Langston v. Riffe

WILNER, Judge,

Dissenting.

Until October 1, 1995, Maryland law, as enunciated in Maryland Code, § 5-1038 of the Family Law Article, made clear that a declaration of paternity embodied in an order entered by a circuit court in a paternity case was final and that such a declaration could not later be modified or set aside on a motion filed pursuant to Maryland Rule 2-535(b). The declaration could be reviewed in a timely-filed direct appeal and, presumably, on a motion filed pursuant to Maryland Rule 2-534 or 2-535(a), but once 30 days elapsed without the noting of an appeal or the filing of a motion under one of those rules, the declaration of paternity became truly final and unreviewable. That was our holding in Tandra S. v. Tyrone W., 336 Md. 303 , 648 A.2d 439 (1994). Because of the wording of § 5-1038, the authority of a circuit court to revise its judgments under Maryland Rule 2-535(b) upon a showing of due dili *460 gence and either fraud, mistake, or irregularity did not apply to declarations of paternity, and thus, even if the person declared to be the father could later prove through blood or genetic testing that he was not, in fact, the father, the declaration was not subject to revision or abrogation.

The General Assembly decided to change that law, and thus enacted 1995 Md. Laws, ch. 248. The Act, as finally adopted, authorized the court to modify or set aside a declaration of paternity (1) in the manner and to the extent that any order of an equity court is subject to the revisory power of the court, or (2) if a blood or genetic test done in accordance with § 5-1029 of the Family Law Article established the exclusion of the individual named as the father in the paternity order. The one limitation imposed was that a declaration of paternity may not be modified or set aside if the individual named in the order acknowledged paternity knowing that he was not the father. The Act took effect October 1,1995.

The Legislature gave no indication in the 1995 amendment that it was to apply to orders or declarations of paternity already in effect. Ignoring that silence, the majority concludes that the Act is, indeed, retroactive and allows persons who, prior to October 1, 1995, either acknowledged paternity or were adjudicated as the father to relitigate that issue, presumably at any time in the future. It holds that the normal presumption against retroactive application of statutes is overcome because, in its view, (1) the Legislature intended that the Act be applied retroactively and (2) retroactive application is permissible because the Act is both procedural and remedial. I most respectfully disagree with those conclusions. There is no evidence that the Legislature intended ch. 248 to operate upon declarations of paternity that had become final prior to October 1, 1995; the Act is not procedural; and although it may be regarded as remedial with respect to the men who were the subject of paternity declarations entered prior to October 1, 1995, it significantly impacts upon important substantive rights of both the mothers and the children affected by those declarations.

*461 The established rule is that “legislative enactments are presumed to operate prospectively and are to be construed accordingly.” Granahan v. Prince George’s County, 326 Md. 346, 357 , 605 A.2d 91, 97 (1992). The reason for that presumption is that “retrospective application, which attempts to determine the legal significance of acts that occurred prior to the statute’s effective date, increases the potential for interference with persons’ substantive rights.” Id. (citing WSSC v. Riverdale Fire Co., 308 Md. 556, 561 , 520 A.2d 1319, 1322 (1987)). Accordingly, we have held that “[t]he presumption against retrospectivity is rebutted only where there are clear expressions in the statute to the contrary; and, even where permissible, retrospective application is not found except upon the plainest mandate in the legislation.” Granahan, supra, 326 Md. at 357 , 605 A.2d at 97 (emphasis added). See also WSSC, supra, 308 Md. at 568 , 520 A.2d at 1325 (“[U]nder the law of Maryland statutes ordinarily are construed to operate prospectively, absent a clear legislative intent to the contrary. Further, when the General Assembly intends a statute to have a retrospective application, it knows how to express that intent”).

The majority’s finding of legislative intent appears to be based on (1) its own view that the perceived injustice to putative fathers “could not be remedied by legislation with a strictly prospective effect,” and (2) some “generic evidence” of the Legislature’s intent gleaned from legislative history. The first basis articulated by the majority is simply wrong. Retroactive application is not necessary to remedy a perceived injustice. Nor is there anything in the legislative history that comes even close to establishing an intent by the General Assembly to make the 1995 amendment applicable to declarations that became final prior to the effective date of the Act.

In light of this Court’s clear pronouncements on what it takes to overcome the strong presumption against retroactive application—“clear expressions in the statute,” the “plainest mandate in the legislation”—it is impermissible even to root around for snippets in the bill files from which some weak inference of intent may be drawn. If the intent is not *462 unambiguously expressed in the statute, it may not be inferred. In searching through those files, however, the majority ignores what may be the most significant piece of evidence—the fiscal note prepared by the then-Department of Fiscal Services.

In the three years preceding the 1995 enactment, paternity case filings in the circuit courts had been averaging over 26,000 per year. 1 Even as far back as 1989-90, they had been averaging over 21,000 per year. If the 1995 amendment were retroactive, it could well apply to over a quarter million declarations, perhaps even as many as a half million. Child support enforcement actions showed at least equivalent numbers. The potential for men pursued for child support or women for a variety of other reasons to seek to relitigate the issue of paternity was enormous, indeed, overwhelming. The Department of Human Resources noted that the bill “would permit disgruntled fathers the opportunity to challenge paternity judgments in thousands of Maryland child support cases.” Yet the Department of Fiscal Services, relying on information supplied by the Administrative Office of the Courts, advised the General Assembly that “[wjhile this bill could result in an increase in reopened paternity cases, it is assumed that the additional workload can be absorbed within the budgeted resources of the judiciary.” If there was the slightest indication that the bill could be applied retroactively to the enormous inventory of cases closed prior to October 1, 1995, surely the Administrative Office of the Courts would have made note of that prospect and hedged its rosy fiscal advice.

In WSSC, supra, 308 Md. 556 , 520 A.2d 1319 , after confirming the general presumption against the retroactive application of statutes, we noted and confirmed what may be regarded as a converse, or at least a corollary, principle, emanating in Maryland largely from Janda v. General Motors Corp., 237 Md. 161 , 205 A.2d 228 (1964), that a statute governing procedure or remedy will be applied to “cases pending when the *463 statute becomes effective.” WSSC, supra, 308 Md. at 564 , 520 A.2d at 1322 . The majority attempts to sustain the retroactive application of ch. 248 on those twin grounds—that it is both procedural and remedial—overlooking, of course, that the declarations it seeks to apply the statute to were not “pending” when the statute took effect, but had already become final.

The Act is clearly not procedural in nature. It neither creates nor alters any procedure for establishing or adjudicating paternity. The procedure after October 1, 1995 is precisely what it was before that date—a paternity action filed and litigated under §§ 5-1010 through 5-1044 of the Family Law Article. All that the 1995 amendment effectively does is to permit a man declared to be the father of a particular child or children to petition to reopen that declaration following a blood or genetic test that excludes him as the father. It is a substantive right that did not previously exist. Under our holding in Tandra S. v. Tyrone W., supra, 336 Md. 303 , 648 A.2d 439 , once the declaration became final, in the sense that it was no longer subject to review on appeal or pursuant to a timely filed motion under Rule 2-534 or 2-535(a), the finding of paternity was immune from relitigation. Chapter 248 afforded men the right, under limited circumstances, to reliti-gate that determination. It gave them a cause of action, even though in the same case, that previously did not exist. That is not, in my view, merely procedural.

Nor is the 1995 Act solely remedial in nature. Chief Judge Bell notes quite well the substantive aspects of the legislation. It permits the court, on the basis of evidence that, in most instances, could have been obtained earlier, to undo a legal relationship and with it, often, an emotional one as well. That was the policy choice that the Legislature made and had the right to make, but to suggest that there is no substantive aspect to the amendment is to ignore the reality of its effect. I fully understand the view expressed by the dissenting judges in Tandra S., which obviously was persuasive to the Legislature, and I make no comment, one way or the other, on the merits of that view from the perspective of social policy. *464 Whether good policy or bad, the fact is that the accomplishment of its objective necessarily leaves children legally fatherless, sometimes emotionally fatherless, without an existing order of paternal support, and without an ability to inherit from a man previously adjudicated to be the child’s father. It abrogates, as well, the support flowing to the mother or other custodian of the child. The hope that, some day, the “true” father may be discovered and substituted—the likelihood of which, I suspect, is largely remote—does not diminish the immediate substantive effect of setting aside an established paternity declaration.

For these reasons, I would hold that the 1995 amendment is not retroactive and does not apply to declarations of paternity that were final prior to October 1, 1995. I would reverse the judgment of the Court of Special Appeals in No. 136 and affirm the judgments of the Circuit Court for Baltimore City in Nos. 117 and 137.

Judge RODOWSKY has authorized me to state that he joins in this dissenting opinion.

. See Annual Report of the Maryland Judiciary (1994-95) CC-8 at 47; (1993-94) CC-8 at 47; (1992-93) CC-8 at 55.