How Modern Code Revision Began in Maryland

 

The impetus for undertaking a modern comprehensive revision of the code has been said to be the success of two bills that passed in the 1969 session that both substantively and nonsubstantively revised the laws on decedents' estates and guardianships.  Both of these projects were the results of the efforts of two prominent attorneys, Roger Redden and Shale Stiller, in persuading the legislature to pass the revision bills, one of which came out of the work of a special commission and the other from a committee of the Maryland State Bar Association. 

 

In 1970, Governor Marvin Mandel was convinced that there was a need to undertake a complete rewriting of the entire code to build on what had been accomplished by the revisions in the limited areas of estates, trusts, and guardianships the year before.  By simple letter – not even an executive order – the Governor, on July 16, 1970, created the commission to revise the Annotated Code, chaired by the then-President of the Senate, William S. James, and consisting of a number of prominent attorneys.  The late William H. Adkins, II, who later became a judge on the Court of Appeals, was the first director of the commission.

 

It was made clear at the outset of the commission's work that the revision to be undertaken was to be formal bulk revision, but not a substantive one.  The first Revisor's Manual, established to guide the effort, noted that effect of the law on any particular subject was not to be altered by the commission's work.  Early in its efforts, the commission resolved to adopt a topical, rather than an alphabetical, approach and to arrange the new code by article, title, subtitle, and section.  The titles would be consecutively numbered throughout the article, and the subtitles would be consecutively numbered throughout the title.  By using a multiple-significance dash system, the sections would show the title and subtitle to which they belonged.  For example, Section 5-410 would indicate that the section was in Title 5 of the article, under Subtitle 4 of the title, and in the tenth section in order under that subtitle.

 

Another function of the commission was to develop a Style Manual that would not only guide the revision of the Code but also would be used by the Department of Legislative Reference (now the Department of Legislative Services) in drafting all future statutes (that is, the legislative bills requested by the members of the General Assembly).  The Style Manual has itself been revised several times. In its first iteration, it consisted of 21 pages; the 1985 edition was composed of 101 pages.  The utilization of the Style Manual in legislative drafting, and not just in development of the revised articles that began in 1970, has meant that the newer laws passed by the legislature at the very least have better style and structure.

 

The initial plan called for the entire Annotated Code to be revised in five years, followed by a revision of the county codes of public local laws.  While the work got underway with enthusiasm, it became clear that the five-year plan was not only over-optimistic but absurd. As a result, it was recognized that a more formal staffing structure was needed to assist the commission to Revise the Annotated Code in accomplishing its objective and that a longer time frame was going to be needed.  To address these needs, the legislature, in 1972, created a Division of Statutory Revision within the Department of Legislative Reference, to be headed by a Revisor of Statutes.

 

Early on, the members of the commission devoted themselves to meetings at which they reviewed staff drafts with considerable give-and-take discussions. And, according to the late Judge Adkins, who had served both as the director of the Division of Statutory Revision and the Revisor of Statutes, the legislature spent over 21 hours in joint hearings in reviewing in "hideous detail" the provisions of the Courts and Judicial Proceedings Article alone, which was one of a trio of revised articles introduced and passed at a special session in the summer of 1973.

 

As time went on, however, interest began to wane.  The members of the commission had come to realize that the process of reviewing staff drafts (not to mention the process that had to be utilized by the staff creating those drafts) was tedious and time-consuming.  For each article, once its organization is decided upon, the staff prepares thousands of pages of material, showing each section or part of a section of current law (usually referred to as source law), a proposed revision of it, and a Revisor's Note indicating the changes made from the source law to the revised text and an explanation as to why the changes were made (but all in the context of a nonsubstantive approach).  The commission members reviewing staff drafts found themselves with the challenge of following why current law had been pulled apart and revised as separate provisions, occurrences that were usually the result of provisions of current law that contained more than one complete thought.

 

Revisor's notes also were used to explain why certain words or phrases may have been deleted.  The staff drafts would also include notes to the commission raising questions about ambiguities or inconsistencies in the current law that should be addressed in separate legislation passed by the legislature rather than by the revised article in the interest of eliminating the possibility of inadvertently making substantive changes to the source law. 

 

The code revision project imposed additional challenges to everyone involved in the process.  One of those was the difficult task of keeping track of all that was encompassed in the current law that was being revised so that none of it got lost in the cracks.  To accomplish this task required incredible concentration and diligence.  Each phrase or clause and, indeed, each word of revised material needed to be examined for both its intrinsic meaning and for its relationship to other words, phrases, and clauses that may have been added to the code at the same or at different times.  When the revision work uncovered conflicts between or among passages of the source law, those conflicts had to be noted, and the staff and the commission had to attempt to divine what the legislative intent was if, in fact, there was any ascertainable intent.