Plein v. Department of Labor, Licensing and Regulation
No. 116, September Term, 2001

HEADNOTE:

DECLINE; OVERRULE; AFFIRM; GOOD CAUSE; SATISFACTORY
EMPLOYMENT; CLAIM ANT; UNEMPLOYMENT; CONDITIONS OF
E M P L O Y M E N T ; U N E M P L O Y M E N T I N S U R A N C E ; Q U I T ;
DISQUALIFICATION; FAULT; LEGISLATIVE HISTORY; SALARY;
E L I G I B L E; D I R E C T L Y A T T R I BU T A B L E ; N E C E SS I T O U S;
COMPELLING NATURE; INVOLUNTARY UNEMPLO YMENT; FULL-
TIME EMPLOYMENT

An employee w ho volun tarily terminates otherwise satisfactory employment
in order to accept a job paying a higher salary is not eligible for unemployment
benefits because an offer of higher pay is not of such a necessitous or compelling
nature that the claimant had no reasonable alternative other than to leave the
employme nt.

IN THE COURT OF APPEALS OF MARYLAND

No. 116

September Term, 2001

PATR ICK M . PLEIN

DEPARTMENT OF LABOR, LICENSING
AND REGULATION

Bell, C. J.
Eldridge
Raker
Wilner
Cathell
Harrell
Battaglia,
JJ.

Opinion by Bell, C. J.
Eldridge, Cathell and Battaglia, JJ., dissent

Filed: June 12, 2002

The issue this case presents is whether the decision of a divided Court, in Total

Audio-Visual Systems , Inc. v. Department of Labor, Licensing and Regulation, 360 Md.

387, 758 A.2d 124 (2000), should be reconsidered and overruled. Having granted the

petition for certiorari filed by Patrick M. Plein, the appellant, while the appeal was pending

in the Co urt of S pecial A ppeals , see ___ M d. ___, 790 A.2d 673, 2002 Md . LEXIS 55 (2002),

and cons idered the a rgumen ts presented a t oral argum ent, we decline the invitation, joined

in by the appellee, Department of Labor, Licensing and Regulation, which argues, consistent

with its position in tha t case, that Total Audio-Visual was wr ongly decided, to overrule that

decisio n and, in stead, re affirm it.

In Total A udio-Visual, this Court considered "whether, under the Labor and

Employment Article, an employee is entitled to une mploymen t benefits on the basis of his

or her employment with a previous employer where that employee voluntarily resigned a

permanent and satisfac tory job with tha t previous e mployer in ord er to take a job with

another emp loyer," 360 Md. at 390, 790 A.2d at 125, concluding that, under the

circumstances of that case, the emplo yee was not. Id. That conclusion was dictated by our

interpretation of Maryland Ann. Code Lab. & E mpl.1 §8-1001(1991, 1999 Repl. Vol.) and,

in particular, the phrase "good cause," as therein used.

Section 8-1001, in its entirety, provides:

"(a) Grounds for disqualification. -- (1) An individual w ho otherw ise is
eligible to receive benefits is disqualified from receiving benefits if the
Secretary finds that unemployment results from voluntarily leaving work
without good cause.

(2) A claima nt who is otherwise eligible for benefits from the loss of
full-time employme nt may not be disqualified from the be nefits
attributable to the full-time employment because the claimant
voluntarily quit a part-time employment, if the claimant quit the
part-time em ployment be fore the loss of the full-tim e employm ent.

1 All future reference to sections in the Labor and Employment Article refer to the
1999 R eplace ment V olume , unless o therwi se stated .

(b) Finding of good cause. The Sec retary may find tha t a cause fo r voluntarily
leaving is good cause only if:

(1) the cause is directly attributable to, arising from, or connected with:

(i) the conditions of employment; or

(ii) the actions o f the emp loying unit; or

(2) an indiv idual:

(i) is laid off from employment through no fault of the
individual;

(ii) obtains subsequent employment that pays weekly wages that
total less than 50 % of the weekly w age earne d in the
employment from which the individual was laid off; and

(iii) leaves the subsequent employment to attend a training
program for whic h the individ ual has bee n chosen that:

1. is offered under the Maryland Job Training Partnership
Act; or

2. oth erw ise is app rove d by th e Se creta ry.

(i) a substantial cause that is directly attributable to, arising
from, or connected with conditions of employment or actions of
the employing unit; or

(ii) of such necessitous or comp elling nature that the individual
has no reasonable alternative other than leaving the
employme nt.

(2) For determination of the application of p aragraph ( 1)(ii) of this
subsection to an individ ual who leaves em ployment because of the
health of the individual or another for whom the individual must care,
the individual shall submit a written statemen t or other documen tary
evidence of the health problem from a hospital or physician.

(d) Required disqualification. -- in addition to other circumstances for which
a disqualification may be imposed, neither good cause nor a valid circumstance
exist and a disqualification shall be imposed if an individual leaves
employme nt:

(1) to become self-employed;

(2) to accompany a spouse to a new location or to join a spouse in a
new location; or

(3) to attend an educational institution"

(emphasis added ).

Noting that § 8-1001 (b) was the applicable section because it was there that the

Legislature defined "good cause" in terms of two permitted and definitive findings, 360 Md.

at 397, 75 8 A.2 d at 130, and the rules of statutory construction that we determined to be

relevant, id. at 395, 758 A.2d at 128, we concluded that "[a] plain reading of § 8-1001 makes

clear that leaving employment for a better paying job does not constitute "good cause." Id.

Focusing on the difference between subsection (b)(1), which permits a finding of good cause

only when the reason for voluntarily leaving employment "`is directly attributable to, arising

from, or connected with' either a condition of employment or an action of the employment

unit,"' id., and subsection (b)(2), in which the triggering event is the employee's b eing laid

off withou t fault, id., we reasoned that "good cause must be found, if at all, under subsection

(b)(1)." Id. at 398, 7 58 A.2 d at 130 .

Analyzing subsection (b)(1), we said:

"Under subsection (b)(1), to be good cause, the reason for voluntarily leaving
employment must be job related, see [Board of Educ. of M ontgomery County
v.] Paynter, supra, 303 Md . [22] at 29, 491 A.2d [1186] at 1189-90 (1985),
and more particularly, relate to the conditions existing on the claim ant's job or
involve acts by the claimant's employment unit. See § 8-1001(b)(1). An offer
of grea ter p ay by another employer to induce the claima nt's voluntary
termination does not qualify; because such offers are conditions of the offered
employment and thus only relate to the conditions of the future em ployment.
Although, to be sure, while affecting employment conditions generally, and,
perhaps, the claiman t's employmen t in some way, they surely are not "directly
attributable to, arising from or connected with" the conditions existing in the
employing unit from which the claimant resigned. If an offer of greater pay
can be "good cause" for an employee voluntarily to terminate otherwise
satisfactory employment, then any condition of future employment which
compares favo rabl y with the c laim ant's present em ployment an d is offered and
accepted, as an indu cement to the claiman t to leave that employment, must
also be consid ered "g ood ca use."

360 Md. at 398, 758 A.2d at 130. In Paynter,this Court construed the predecessor to that

section , Maryland Ann. C ode art. 95A , § 6 (1957 , 1979 Re pl. Vol.).2 It conclude d that art.

2 Maryland Ann. Code art. 95A, § 6, as relevant, provided:

"(a) If the Executive Director ... finds that th e individua l's unemploym ent is
due to his leaving work voluntarily without good cause. Only a cause which
is directly attributable to, arising from, or connected with the conditions of

95, § 6 (a) w as unam biguou s, "com mand [ed] tha t good c ause be job relat ed," and recognized

as an alternative valid circum stance for v oluntarily leaving work, one "of such necessitous

or compelling nature that the individual had no reasonable alternative other than to leave the

emplo yment." 3 03 M d. at 29- 30, 491 A.2d a t 1190.

Relying on Paynter for confirmation of the interpretation given § 8-1001 (a), the Total

Audio-Visual Court was persuaded by the fact that the statutory scheme, as reflected in §

8-1001, remained as it was when Paynter was decided. 360 Md. at 400, 758 A.2d at 131.

Section § 8-1001 (c), like art. 95, § 6(a) before it, we pointed out, places circumstances for

voluntarily leaving work into two categories, thus, drawing a distinction between those that

are work related and those that are not work related. Therefore, we opined: "[n]ot being

directly related to, attribu table to or co nnected w ith the emp loyee's employm ent or the actions

of that employing unit, offers of higher pay as an inducement to leave existing employment

must fall, if at all, into this latter category," id. at 401, 758 A.2d at 131, that is, they must

meet the "ne cessitou s and co mpellin g" test. Id. Under that stricter test, we reiterated,

"more needs to be shown than that the precipitating event or cause ""`would reasonably

employment or actions o f the emp loyer may be cons idered g ood ca use....
Leaving work to beco me s elf-e mpl oyed , to ac com pan y or jo in on e's spouse in
a new locality, or to attend an educational institution is neither good cause nor
a valid circumstance for voluntarily leaving work. Only a substantial cause
which is directly attributable to, arising from, or connected with the conditions
of employment or actions of the employer, or another cause of such a
necessitous or compelling nature that the individ ual had no reasonab le
alternative other than to leave the em ployment m ay be conside red a valid
circum stance...."

Md. Ann. Code art. 95A, § 11(a) (1957, 1979 Repl.Vol., 1984 Cum.Supp.) directed that
"[w]here ver in this article th e word 'E xecutive D irector' appear s, it shall be con strued to
mean the Sec retary of E mploym ent and Trainin g."

[have] impel[led] the average able-bodied qualified worker to give up his or her

employment."'" Id., quoting Paynter, 303 Md. at 36-37, 491 A.2d at 1193, in turn quoting

Uniwe ld Products, Inc. v. Indus. Re lations Com m'n, Etc., 277 S o.2d 82 7, 829 ( Fla.Ap p. 4

Dist.1973).

The Court also was persuaded by the absolute disqualifications prescribed in § 8-1001

(d). In that regard, we noted:

"By denying unemployment benefits to employees who leave work to go into
business, to relocate with a spouse or to go to school, that section makes clear
that purely personal reasons for lea ving wo rk will not su ffice as a p redicate
for unemployment benefits. It is difficult to reconcile, except on that
basis--going into busines s for onese lf is a person al matter--why the Legislature
would permit an employee, who voluntarily terminates permanent and
otherwise satisfactory employment for increased wag es, on the theory that his
or her prospe cts and financial condition are thereby im proved, to b e eligible
for unemplo yment bene fits, while at the same time denying the sa me right to
a claimant, who, for the same reasons, voluntarily leaves w ork to go in to
business for him or herself. Accepting more money and changing jobs is as
much of a gam ble and thu s, as much of a perso nal matter, as g oing into
business for oneself. In our view, it is unmistakably clear that § 8-1001(a) was
not designed to provide benefits when the precipitating cause for the voluntary
leaving of the employment was for higher pay or a better job. Instead, it was
designed to prevent hardship to persons w ho lose their jo bs, through no fault
of their own." [3]

3 Section 8-102 of the Labor and Employment Article provides:

"(a) Interpretation and application.--This section is a guide to the interpretation
and ap plication of this title .
(b) Finding s.--The G eneral As sembly finds that:
(1) economic insecurity due to unemployment is a serious
menace to the health, morals, and welfare of the people of the
State;
(2) involuntary unemployment is a subject of general interest
and concern that requires appropriate action by the General
Assembly to prevent the spread of involuntary unemployment
and to lighten its burden, which often falls with crushing force
on the unem ployed wo rker and th e family of the unemployed
worker;
(3) the achievement o f security for society requires protection

Total Audio-Visual, 360 Md. at 400-01, 758 A.2d at 131-32.

Fina lly, we found § 8-611, especially the prohibition contained in subsection (e) (4),

to be bo th instru ctive an d cons istent. Id. at 402, 758 A.2d at 132. We reasoned:

"Under § 8-611(e),... "[t]he Secretary may not charge benefits paid to a
claimant against the earned rating record of an employin g unit if ... (4) the
claimant left employment voluntarily to accept better employment or enter
training approved by the Secreta ry." (Empha sis added). If, g iven the spe cific
provisions of § 8-611(e)(4), the earned rating record o f the emp loying unit
which the claimant left voluntarily to accept better employment cannot be
charged for the benefits pa yable as a result o f a subseq uent lay off, the n it
seems strange indeed that, as to that employing unit, leaving employment
voluntarily to accept better employment would be considered good cause for
leaving work. Thus, while, pursuant to § 8-1001(a), a claimant may be eligible
for unemployment benefits, the determ ination wh ether those b enefits sho uld
or may be paid is employer specific.[4] Reading § 8-1001(a) as the appellee

against involuntary unemplo yment, whic h is the greatest hazard
of our economic lives; and
(4) security for society can be provided by encouraging
employers to provide more stable employment and by the
systematic accumu lation of fu nds durin g periods of employment
to provide benefits for periods of unemployment, maintaining
the purchasing power, and limiting the serious social
conseq uence s of po or relief assistan ce.
(c) Statement of policy.--The General Assembly declares that, in its considered
judgmen t, the public g ood and the genera l welfare o f the citizens o f the State
require the enactm ent of this title, under the police powers of the State, for the
compulsory setting aside of un employme nt reserves to be used f or the bene fit
of individuals unemployed through no fault of their own."

4 Section 8-611 (b) expressly provides:

"Allocatio n of regu lar benefits.--E xcept as pro vided in su bsection (d ) of this
section, the Secretary shall charge pro rata against the earned rating record of
each base peri od e mpl oyer all regular benefits and the share of extended
benefits required un der subsec tion (c) of this s ection in the same proportion as
the wages paid by the base period employer is to the total wages of the
claima nt durin g the ba se perio d, and ro unded to the ne arest do llar."

proposes would re nder § 8-6 11(e)(4) m eaningless. See, Fraternal Order of
Police, Montgomery County Lodge No. 35 v. Mehrling, 343 Md. 155, 180, 680
A.2d 1052, 1065 (1996) ("[n]or should we interpret a statutory scheme so as
to rend er any pa rt of it me aningle ss or nu gatory."),"

id. at 404, 758 at 133, and concluded:

"[the claimant] was not, at the time of his voluntary departure eligible for
unemployment benefits because the claimant left his employment with the
petitioner for other employme nt and, in fac t, entered into th at employm ent.
Therefore, the [claimant] could not, at that time, have received unemployment
benefits for the simp le and inesc apable reason that he was employed. That he
subseque ntly beco mes une mpl oyed, and therefore eligible, because of the
actions of the sub sequent em ployer does not change the situation. The
claim ant's unemployment results from the subsequent employer's laying h im
off and not from the petitioner's actions. Rath er, it w as th e cla iman t's
inadvertent actions which led to his unemploymen t through the, perhaps ve ry
reason able, ac ceptan ce of e mploym ent that s uppos edly paid better."

Id. at 405, 758 A.2d at 134.

The appellant in this case was emp loyed by Atlas Tile & Terrazz o as a tile setter's

helper, a job that paid $9 .00 an h our. He ac cepted emplo yment w ith Hom e Dep ot, U.S .A.,

at its Ellicott City store, as a sales ass ociate in the floo r and w all depa rtment. That job p aid

$12.00 an hour with the prospect of receivin g, after a w aiting period , a health insurance plan

and stock purchase options and, after one year, two weeks vacation and sick leave. The

appellant left his employment with Atlas and began working at Home Depot on August 14,

2000. On Sep tember 27 , 2000, he w as laid off, u nexpecte dly and throug h no fault o f his

own. His application for unemployment benefits was denied on the authority of Total

Audio-Visual.

This case demonstrates, the appellant submits, the devastating impact that Total

Audio-Visual has had on workers, "especially the working poor striving to pull themselves

out of poverty and better their conditions of employment," a conclu sion with which the

Department of Labor, Licensing and Regulation (hereinafter "DLL R"), the appellee, takes

no issue. For that reason, he strenuously argues for the overturning of Total Audio-Visual.

In suppo rt of tha t result, the appella nt offe rs a num ber of a rgume nts. Although, as the

appellant points out, the claimant's perspective was not re presented in Total Audio-Visual,

the claimant in that case having chosen not to participate in the appeal, many of the

argumen ts he offers are not new ones. In fact, DLLR, the appellee in that case and the

purported appellee he re, made m any of them in its attempt to uphold the decision to award

unemployment benefits to the Total Audio-Visual claima nt.

DL LR a rgue d un succ essf ully in Total Audio-Visual that unem ployment be nefits

were properly awarded in that case precisely because a claimant who leaves a position for

other employment with similar responsibilities and substantially better pay has left with good

cause under § 8-1001; that the Board's interpretation of § 8-1001 was consistent with the

plain language of the statute, its legislative history, and the remedial nature of the

Unemployment Insurance Law; and, citing Paynter, supra, 303 Md. 22, 491 A.2d 1186, as

well as cases from other jurisdictions, that the Board's decision was consistent with the

standards set by this Court addressing the issue whether leaving one's job to accept better

employment is a cause which would impel the average reasonable worker to leave his or her

job. 360 Md. at 392, 758 A.2d at 127. Those arguments, repeated h ere by the appellant, are

fortified by the clai mant's perspe ctive an d perha ps mor e eloqu ently stated .

In addition, the appellant challenges the Cou rt's use of § 8-611 (e) as su pport for its

interpretation of § 8-1001, contending that the Court's statement of the scope of § 8-611

conflated two concepts, namely, "whether the pe riod of employmen t with the [first employer]

may be used to calculate the claimant's unemployment benefits" and "whether those ben efits

are chargeab le to the [first employer]," Total Audio-Visual, 360 Md. at 403, 758 A.2d at 132-

33, to one, only the la tter to w hich tha t section had an y applicab ility. He also maintains that

those sections are perfectly consistent, representing "the legislature's attempt to strike a

correct, delicate bala nce in furtherance of the purposes of unemployment insurance, such as

income security, economic stimulus and stability, welfare avoidance" and other goals.

In Total Audio-Visual, the Court equated leaving employment for other employment

with better pay to leaving employment to become self-employed, a circumstance that we have

seen is specifically excluded as providing good cause for voluntary termination of

employme nt. We said, more particularly: "Accepting more money and changing jobs is as

much of a gamble and thus, as much of a personal matter as going into bu siness f or ones elf."

Id. at 403, 758 A.2d at 132. The appellant takes issue with this comparison. Instead, he sees

the issue as one involving competence. While the DLLR is competent to assess the relative

ranking of jobs based on an evaluation of the wages and benefits each offers, the appellant

submits, it has no such competence when it comes to business plans and prospects. Thus,

he argu es,

"allowing benefits to those who quit for a better job is very different from
allowing benefits to every would-be entrepreneur who wants to start a new
business. The former represents a manageable inquiry with an objective
standard: was the second job better in terms of wages and benefits? The latter
would supplant the function of agencies like the U.S. Small Business
Adm inistratio n in pro viding incom e supp ort to fle dgling busine sses."

Fina lly, the appellant disagrees with the Total Audio-Visual Court's interpretation of

Paynter. The Total Audio-Visual Court determined that interpreting § 8-1001 as precluding

a finding of good cause when an employee leaves otherwise satisfactory employment for

employment paying higher wages was consistent with Paynter's good cause a nalysis. See

360 Md. a t 400-0 1, 758 A .2d at 13 1-32. Using the same analysis, the appellant asserts that

his decision to leave a sm all compa ny paying a low wage an d go with a nat iona l com pan y,

paying more and with th e promise of future, e xcellent ben efits, "is man ifestly reason able."

He continues: "Indeed, for low-wage workers and their families, leaving low-paying jobs that

do not provide benefits is not only reasonable, it is often nec essary to provid e for basic

necess ities and lift them out of p overty."

DLLR disagrees that § 8-1001 (d) supports the interpretation of § 8-1001 to preclude

benefits when a claimant lea ves emp loyment for b etter pay, conten ding that s uch an

interpretation renders that subsection surplusage, such provision disqualifying employees

who quit a job to become self-employed, to accompany a spouse to a new location or to

attend an educational institution not being necessary. It explains:

"The decision of these employees to leave their jobs has nothing to do with any
`actions of the employing unit,' § 8-1001 (b) (1) (ii), but rather implicates, by
nece ssity, the `conditions of employment' prong of the disqualification statute.
If the Legislature shared the Total Audio-Visual majority's interpretation that
prospective events such as `future em ployment' lack the requisite re lationship
with `the conditions existing on the c laimant's job,' ..., there wo uld have been
no need to specifically identify these three situations as causes or
circumstances requiring disqualification for benefits. The General A ssembly
enumerated these situations, however, because it understood that each is
`directly attributable to, arising from, or connected with ... the conditions of
employme nt, § 8-1001 (b) (1) (i), just not the type that w arrants unemployment
compensation. The Legislature made a different policy judgment with respect
to the de cision to leave e mploym ent for a higher paying p osition."

Resolution of the case sub judice, as it was in Total Audio-Visual, 360 Md. at 393,

758 A.2d a t 127, is a matter of statutory construction. As such, the Court's function,

consistent with the cardina l rule of statutory in terpreta tion, see Mayor and City Council of

Baltimore v. Chase, 360 Md. 121, 128, 756 A.2d 987, 991 (2000) and the cases cited therein,

is to discern and effectuate the intention of the Legislature. In Total Audio-Visual, this

Court, albeit, and perhaps significantly so, a sharply divided one, determined, and held, that

the Gen eral A ssem bly did not intend that a person who voluntarily terminates his or her

otherwise satisfactory em ployment fo r other emp loyment with better pay be elig ible to

receive unemployment benefits when laid off through no fault of his or her own by the

subsequent employer. It is well settled that the Legislature is presumed to be aware of

decisions of the C ourt of Appe als, Giffin v. Crane, 351 Md. 133, 154, 716 A.2d 1029, 1040

(1998); Romm v. Flax, 340 Md. 690, 698, 668 A.2d 1, 4 (1995 ); Harris v. Sta te, 331 Md.

137, 150, 626 A.2 d 946, 95 2 (1993); State v. Bricker, 321 Md. 86, 93, 581 A.2d 9, 12

(1990); Mayor and City Council of Baltimore v. Hackley, 300 Md. 277, 283, 477 A.2d 1174,

1177 (1984 ). Moreo ver, the Leg islature has sh own itself q uite capable, and willing, to act

decisively and swif tly when the C ourt does n ot accurately discern its inten t or when it

believes the Court h as gotten it wron g. See, e.g., 1995 Md. Laws 248, overruling, at the next

legislative session, the effects of our decision in Tandra S. v. Tyrone W., 336 Md. 303, 315,

648 A.2d 439, 445 (199 4); see also Langston v. Riffe, 359 Md. 396, 405, 754 A.2d 389, 404

(2000).5 Accordingly, the Legisla ture's inaction , to the same extent to w hich it acts to

5 For other examples of the Legislature reacting to our cases, see the following laws
as well as the decision s that the Ge neral Asse mbly specifically enacted the laws to overturn:
2000 Md. Laws 230 (authorizing the Worker's Compensation Commission to order an offset
or credit against an award for permanent partial disability for any vocational rehabilitation
or temporary total disability benefits previously paid to a covered employee), overturning
Sealy Furniture v. Miller, 356 Md. 462, 740 A.2d 594 (1999) and Philip Electronics North
v. Wright, 348 Md. 209, 703 A.2d 150 (1997); 2000 Md. Laws 59 (clarifying the
circumstances under which parties to a contract may agree to the payment of late fees),
overturning United C able Telev ision of B altimore Lim ited Partnership v. Burch, 354 Md.
658, 732 A.2d 887 (1999); 2000 Md. Laws 350 (clarifying the circumstances under which
probation may be imposed, describing generally appropriate conditions of probation, and
adding Howard, but not Anne Arun del, County to the list of counties in which home
detention may be imposed as a condition of probation), responding to Bailey v. State , 355
Md. 287, 734 A.2d 684 (2999) (holding illegal a 24-month term of home detention imposed
as a condition of probation on a defendant convicted in Anne Arundel Coun ty because the
relevant criminal statute only authorized the use of confinement as a condition of probation
in Charles, S t. Mary's, Cecil, Harford, and C alvert Counties); 2000 Md. Laws 384 (clarifying
the circumstances under which the decision of a local alcoholic beverage licensing board may
be reviewed and expr essly granting sta nding to challenge board decisions to holders of
existing licenses), overturning Edgewater Liquors v. Liston, 349 Md. 803, 709 A.2d 1301
(1998); 2000 Md. Laws 569 (authorizing health maintenance organizations to receive
subrogation or reimbursement from settlements and damages received by its members from
third party tortfeasors), overturning Reime r v. Columbia Medical Plan, 358 Md 222, 747
A.2d 677 (2000); 2000 Md. Laws 339 (abrogating the distinction between an a ccessory
before the fact and a principal in a crime under certain circumstances), overturning State v.
Sowell , 353 Md. 713, 728 A.2d 712 (1999); 2000 Md. Laws 131 (making medical bills and

effect a change in a statute that this Court recently has interpreted, in the process

mischa racterizi ng the L egislatu re's inten t, must b e consi dered in that ligh t.

In each of the last two legislative sessions, in 2001 and 2002, bills were introduced

in the House of Delegates and the Senate to ov errule this Court's decision in Total Audio-

Visual. In 2001, introduced as HB 1 038, in the House, by Delegate Busch, and cross-filed

as SB 665 , in the Sena te, by Senator R uben, the leg islation did no t make it ou t of the

Economic Matte rs Com mittee in the Ho use or th e Finan ce Co mmitte e in the S enate.

Although gaining sponso rs, the leg islation f ared no better in the 200 2 sessio n. HB 336 was

introduced in the House by Delegates Sher, Barve, Hurson, Moe, H ubbard, Goldw ater,

Howard, Mandel and Grosfeld an d, in the Senate, SB 25 7 was introduced by Senators

Ruben, Della a nd Sto ne. HB 336 was with drawn a nd SB 2 57 again re ceived an unfavor able

report in the Finance Committee. Being aware of this Court's decision in Total Audio-Visual

and given the le gislative activity over the past two years the consistent efforts to effect the

overruling of that dec ision , it is clear that the Legislature not only understands the issue

and this Court's in terpretation o f § 8-100 1, the critical legisla tive enactment, but, in the

absence of legislative a ction to am end § 8-1 001 to refle ct a differen t interpretation, it is

equally clear that the Legislature agrees with this Court's interpretation.

other docume ntation adm issible in certain civil actions without live witness sponsorship or
amplification), overturning Shpigel v . White, 357 Md. 117, 741 A.2d 1205 (1999); 2000 Md.
Laws 152 (auth orizing certa in health care providers to withhold or withdra w treatme nt in
accordance with an emergency medical services "do not resuscitate o rder" unde r certain
circumstances), overturning Wright v. Johns Hopkins Hospital, 353 Md. 568, 728 A.2d 166
(1999); 20 01 Md . Laws 6 57 (requirin g in a criminal ca se in a circuit court that all changes
of the trial date be made for good cause shown), responding to Goldring v. State, 356 Md.
495, 740 A.2d 612 (2000) and State v. Brown, 355 Md. 89, 73 3 A.2d 1044 (1999).

DLLR, in addition to supporting the appellant's position as a substantive matter,

argues, relying on Green v . State, 367 M d. 61, 79 , 785 A .2d 127 5, 1285 (2001), that th is

Court "is not compelled to reaffirm Total Audio-Visual, as the rule of stare decisis is a

flexible rather than rigid rule under which cases may be overruled when they are wron gly

decided and contra ry to establish ed prin ciples." The purpose of stare decisis to insure that

people are guided in their personal and business dealings by prior court decisions, through

the established and fixed principles they announce, is not undermined, it submits, because

only DLLR's Board of Appeals would be affected by a decision overruling Total Audio-

Visual, the emplo yers not being chargeab le, pursuant to § 8-611 (e ) (4), for ben efits paid

under c ircums tances th ere, and here, inv olved. D LLR conclu des, in a ny event ,

"The doctrine of stare decisis sh ould yield and Total Audio-Visual should be
overruled because the Board's interpretation of the unemployment insurance
law is consistent with the language of the statute, its purpose and remedial
nature, a nd its leg islative h istory."

We do not disagree that the rule of stare decisis is flexible and requires that a balance

be struck b etwee n fixed and est ablishe d ruling s, for the sake of such rulings, and correct

rulings and princip les. Indeed, we have not hesitated in an appropriate case to strike that

balance. The most recent occasion, as DLLR rightly acknowledges, was in State v. Green,

367 Md. 61, 785 A.2d 1275 (2001). In that case, we overruled Cardinell v . State, 335 Md. 381,

644 A.2d 11 (199 4), which only a few years before had held for the first time tha t the State

had a common law right of appeal in criminal cases. In overruling that case, we were

sensitive to the stare decisis concerns, but recognized that the doctrine was not absolute.

Acknowledging that our prior decisions are not lightly to be set aside "`because it is

advisable and necessary that the law should be fixed and established as far as possible, and

the people guided in their personal and business dealings by established conclusions, not

subject to change because some other judge or judges think differently,'" Green, 367 Md. at

79, 785 A.2d at 1285 (quoting Townsend v. Bethlehem-Fairfield Shipyard, Inc., 186 Md.

406, 417, 47 A.2d 365, 370 (1946)), we reasoned:

"Nevertheless, the rule of stare decisis is not an absolute. The United States
Supreme Court has stated that "it is common w isdom that the rule of stare
decisis is not an 'inexorable comm and.'"Planned Parenthood v. Casey, 505
U.S. 833, 854, 112 S.Ct. 2791, 2808, 120 L.Ed.2d 674 (1992). This Court also
has recognized that "it is sometimes advisable to correct a decision or
decisions wrongly made in the first instance if it is found that the decision is
clearly wrong and contrary to other established principles." Townsend, 186
Md. at 417, 47 A .2d at 370; see also Hears t Corp. v. State Dep't of
Assessm ents & Taxation, 269 Md. 625, 643-44, 308 A.2d 679, 689 (1973)
("The doctrine of stare decisis, important as it is, is not to be construed as
preventing us from changing a rule of law if we are convinced that the rule has
become unsound in the circumstances of modern life." (quoting White v.
King, 244 Md. 34 8, 354, 223 A.2d 763, 767 (1966 )); Greenwood v.
Greenwood, 28 Md. 369, 381 (1868) ("Pre vious decisions of this cou rt should
not be disturbed ... unless it is plainly seen that glaring injustice has been done
or som e egreg ious blu nder co mmitte d.")."

On the other hand, consistent with the Legislature's awareness of our cases, we have

been reluctant to ov errule our p rior decisions where it is like ly that the Legisla ture, by its

inaction, indicates its adoption, or at least acceptance, of the interpretation reflected in the

opinion announcing the decision. T his principle w as well stated by Judge Eldridge in Jones

v. State, 362 Md. 331, 337-38, 765 A.2d 127, 130-31 (2001) (quoting Williams v . State, 292

Md. 20 1, 210, 438 A.2d 13 01, 1305 (1981)), in w hich he ob served fo r the Cour t:

"The Gen eral A ssem bly is p resu med to be awa re of this C ourt 's interpretation
of its enactments and, if such interp retation is not leg islatively overturn ed, to
have acquiesce d in that inter pretatio n. Harden v. Mass Transit Adm., 277 Md.
399, 406, 354 A.2d 81 7 (1976). T his presum ption is partic ular ly strong
whenever, after statuto ry language has been interpreted by this Court, the
Legislature re-enacts the statute without changing in substance the language
at issue. Harbor Island Marina v. Calvert Co., 286 M d. 303, 3 22-32 3, 407
A.2d 738 (1979); Director v. Cash, 269 Md. 331, 345, 305 A.2d 833 (1973)
cert. denied sub nom. Vucci v. Boslow, Director, Patuxent Institution, 414 U.S.
1136, 94 S.Ct. 881, 38 L .Ed.2d 762 (197 4); Macke Co. v. St. Dep't of Assess.
& Taxation, 264 Md. 121, 132-133, 285 A.2d 593 (1972); Stack v. Marney,
252 Md. 43, 49, 248 A.2d 880 (196 9). Unde r these circum stances, it is
particularly inappropriate to depart from the principle of stare decisis and
overrule our prior interpretation of the statute. White v. Prince George's Co.,
282 Md. 641, 657-6 58, 387 A.2d 2 60 (19 78). See also Flood v. Kuhn, 407
U.S. 25 8, 92 S .Ct. 209 9, 32 L .Ed.2d 728 (1 972).

To the sam e effec t, see, e.g., Shah v. How ard County, 337 Md. 248, 256, 653

A.2d 425, 429 (1995 ); Workers' Compensation Comm'n v. Driver and Parker,
336 Md. 10 5, 120, 647 A.2d 96 , 104 (199 4); Harris v. Sta te, 331 M d. 137,
152-153 n. 8, 626 A.2d 94 6, 953-954 n. 8 (19 93); Wadde ll v. Kirkpatrick, 331
Md. 52, 60, 626 A.2d 353, 357 (1993 ); United States v. Streidel, 329 Md. 533,
551 n. 12, 620 A.2d 905, 914-915 n. 12 (1993); Forbes v. State, 324 Md. 335,
342-3 43, 597 A.2d 4 27, 430 -431 (1 991)."

See also Baltimore City P olice v. Andrew, 318 Md. 3, 18-1 9, 566 A.2d 75 5, 762 (1989);

Frank v. Storer, 308 Md. 194 , 203-04, 517 A .2d 1098, 1102-0 3 (1986).

In the case sub judice, the parties and the amici curiae are concerned with the fairness

and equity of § 8-1 001, as in terpreted by the Total Audio-Visual Court. But, as we have

seen, the matter has twice been presented to the General Asse mbly for its correction. We

have recognize d that it is appro priate gene rally that the Leg islature balance the equity or

fairness of a particular statutory p rovision . Philip Electronics v. Wright, 348 Md. 209, 229,

703 A.2d 150, 159 (1997). That is particularly the case when, as here, the Legislature has

been accorded the opportunity to address the issue and has declined to do so. A ccor ding ly,

although not the exact situation addressed in Jones and Williams, we believe this case falls

under that rule and, so, we will decline the parties' invitation to overrule Total Audio-Visual.

The Legislature remains an available avenue for redress, indeed, perhaps the only one.

JUDGMENT A FFIRMED, WITH COSTS

IN THE COURT OF APPEALS OF MARYLAND

No. 116

September Term, 2001

PATR ICK M . PLEIN

DEPARTMENT OF LABOR, LICENSING

AND REGULATION

Bell, C. J.

Eldridge

Raker

Wilner

Cathell

Harrell

Battaglia,

JJ.

Dissenting opinion by Cathell, J. in which

Eldridge a nd Battag lia, JJ., join

Filed: June 12, 2002

Judges Cathell, Battaglia and Eldridge dissent for the reasons stated in Judge Cathell's

dissent in Total Audio-Visual Systems, Inc. v. Department of Labor, Licensing and

Regulation, 360 M d. 387, 7 58 A.2 d 124 ( 2000) .