White v. Register of Wills of Anne Arundel County

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 677

September Term, 2013

DARLENE WHITE

v.

REGISTER OF WILLS OF
ANNE ARUNDEL COUNTY, MARYLAND

Graeff,
Berger,
Arthur,

JJ.

Opinion by Arthur, J.

Filed: May 1, 2014
This case concerns whether appellant Darlene White, the former Chief Deputy

Register of Wills for Anne Arundel County, was an employee of the executive branch or

of the judicial branch. If Ms. White was an executive branch employee, she can bring a

whistleblower complaint under the Maryland Whistleblower Law, Md. Code (1993, 2009

Repl. Vol.) § 5-305 of the State Personnel and Pensions Article; if she was a judicial

branch employee, she cannot.

The Department of Budget and Management, the Office of Administrative

Hearings, and the Circuit Court for Anne Arundel County concluded that Ms. White was

a judicial branch employee and, thus, was not permitted to bring a whistleblower

complaint. We agree and, therefore, affirm.

F ACTUAL AND P ROCEDURAL H ISTORY

This appeal stems from Ms. White’s termination as Chief Deputy Register of Wills

for Anne Arundel County on January 31, 2012. Ms. White contends that she was

terminated in retaliation for a complaint that she filed against her former boss, the

Register of Wills for Anne Arundel County, with the Department of Budget and

Management (“DBM”) on December 19, 2011. She seeks protection under the Maryland

Whistleblower Law, Md. Code (1993, 2009 Repl. Vol.) § 5-305 of the State Personnel

and Pensions Article.

Before her termination, Ms. White called the DBM to inquire about whether the

Maryland Whistleblower Law, Md. Code (1993, 2009 Repl. Vol.) § 5-305 of the State

Personnel and Pensions Article, would protect her from reprisals if she filed a complaint.
According to Ms. White, an employee of DBM told her that she would be protected

because her position as Chief Deputy Register of Wills made her an executive branch

employee. She claims that, in reliance on that advice, she filed a whistleblower complaint

under Md. Code (1993, 2009 Repl. Vol.) § 5-305 of the State Personnel and Pensions

Article with DBM.

After Ms. White was terminated, DBM dismissed her complaint for lack of

jurisdiction, reasoning that Ms. White was a judicial branch employee, but that the

whistleblower statute applied only to executive branch employees.1 Ms. White appealed

to the Office of Administrative Hearings (“OAH”), which affirmed that DBM did not

have jurisdiction over the complaint because Ms. White was a judicial branch employee.

As stated above, Ms. White filed a petition for judicial review in the Circuit Court

for Anne Arundel County. The circuit court affirmed OAH’s dismissal, and Ms. White

noted a timely appeal.

Q UESTION P RESENTED

Ms. White presents a single question for our review:

Is the Office of Administrative Hearings’ finding that Ms. White was
not an executive branch employee capable of filing a whistleblower
complaint under Maryland Whistleblower Law, and was instead a judicial
branch employee, supported by substantial evidence and legally correct?

For the reasons that follow, we answer yes and affirm.

1
Md. Code (1993, 2009 Repl. Vol.) § 5-301 of the State Personnel and Pensions
Article provides that the statute applies only to executive branch employees.

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D ISCUSSION

Ms. White argues that OAH erred when it concluded that she was an employee of

the judicial branch, not the executive branch, and thus, not permitted to file a

whistleblower action under Md. Code (1993, 2009 Repl. Vol.) § 5-305 of the State

Personnel and Pensions Article. We disagree.

In reviewing an administrative agency’s decision, we pass over the circuit court

decision, and we examine the administrative decision using the same standard as the

circuit court. Motor Vehicle Admin. v. Shea, 415 Md. 1, 15 (2010). The Court’s role “is

limited to determining if there is substantial evidence in the record as a whole to support

the agency’s findings and conclusions, and to determine if the administrative decision is

premised upon an erroneous conclusion of law.” United Parcel Service, Inc. v. People’s

Counsel for Baltimore County, 336 Md. 569, 577 (1994).

At the outset, we note that the Office of the Register of Wills itself is indisputably

part of the judicial branch. The Office of the Register of Wills was created by Article IV

of Maryland’s Constitution (Md. C ONST. art. IV, § 41), the article that creates and

empowers the judicial branch. Moreover, the Register of Wills functions as the clerk of

the orphans’ court (Dan Friedman, The Maryland State Constitution 251 (G. Tarr ed.

2011)), by, for example, receiving, filing, and storing papers and records, keeping the

docket, making out and issuing summonses and orders, issuing and certifying copies of

the proceedings in the court, making entries of court proceedings, auditing accounts, etc.

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See generally Md. Code (1974, 2011 Repl. Vol.) § 2-208(c)-(k) of the Estates and Trusts

Article. Thus, the only question is whether Ms. White, in her role as the Chief Deputy of

the Register of Wills, is considered part of the judicial branch as well.

At first glance, it would appear that if the Register of Wills is part of the judiciary,

then the Chief Deputy of the Register of Wills must also be part of the judiciary. Ms.

White, however, points to several statutes that give the Comptroller some control over

the staff of the Register of Wills. Because the Comptroller is part of the executive branch

(M D. C ONST. art. II, § 18), Ms. White argues that the staff of the Register of Wills must

also be part of the executive branch.

In support of her contention, Ms. White specifically cites Md. Code (1997, Repl.

Vol. 2009), § 4-108(a) and (c) of the State Government Article, which allow the

Comptroller to set “the number and compensation of assistant clerks or deputies

employed by each register of wills” and to increase the salary of the staff in the offices of

the registers of wills “commensurate with the increases granted to State employees

generally.” She also cites Md. Code (1974, 2011 Repl. Vol.) § 2-208(b) of the Estates

and Trusts Article, which gives the Comptroller the power to approve the appointments

and compensation of deputies and clerks (after they have been appointed by the Register

of Wills). On the basis of these enactments, Ms. White argues that the Comptroller’s

powers over the staff of the Register of Wills are sufficient to convert what would

otherwise be a judicial branch position into an executive branch position. In our view,

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Ms. White overstates the importance of these statutes.

When we interpret statutes, we begin by examining the “normal, plain meaning of

the language of the statute.” Doe v. Montgomery Cnty. Bd. of Elections, 406 Md. 697,

712 (2008). We think that the plain language here shows that the Comptroller’s authority

is limited in its reach.

The statutes give the Comptroller no explicit control over the core actions and

operations of the deputies and clerks in the Office of the Register of Wills. In particular,

the statutes do not empower the Comptroller to supervise the deputies and clerks or to

decide whether to hire or fire them. To the contrary, the Register of Wills has the

statutory power to appoint deputies and clerks. Md. Code (1974, 2011 Repl. Vol.) §

2-208(b) of the Estates and Trusts Article. The Comptroller simply serves as a fiscal

watchdog, determining the number of deputies and clerks and approving their

appointments and compensation.

It makes perfect sense for the Comptroller to serve in that role. The salaries and

expenses of the Office of the Register of Wills are paid from the fees and receipts of the

office (Md. Code (1974, 2011 Repl. Vol.) § 2-205(d) of the Estates and Trusts Article),

after which the excess goes to the State’s General Fund. M D. C ONST. art. XV, § 1.

Moreover, if the Office of the Register of Wills does not have sufficient funds to pay its

salaries and expenses, the deficiency is funded from the taxes that the Register remits to

the Comptroller during that fiscal year. Md. Code (1974, 2011 Repl. Vol.) § 2-205(e). In

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these circumstances, the State has an obvious economic interest in ensuring that the

Register of Wills does not appoint unnecessary deputies or clerks and does not overpay

the deputies and clerks whom she has appointed. In setting the number and compensation

of the deputies and clerks and approving their appointments and compensation, the

Comptroller protects the State’s economic interest.2

Not only do basic canons of statutory interpretation favor the conclusion that Ms.

White is a judicial employee, but administrative deference favors it as well. We

recognize that “an administrative agency’s interpretation and application of the statute”

that the agency administers should be given “considerable weight” by reviewing courts.

Bowen v. City of Annapolis, 402 Md. 587, 612 (2007). Here, DBM, the agency

responsible for overseeing the Whistleblower Act, did not think the Act applied to Ms.

White. Thus, we should accord DBM’s view substantial weight. Moreover, DBM has

acted consistently with this view because it never classified Ms. White as an employee of

the executive branch.

Even if we credited the argument that the Comptroller’s statutory powers could

transform the staff of the Register of Wills into executive branch employees, that would

2
Before 1990, the Comptroller had similar authority over the compensation of the
clerks of the circuit courts. See 69 Op. of the Att’y Gen’l 57 (1984). In discussing that
authority, this Court stated that its “‘manifest purpose’” was “‘to prevent the wrongful
absorption of the receipts of the office by excessive salaries on the one hand, and to
secure the services of competent persons by the assurance on the other hand of just and
reasonable compensation.’” Chester v. State, 32 Md. App. 593, 609 (1975), cert. denied,
278 Md. 718 (1976) (quoting State, Use of Smith v. Turner, 101 Md. 584, 590 (1905)).

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not help Ms. White, because the Chief Deputy of the Register of Wills is not a mere clerk

or deputy. By statute, the Chief Deputy can act in place of the Register of Wills, and all

actions taken by the Chief Deputy while substituting for the Register of Wills have “the

force and effect as if performed by the register.” Md. Code (1974, 2011 Repl. Vol.) §

2-208 of the Estates and Trusts Article. For that reason, the Chief Deputy acts as the

Register of Wills’s alter ego, and she should be classified in the same way as the Register

of Wills herself. See Rucker v. Harford Cnty., 316 Md. 275, 281 (1989) (holding that

because a deputy sheriff functions as the alter ego of the sheriff, and exercises the same

authority, deputy sheriffs are classified the same way as sheriffs as employees of

Maryland). Given that the Register of Wills is a judicial employee, it follows that the

Chief Deputy will be classified that way as well.

Having rejected Ms. White’s argument that statutory interpretation favors her

classification as an executive branch employee, we turn next to her other main argument,3

concerning whether her classification as a judiciary employee would raise a separation of

powers concern. We hold that it does not.

3
Although Ms. White makes several other arguments as to why she should be
considered an executive branch employee, her arguments make unwarranted inferences
and are ultimately grounded in the issues of statutory interpretation that we have already
discussed. For instance, Ms. White cites a letter that she received from former Chief
Judge Robert M. Bell in response to an inquiry that she sent to him. Contrary to Ms.
White’s characterization, the letter did not state that she was a judicial employee. Instead,
it stated that the Chief Judge could not offer an advisory opinion as to how Ms. White
was classified. The Chief Judge then merely reiterated the plain language of the statute
that gives the Comptroller administrative oversight over the staff of the Register of Wills.

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Article 8 of the Maryland Declaration of Rights states that “[t]he Legislative,

Executive and Judicial powers of Government ought to be forever separate and distinct

from each other; and no person exercising the functions of one of said Departments shall

assume or discharge the duties of any other.” Ms. White argues for a literal reading of

this provision, under which an employee from one branch of government could not have

any degree of control over an employee from another branch. In her view, therefore, the

Comptroller, as part of the executive branch, could not exercise any control over the staff

of the Register of Wills, unless the staff members were also executive branch employees.

Prior Maryland cases have, however, shown that a strict reading of the separation

of powers doctrine is inappropriate. See Baltimore v. State, 15 Md. 376, 457 (1860)

(stating that “[t]he words of [Article 8] appear to be plain enough, but they have not been

accepted in their literal sense”); see also McCulloch v. Glendening, 347 Md. 272, 283

(1997) (stating that “the doctrine has never been rigidly applied”); Dep’t of Natural Res.

v. Linchester Sand & Gravel Co., 274 Md. 211, 220 (1975) (stating that the separation of

powers doctrine encompasses “a sensible degree of elasticity”); Dan Friedman, The

Maryland State Constitution, supra, 34 (stating that “Maryland courts have never

interpreted Article 8 in an unqualified fashion”).

Moreover, the Court of Appeals has held that the main purpose of the separation of

powers clause is to prevent one branch of government from usurping the essential

functions and powers of another branch. See Shell Oil Co. v. Supervisor of Assessments

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of Prince George's Cnty., 276 Md. 36, 46 (1975) (stating that courts cannot perform “non-

judicial functions” and that administrative agencies cannot perform “judicial functions”);

accord O’Hara v. Kovens, 92 Md. App. 9, 22-23, cert. denied, 328 Md. 93 (1992) (stating

that “the separation of powers doctrine preserves to the one branch of government its

essential functions and prohibits any other branch from interfering with or usurping those

functions”) (emphasis in original).

Here, the Comptroller does not perform any core or essential judicial functions,

such as rendering final judgments that adjudicate a party’s rights (Dan Friedman, The

Maryland State Constitution, supra, 35; see Shell, 276 Md. at 46) or even hiring, firing, or

supervising court clerks. Instead, in furtherance of the State’s fiscal interest in the

efficient operation of the Register of Wills’ office, the Comptroller merely maintains

some administrative control over the size and compensation of the Register’s staff. This

is no more of an encroachment on a core judicial function than is legislation establishing

minimum standards for bar admission, which has been upheld. See Dan Friedman, The

Maryland State Constitution, supra, 35 & n. 52-53 citing Attorney General v. Waldron,

289 Md. 683 (1981)).

On the other hand, a serious separation of powers issue would arise if Ms. White,

as Chief Deputy, were an executive branch employee. As previously stated, there is no

dispute that the Register of Wills herself is a judicial officer. Yet, under Md. Code (1974,

2011 Repl. Vol.) § 2-208(b) of the Estates and Trusts Article, Ms. White, as Chief

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Deputy, had the “power and authority to act in the place of the register.” In addition,

“every act” that Ms. White performed when acting as the Register of Wills had “the force

and effect as if performed by the register” herself. Id. Under Ms. White’s view,

therefore, not only would an executive branch employee have the “power and authority to

act in place” of a judicial officer, but the actions of that executive branch employee would

have “the force and effect” of those of the judicial officer herself. In view of our

obligation to avoid an interpretation that would raise the serious constitutional objections

that Ms. White’s interpretation raises, we reject her contention that she is an executive

branch employee.

In summary, we conclude that OAH did not err in finding that Ms. White was a

judicial branch employee and that she does not, therefore, have the protections of the

Whistleblower Act. We affirm.

JUDGMENT OF THE CIRCUIT
COURT FOR ANNE ARUNDEL
COUNTY AFFIRMED. COSTS
TO BE PAID BY APPELLANT.

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