons, I would reverse the judgment of the Circuit Court for Anne Arundel County and remand the matter to that Court with directions to affirm the action of the State Ethics Commission.

¶21Judge CATHELL authorizes me to state that he joins this dissent.