OFFICE OF the PUBLIC DEFENDER, et al. v. STATE of Maryland.
No. 9 Sept.Term, 2009.
Court of Appeals of Maryland.
April 16, 2010.
993 A.2d 55
The “totality of the circumstances” analysis should also focus upon the impact of the contumacious conduct. If Appellant had contumaciously walked out of a courtroom while representing a party in a civil case, the trial court would not have been prohibited from continuing the trial. In the case at bar, however, Appellant contumaciously walked out of the courtroom while representing a criminal defendant who had a constitutional right to be represented by counsel. Under these circumstances, if we do not direct that the Circuit Court dismiss this appeal, we should certainly affirm the judgment of the Circuit Court on the ground that the record shows beyond any doubt that (in the words of the Circuit Court) “[Appellant‘s] words and actions occurred in the courtroom in the trial judge‘s presence and constituted a direct criminal contempt[.]”
Judges BATTAGLIA and BARBERA have authorized me to state that they join this dissenting opinion.
Peter F. Rose. Gen. Counsel (Nancy S. Forster, Public Defender, Baltimore, MD), on brief for Appellants.
Andrew H. Baida (Caroline L. Hecker of Rosenberg, Martin, Greenberg, LLP, Baltimore, MD), on brief for Appellees.
HARRELL, J.
In the present case, we must determine whether a Maryland trial court possesses the authority, statutory or otherwise, to appoint an attorney from a local Office of the State Public Defender (“OPD“) to represent a criminal defendant who qualifies for public representation based on indigency, as defined by the
FACTS
Jason Flynn Stinnett was indicted by a grand jury in Cecil County on multiple burglary charges and other related offenses. Stinnett applied timely for public legal representation from the local OPD. On 19 March 2008, the local OPD determined that Stinnett failed to meet the requirements for
On 7 April 2008, Stinnett appeared, unrepresented by counsel, at a status hearing before the Circuit Court and requested that an attorney be appointed for him because he could not afford to retain private counsel and the local OPD had denied representation. Upon Stinnett‘s request, the trial judge proceeded (at some length) to describe his perception of the relative roles of the local OPD and the court in providing counsel for indigent defendants, and the authority of the court to appoint counsel on an indigent defendant‘s behalf where the local OPD denies representation:
Our Chief Administrative Judge here ... has indicated that he has researched this matter and has determined that case law does not seem to indicate that we cannot appoint the Public Defender‘s ourselves and has ask (sic) us, other judges, from now on that if we do find indigency to actually appoint the Public Defender. He said he‘s reviewed the cases and there is some dicta about their being Executive Agency, but he does not believe that‘s controlling because the issues before the Appellate Court, at that time, were not those that dealt with the authority of the Court to appoint the Public Defender‘s Office to represent somebody. I just checked with ... the Acting Administrative Judge, and he says exactly the same thing. That, if we do find a defendant indigent, we are to appoint the Public Defender‘s Office itself to represent the defendant. And the Court has done a lot of investigation on this, previously, personally talked with Judge Bell, this Court had ordered ... or requested the Court Clerks to research this issue about 5
years ago and we had researched 42 other states, we hadn‘t quite got all 50, and every single one, the Court always has the authority, at least as a last resort to appoint the Public Defender. In speaking with Judge Bell, Judge Bell told me, personally, on the telephone that he had researched all 50 states and all 50 ... Maryland would be the only one that, it didn‘t seem to him, that we had a direct authority to appoint the Public Defender. But, he didn‘t say that prohibited it, either. Anyway, I‘m following the Administrative Judges (sic) and the Acting Administrative Judges (sic) decisions that we are to appoint the Public Defender if we do find indigency.
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The next thing, under Article 27A, Section 7,5 it‘s the Public Defender article. It talks about the duty of the Public Defender‘s Office. Um ... to provide representation and it follows the case, I believe, of State v. Baldwin,6 if I‘m remembering this correctly.
Anyway, as a result of the case, the case spelled out what the Public Defender‘s Office has to do in determining whether a defendant qualifies for the Public Defender‘s services. It also states, basically, that the Court has to do the same thing when it makes it‘s (sic) own determination. Although, it does make a separate, independent determination. And the Court certainly will do that. But what happened after Article 27A, Section 1 et sec. (sic) was passed, evidently the Public Defender‘s Office then went and got a regulation passed which was actually contrary to the ... Art. 27A, Sec. 1 and thereafter. In that it used a formula which is not at all what Baldwin v. State says or State v. Baldwin. You have to figure each case separately
and then there is supposedly the District Public Defender then can review some ... a determination made by the local Public Defender‘s Office, but that certainly is not presented to any defendant and the determination factor is 110% of the Federal Poverty guidelines for Circuit Court cases. There‘s absolutely nothing in the underlying case which provided for those factors to be used.
Following this explication, the court proceeded to conduct an indigency hearing, examining the factors to be considered in determining indigency contained in
Turning to examine the specifics of Stinnett‘s financial situation, in response to the court‘s questioning, Stinnett testified that: (1) he was employed with Mid-Atlantic Electrical Contractors, a job which paid him $19 per hour (resulting in a net take-home income of approximately $2123 per month), without any opportunity for overtime; (2) he had approximately $400 in a bank account and no other assets that could be liquidated to pay for an attorney; (3) at the time of the hearing, he resided in a halfway house, paying $650 per month in boarding costs and $65 per month for food; (4) he had been ordered by the Circuit Court for Harford County to pay $331 per month in restitution arising from a prior robbery conviction; (5) he paid the entirety of his daughter‘s private school tuition, at a cost of $440 per month; (6) he spent approximately $108 per month to purchase lunch; and, (7) he paid $520 per month for transportation operating costs to and from work in a vehicle loaned to him by his father. In addition, based on standard child support calculations, the Circuit Court determined that Stinnett‘s expenses relating to the shared custody of his daughter amounted to $420 per month.
Totaling Stinnett‘s income and expenses, each aspect of which it found to be “fair and reasonable,” the Circuit Court determined that Stinnett had, in fact, no net income; Stinnett‘s net income of $2123 per month fell well below the $2534 in expenses he incurred each month. In addition, the Circuit Court found that the reasonable cost for a private attorney to represent Stinnett would be between $3000 and $5000. On this basis, the judge determined that, despite the local OPD‘s conclusion to the contrary, Stinnett, in fact, was indigent under the factors enumerated in
At a later hearing in Stinnett‘s case, held on 8 August 2008, Northrop did not appear. As a result, the trial judge found him in direct contempt of court and fined him $10.00. Subsequent to the contempt finding against Northrop, Stinnett entered a guilty plea, which the Circuit Court accepted, and was sentenced to a three-year term of imprisonment, suspended, and two years unsupervised probation. Stinnett did not
- (1) Did the trial court err in ordering Public Defender staff attorney/s to represent a criminal defendant in a criminal case after the Public Defender declined to provide representation in the case; and
- (2) Did the trial court err in finding Mr. Northrop in contempt?
We granted Northrop‘s petition for writ of certiorari, 407 Md. 275, 964 A.2d 675 (2009), prior to further proceedings in the intermediate appellate court.
MOOTNESS
As a threshold matter, the State contends that the present case is moot, noting that Stinnett was convicted and sentenced, but did not appeal. We disagree.
Ordinarily, in order for a case to be heard and an appellate court to provide a remedy, there must be an existing controversy. Suter v. Stuckey, 402 Md. 211, 219, 935 A.2d 731, 736 (2007); Dep‘t of Human Res., Child Care Admin. v. Roth, 398 Md. 137, 143, 919 A.2d 1217, 1221 (2007); Attorney Gen. v. Anne Arundel County School Bus Contractors Ass‘n, 286 Md. 324, 327, 407 A.2d 749, 752 (1979). If no existing controversy is present, the case is moot and an appellate court ordinarily will not consider the case on its merits. Suter, 402 Md. at 219-20, 935 A.2d at 736; Roth, 398 Md. at 143, 919 A.2d at 1221; State v. Peterson, 315 Md. 73, 82, 553 A.2d 672, 677 (1989); Mercy Hosp. v. Jackson, 306 Md. 556, 562, 510 A.2d 562, 565 (1986); State v. Ficker, 266 Md. 500, 506-07, 295 A.2d 231, 235 (1972).
Although it is true, as the State contends, that the criminal proceedings against Stinnett (which, in turn, led to the contempt finding against Northrop) have concluded with a final judgment from which no appeal has been taken, the issue at
In addition, even where a case may be moot technically, there exist a number of exceptions to the general rule that the appeal must be dismissed. For example, where a case, while technically moot, presents a recurring matter of public concern which, unless decided, will continue to evade review, we nonetheless have considered the case on its merits. In re Julianna B., 407 Md. 657, 665-66, 967 A.2d 776, 780-81 (2009); Suter, 402 Md. at 220, 935 A.2d at 736; Arrington v. Dep‘t of Human Res., 402 Md. 79, 91-92, 935 A.2d 432, 439-40 (2007); Coburn v. Coburn, 342 Md. 244, 250, 674 A.2d 951, 954 (1996); Anne Arundel County School Bus Contractors Ass‘n, 286 Md. at 328, 407 A.2d at 752; Lloyd v. Supervisors of Elections, 206 Md. 36, 43, 111 A.2d 379, 381-82 (1954). It is clear that the question of a trial court‘s authority to appoint counsel, including an attorney from the local OPD, for an indigent individual, and the relation of that authority to OPD‘s power to determine eligibility for representation by its attorneys in the first instance, are matters of public concern. As noted by the Circuit Court, these questions are impacting presently numer-
THE APPOINTMENT OF NORTHROP
At the outset, it is clear to this Court, as it was to the Circuit Court in the proceedings below, that the local OPD denied erroneously representation to Stinnett.11 As noted supra,
(a) Determination of eligibility for services.—Eligibility for the services of the Office of the Public Defender shall be determined on the basis of need of the person seeking legal representation. Need shall be measured according to the financial ability of the person to engage and compensate competent private counsel and to provide all other necessary expenses of representation. Such ability shall be recognized to be a variable depending on the nature, extent and liquidity of assets; the disposable net income of the defendant; the nature of the offense; the effort and skill required to gather pertinent information; the length and complexity of the proceedings; and any other foreseeable expenses.
A. Pursuant to
Article 27A, § 7 , Annotated Code of Maryland, eligibility for services of the Office of the Public Defender shall be determined on the basis of need of the individual seeking legal representation. Need may be measured according to the applicant‘s maximum annual net income level and asset ceiling. In cases where good cause is shown, need may be measured by the financial ability of the applicant to engage and compensate competent private counsel and to provide all other necessary expenses of representation. This ability shall be recognized to be a variable depending on:(1) The nature, extent, and liquidity of assets;
(2) The disposable net income of the defendant;
(3) The nature of the offense;
(4) The effort and skill required to gather pertinent information;
(5) The length and complexity of the proceedings; and
(6) Any other foreseeable expenses.
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D. Maximum Income Level.
(1) Except as provided in § D(3) of this regulation, the maximum net annual income level for persons accepted for representation in District Court cases, violation of probation, and contempt proceedings may not exceed 100 percent of the current official federal poverty income guidelines as found in § 673(2) of OBRA-1981 (42 U.S.C. § 9902(2)).
(2) Except as provided in § D(3) of this regulation, the maximum net annual income level for persons accepted for representation in all other cases may not exceed 110 percent of the current official federal poverty income guidelines as found in § 673(2) of OBRA-1981 (42 U.S.C. § 9902(2)).
(3) In cases where good cause is shown, a district public defender or division chief may exempt an applicant from the maximum income level requirement upon due consid-
eration of factors enumerated in Regulation .05 of this chapter.
Pursuant to Article 27A, § 7, Annotated Code of Maryland, eligibility for services of the Office of the Public Defender shall be determined on the basis of need of the individual seeking legal representation. Need may be measured according to the applicant‘s maximum annual net income level and asset ceiling. In cases where good cause is shown, need may be measured by the financial ability of the applicant to engage and compensate competent private counsel and to provide all other necessary expenses of representation. This ability shall be recognized to be a variable depending on [the six factors enumerated above].
See id. at 475 (emphasis added). Apparently, the OPD undertook these changes to the regulation on advice of the Attorney General. See 79 Op. Atty Gen. 354 (1994). Previously, the OPD utilized an internal manual to assess an applicant‘s eligibility for representation which contained a grid, arranged by income levels and number of dependents. Id. at 355. An applicant “with income in excess of the amount allocated for a particular number of dependents w[ould] be denied representation.” Id. The OPD was concerned that, if the public had access to these eligibility criteria, applicants might tailor their applications to meet the requirements. Id. at 356. Nevertheless, the Attorney General opined that, in order to be used by the OPD, the eligibility criteria based on net income and number of dependents, by virtue of its nature as a “regulation,” needed to be adopted under the formal rulemaking procedures of the Administrative Procedures Act and included in COMAR. Id. at 361.
Section .02B, also added by the OPD as part of the 1995 amendments, further defined the self-perceived role of the OPD in making eligibility determinations, providing that:
“[t]hese regulations are designed to ensure that client eligibility will be determined according to criteria that give preference to the legal needs of those least able to obtain legal assistance and afford sufficient latitude for the Office to consider local circumstances and its resource limitations.”
See 22 Md Reg. 474-75 (March 17, 1995); 21 Md. Reg. 1896 (October 28, 1994). It should be noted that such language is inconsistent with certain language in Baldwin, in which the Court of Special Appeals stated:
Finally, it goes without saying that reductions in the Public Defender‘s budget and his desire to be frugal have no relevance whatever in the matter. The question is whether appellant was indigent, not the Public Defender. The court‘s obligation was to uphold the Constitution in the manner directed by the statute and by Maryland Rule 723, and that obligation is not subject to or in any way dependent upon the level of appropriations received by the Public Defender.
Baldwin, 51 Md.App. at 555, 444 A.2d at 1069 (emphasis in original). In addition, it is worth noting that consideration of the OPD‘s resources and maximum net income levels of applicants is not provided for by
Stinnett‘s testimony before the Circuit Court regarding his inability to afford private counsel demonstrated clearly that, under a proper evaluation of the indigency factors listed in
After concluding properly that Stinnett, in fact, was indigent under
We previously addressed the statutory division of labor between the courts and the local OPD, with regard to assuring legal representation to indigent individuals, in Thompson v. State, 284 Md. 113, 394 A.2d 1190 (1978). In Thompson, the OPD determined, at an initial proceeding, that the defendant was “technically” eligible for representation, although it noted to the trial court that, despite having no income, the defendant managed to post $750 for a surety bond. Id. at 127, 394 A.2d at 1197. Two weeks later, at a subsequent hearing, the defendant requested that the court appoint counsel to represent him, having failed to acquire private representation on his own. Id. at 127-28, 394 A.2d at 1197. At that hearing, the OPD maintained to the court that it determined at its initial interview with the defendant that, in fact, he did not qualify for representation and that it informed the defendant that it would not represent him. Id. at 128, 394 A.2d at 1197. Apparently, the OPD “wanted to leave it up to the court, making clear that if the court so ordered [it] would provide representation.” Id. Rather than make an independent determination of the defendant‘s alleged indigency, the trial court accepted in full the OPD‘s conclusion that the defendant was not entitled to have representation provided, stating that “you tell me he is not eligible and that is good enough for me.” Id. at 130, 394 A.2d at 1198.
We reversed the trial court, holding that it erred by failing to determine independently whether to appoint counsel under
Four years after our decision in Thompson, the Court of Special Appeals, in Baldwin, observed, also in dicta, that Thompson “seemed to hold that if the Public Defender declines to represent a defendant—even on grounds of non-eligibility (as opposed to a potential conflict of interest)—the court has no authority to order him to provide representation.” Baldwin, 51 Md.App. at 552, 444 A.2d at 1067. In a footnote, the intermediate appellate court conjectured further that “[i]t would appear from [the language of Thompson], by logical extension, that, although the court may appoint any other qualified counsel to represent an indigent defendant, it may not appoint the Public Defender against his wish.” Id. at
In the present appeal, the OPD and the Dissent rely heavily on the above quoted language, and other dicta in Thompson and Baldwin,15 to support their contentions that, where the OPD declines representation, a reviewing court is powerless to correct a manifest error in the local OPD‘s determination of eligibility by appointing the local OPD as counsel for the indigent defendant.16 Such dicta is wholly unpersuasive, particularly in light of the statutory scheme designed by the General Assembly to govern the respective responsibilities of the OPD and the courts in determining whether a criminal defendant qualifies as indigent and whether such individual is entitled to representation paid for by the taxpayers.
Authority of courts to appoint counsel in certain situations.—Nothing in this article shall be construed to deprive any court mentioned in § 4(b)(2) of this article of its authority to appoint an attorney to represent an indigent person where there is a conflict in legal representation in a matter involving multiple defendants and one of the defendants is represented by or through the Office of the Public Defender, or where the Office of the Public Defender declines to provide representation to an indigent person entitled to representation under this article.
Of utmost importance to the present case,
As opposed to the contentions put forth by the OPD in its appeal, we hold that, in accordance with the provisions of
Though by no means a perfect analogy to the situation here, such a procedure is somewhat analogous to legislatively-sanctioned judicial review of decisions made by an administrative agency. Where an administrative agency acts contrary to law by ignoring its statutory mandate and instead relies solely on a self-initiated regulation that does not comply with its enabling statute, a court has the power to order the agency to comply with its statutory mandate. See Harvey v. Marshall, 389 Md. 243, 302, 884 A.2d 1171, 1207 (2005) (“An agency decision, for example, may be deemed ‘arbitrary or capricious’
In the present case, where the local OPD disregards the statutorily-mandated criteria for determining indigency provided by
THE ORDER OF CONTEMPT
Although we hold that the Circuit Court acted within its authority when it appointed Northrop to represent Stinnett, we nevertheless reverse the Circuit Court‘s order finding Northrop in direct contempt for refusing to appear as Stinnett‘s counsel. We do so on the ground that the order was entered improperly according to
JUDGMENT OF THE CIRCUIT COURT FOR CECIL COUNTY REVERSED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO VACATE JUDGMENT OF CONTEMPT ENTERED AGAINST JOHN K. NORTHROP; COSTS TO BE PAID BY THE STATE.
BELL, C.J., files a dissenting and concurring opinion in which BATTAGLIA and GREENE, JJ., join.
Dissenting and Concurring Opinion by BELL, Chief Judge, which BATTAGLIA and GREENE, JJ., join.
I. Background
In the underlying criminal prosecution, out of which this appeal has emanated, a grand jury of the Circuit Court for Cecil County indicted Jason Flynn Stinnett (“Stinnett“), charging him with two counts of Burglary in the First Degree, one count of Burglary in the Second Degree/General, two counts of Fourth Degree Burglary, four counts of Theft under $500, and two counts of Malicious Destruction under $500. As
Subsequent to that decision by the OPD, and apparently dissatisfied with the OPD‘s eligibility determination, the trial court conducted an indigency hearing to determine for itself whether Stinnett was indigent and thus qualified for appointed counsel.1 Focused on the factors enumerated in
Based on the indigency hearing, “and considering and applying the factors of
“Recent conversation with their subsequent county attorney indicates that there is no change in that position, i.e., they will not pay anything in attorney compensation. The local bar association also indicated that its members were not willing to ‘volunteer’ their services in criminal cases.” 6
During a period of severe budgetary constraints, much like those facing our State today, an opinion addressing the question, “how private counsel are to be paid when courts begin to appoint counsel in cases that previously would have been assigned to a panel attorney” was sought from the Office of the Attorney General of the State of Maryland.
In a memorandum dated October 4, 1991, addressed to the administrative judges of the courts authorized by the Public Defender Statute to appoint counsel upon the OPD‘s failure or refusal to do so, the author of this opinion utilized this AG Opinion and the statutory basis underlying it,
Under
Northrop did not appear at the status hearing in the Stinnett case. As a result, Judge Lidums found Northrop in direct contempt of court and fined him $10.00. He explained:
“The appeal is pending and Mr. Northrop did tell me that he would not be here and he said that he anticipated that there would be a finding of contempt, by virtue of his failure to be here . . . He is not present. He is, therefore found to be in direct Contempt of Court. He‘s in proceedings and the Court imposes, as punishment, a fine of $10.00.”
Judge Lidums then filed an Order of Contempt, which he handwrote, as follows:
County Commissioners v. Melvin, 89 Md. 37, 42 A. 910 (1899). Because the defendants are indigent, and therefore cannot be assessed costs, the appropriate county (or Baltimore City) will have to be billed for the attorney‘s fees. See
Article 1 § 14 .Section 2-102(c) of the Courts and Judicial Proceedings Article has been interpreted by the Attorney General as follows:“Obviously, an indigent defendant, by definition, could not pay these costs even if the court chose to tax them. See
Rule 4-353 . Thus, as a practical matter, the fee for counsel appointed to represent an indigent defendant would be payable by the county whose State‘s Attorney brings the prosecution.”
1991 Md. AG LEXIS 54, at *8-9 . See also County Commissioners v. Melvin, 89 Md. 37, 42 A. 910 (1899).The court, of course, retains its inherent authority to appoint another attorney as a special officer if, in its judgment, the attorney is qualified for the appointment. If another attorney is appointed, a request for reimbursement should also be made to the county (or Baltimore City).
The Attorney General‘s opinion, to be sure, also acknowledges that lawyers are officers of the court and “in the absence of a reasonable excuse, bound to perform the duty assigned him.”
1991 Md. AG LEXIS 54, at *7 (quoting, Worcester County v. Melvin, 89 Md. 37, 40, 42 A. 910 (1899)). Thus, despite constitutional concerns, it concluded that the majority view is “a lawyer has no constitutional right to refuse an uncompensated appointment.” Id., at *9-10. In re Spann, 183 N.J.Super. 62, 443 A.2d 239 (App.Div.1982). In times of economic hardship, when the county lacks the funds to provide compensation, therefore, it is believed “appointed counsel will have to serve without fee.” Id., at *9. This, however, is not the issue in this case.
“By prior Order of Court, John K. Northr[o]p, Public Defender was appointed to represent Defendant; Northrop failed to appear at status conference on 8-8-08, after being notified.
“Court finds direct contempt; fine of $10.00 imposed.”
Subsequently, Stinnett entered a guilty plea to the first degree burglary count, which the court accepted, and was sentenced to a three-year suspended sentence of imprisonment and two years unsupervised probation. Stinnett did not appeal the judgment thus entered. On the other hand, Northrop noted an appeal of the August 8, 2008 Order finding him in direct contempt to the Court of Special Appeals. He also filed with this Court, a petition for Writ of Certiorari, in which he raised two questions:
“(1) Did the Trial Court err in ordering public defendant staff attorney/s to represent a criminal defendant in a criminal case after the public defender declined to provide representation in the case; and (2) Did the trial court err in finding petitioner in contempt?”
This Court granted his petition prior to proceedings in the intermediate appellate court. Public Defender v. State, 407 Md. 275, 964 A.2d 675 (2009).
II. Legal Analysis
A. Mootness
The State is correct. The underlying case from which today‘s issue arises has been finally adjudicated. For the reasons articulated by the majority, however, this Court is not precluded from considering this case on its merits. This case presents an exception to the general rule governing mootness. In particular, the issue promises to be a recurring matter of public concern, which, unless decided, will continue to evade review. See generally In re Julianna B., 407 Md. 657, 665-66, 967 A.2d 776, 781 (2009); Suter v. Stuckey, 402 Md. 211, 220, 935 A.2d 731, 736 (2007); Arrington v. Dep‘t of Human Res., 402 Md. 79, 91, 935 A.2d 432, 439-40 (2007); Coburn v. Coburn, 342 Md. 244, 250, 674 A.2d 951, 954 (1996) (“This
B. The Appointment
This Court often is required to consider matters that are riddled with complexity, the result of which, although consistent with the law, members of this Court would not prefer. In those situations, the Court cannot, and should not, avoid its responsibility to ensure that the questions are resolved in full accordance with the law. It may not, therefore, adopt simple solutions that do not enjoy legal support, or stretch logic to the breaking point, for the sake of reaching a preferred resolution. Sadly, that is precisely what the majority does today.
This case presents the question of the “division of labor between the courts and the local OPD, with regard to assuring legal representation to indigent individuals.” Office of the Public Defender v. State, 413 Md. 411, 429, 993 A.2d 55, 66
“the Circuit Court for Cecil County did not exceed its authority when it appointed John K. Northrop (‘Northrop‘), the Deputy District Public Defender for Cecil County, or a member of his office or a panel attorney, to represent Jason Flynn Stinnett (‘Stinnett‘), a criminal defendant whom the Circuit Court found qualified as indigent under the Maryland Code, but to whom representation had been denied previously and wrongfully by the local OPD.”
OPD v. State, 413 Md. at 415, 993 A.2d at 57. This holding is contrary to the statutory language governing the OPD, namely
1. Applicable Caselaw
The Court previously has addressed the juxtaposition of appointment responsibility between the OPD and the State‘s trial courts in Thompson v. State, 284 Md. 113, 394 A.2d 1190 (1978). Accordingly, and indeed, Thompson and its progeny control the result of this case.
In Thompson, the defendant had been convicted in the District Court of Maryland, sitting in Montgomery County, of shoplifting and assault and battery. 284 Md. at 114, 394 A.2d at 1191. He appealed that conviction to the Circuit Court for Montgomery County. Although represented by the OPD in the District Court, he posted bond pending appeal and appeared without counsel in the Circuit Court. Id. at 116, 394
Although there were three issues presented in Thompson, the dispositive one, namely, “[d]id the trial court err in not fully complying with the mandate of Rule 723 of the Maryland Rules of Procedure by not properly advising Thompson of his rights and obligations as contained therein?,”7 id. at 114, 394 A.2d at 1191, related to the advice required by
“Appearance Without Counsel. When a defendant appears pursuant to section a of this Rule and is not represented by counsel, the court shall:
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“2. Advise the defendant that he has a right to be represented by counsel at every stage of the proceedings;
“3. Advise the defendant of the matters required by subsections 1, 2 and 3 of section c of this Rule;
“4. Advise the defendant who desires counsel that he must retain the services of counsel and have counsel enter an appearance for him within 15 days;
“5. Advise the defendant that if he finds he is financially unable to retain the service of private counsel, he should apply to the Public Defender as soon as possible for a determination of his eligibility to have counsel provided for him by the Public Defender;
“6. Advise the defendant that if the Public Defender declines to provide representation, the defendant should immediately notify the clerk of the court so that the court can determine whether it should appoint counsel pursuant to Article 27A, section 6(f), of the Maryland Code;
“7. Advise the defendant that if counsel does not enter an appearance within 15 days, a plea of not guilty will be entered pursuant to section b 3 of Rule 731 (Pleas), and the defendant‘s case will be scheduled for trial. The court shall also advise the defendant that if he appears for trial without counsel, the court could determine that he has waived his right to counsel by neglecting or refusing to retain counsel or to make timely application to the Public Defender for counsel, and in the event, the case would proceed with defendant unrepresented by counsel.”
As to
“The inquiry required to be made and the test to be met under § c before the court may accept a waiver of counsel applies not only to a defendant‘s appearance pursuant to § a but also to any proceeding at which he appears without counsel thereafter. In such event, the court is prohibited from proceeding before determining whether the defendant at that time desires to waive counsel or has waived counsel. § d 2. By § e, there must be a record of compliance with respect to §§ b, c and d.” (footnotes omitted).
Id. at 126, 394 A.2d at 1196, citing
“4. That if the defendant is found to be financially unable to retain private counsel, the Public Defender or the court would, if the defendant wishes, provide counsel to represent him.”
“there is the clear duty imposed on the court, in order to decide whether it should appoint counsel, upon the Public Defender declining to do so, to make its own independent determination whether a defendant is indigent and otherwise eligible to have counsel provided. It could not properly fulfill this duty without considering facts material and relevant to the issue.”
284 Md. at 129, 394 A.2d at 1198.
In Thompson, more than merely acknowledging that both the OPD and the courts have a responsibility to ensure that indigent defendants are afforded representation, this Court recognized, even if it did not state it expressly, that the responsibility was a separate responsibility, its discharge entrusted fully to the OPD and the court, as required, and that the responsibility, or its discharge, of one neither infringed nor superseded the responsibility or discharge of the other. So it was that the Court observed and instructed:
the defendant; the nature of the offense; the effort and skill required to gather pertinent information; the length and complexity of the proceedings; and any other foreseeable expenses.
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“(b) The Office of the Public Defender shall make such investigation of the financial status of each defendant at such time or times as the circumstances shall warrant, and in connection therewith the office shall have the authority to require a defendant to execute and deliver such written requests or authorizations as may be necessary under applicable law to provide the office with access to records of public or private sources, otherwise confidential, as may be needed to evaluate eligibility. The office is authorized to obtain information from any public record office of the State or of any subdivision or agency thereof upon request and without payment of any fees ordinarily required by law.”
“The Public Defender wanted to leave it up to the court, making clear that if the court so ordered he would provide representation. The court refused to so order, properly we believe, on the ground that the question whether the Public Defender represented a particular defendant was for the Public Defender and not for the court.”
Id. at 128, 394 A.2d at 1197. That also was the message being conveyed by this Court‘s discussion of the trial court‘s approach to the defendant‘s right to representation15:
“The record before us does not show what investigation was made by the Office of the Public Defender and all that was considered by it with respect to Thompson‘s eligibility vel non. It seems, however, that the primary reason for declining to represent him was that a surety bond had been posted for him. As we have seen, the Public Defender raised this specter at the first hearing on 10 February 1978 when he mentioned the bond after stating that Thompson was ‘technically’ eligible for the services of the Public Defender. Whereupon, Thompson flatly declared that the Public Defender had told him that ‘if I had somebody to post the money out on bond, I should get my own lawyer. That‘s what he told me.’ The judge then presiding expressly did not dispute that the Public Defender had so stated. Assistant State‘s Attorney Dean represented to the court at the hearing on 19 April that ‘[t]he amount of the bond that [Thompson] made indicated to the Public Defender‘s Office that he wasn‘t really as indigent as expected, whereas he represented.’ The judge originally in the case was completely content with the Public Defender‘s conclusion, whatever it may have been based upon, that Thompson was not entitled to have representation provided-‘you tell me he is not eligible and that is good enough for me.’ This view governed the court‘s action in the face of an utter lack of the
data contemplated by art. 27A, § 7 , the absence of any expression by the Office of the Public Defender of the reasons why it declined to provide representation, and the fact that the Public Defender had represented Thompson in the District Court.... The judge made no attempt to determine whether the refusal of the Office of the Public Defender to provide representation was despite Thompson‘s eligibility to have counsel provided. Neither judge thereafter involved in the case took any steps to determine whether Thompson was in fact an indigent person entitled to representation. The court was obligated to make that determination in the circumstances. As we have indicated, if Thompson were indigent and otherwise entitled to assistance of counsel, the law, implemented by statute and our rules of procedure, required the court to appoint an attorney when the Office of the Public Defender declined to provide counsel. The failure of the court to determine whether Thompson was eligible to have counsel provided was reversible error.” (footnotes omitted).
284 Md. at 129-30, 394 A.2d at 1198-99.
The message was received.16 See Maus v. State, 311 Md. 85, 114 n. 16, 532 A.2d 1066, 1080 n. 16 (1987); Howell v. State, 293 Md. 232, 242, 443 A.2d 103, 108 (1982); Davis v. State, 100 Md.App. 369, 380-81, 641 A.2d 941, 947 (1994); Baldwin v. State, 51 Md.App. 538, 552-553, 444 A.2d 1058, 1067-68 (1982). See also Miller v. Smith, Attorney General of State, 115 F.3d 1136, 1142 (4th Cir.1997). In Baldwin, Judge Alan Wilner, for the Court of Special Appeals, explicating Thompson, stated expressly:
“In Thompson v. State, 284 Md. 113, 394 A.2d 1190 (1978), the Court of Appeals seemed to hold that if the Public Defender declines to represent a defendant—even on grounds of non-eligibility (as opposed to a potential conflict of interest)—the court has no authority to order him to provide representation. Upon that premise, the question before us is not whether the Public Defender erred in declining representation but whether the court was derelict in discharging its own responsibility to assure compliance with appellant‘s Constitutional right of counsel, in accordance with its authority under § 6(f) of art. 27A.”
51 Md.App. at 552-553, 444 A.2d at 1067. The intermediate appellate court stated the reasoning underlying that statement: noting the Thompson Court‘s approval of the rejection by the trial court of the OPD‘s invitation to the court to order it to provide representation and the basis for that approval, it concluded, “by logical extension, that, although the court may appoint any other qualified counsel to represent an indigent defendant, it may not appoint the Public Defender against his wish.” Id. at 553 n. 11, 444 A.2d at 1067 n. 11. In Davis, the Court of Special Appeals again opined:
“In Maryland, there are two options available to defendants in criminal cases who are financially unable to retain their own counsel. The first option is representation by the Public Defender‘s Office as authorized by
Maryland Annotated Code, Article 27A, § 4 (1993 Repl. Vol.). If the Public Defender‘s Office determines it is unable to represent a defendant due to his or her income, the court must conduct its own inquiry as to whether the defendant qualifies for a court-appointed counsel.Md.Code Ann. Art. 27A, § 6(f) (1993 Repl. Vol.); Baldwin v. State, 51 Md.App. 538, 553, 444 A.2d 1058 (1982). cert. denied, 299 Md. 425, 474 A.2d 218 (1984). The necessity for this independent court evaluation stems from the judiciary‘s role as the ‘ultimate protector’ of the rights awarded under the Constitution, including the right to counsel. Baldwin, 51 Md.App. at 552, 444 A.2d 1058.”
100 Md.App. at 380-81, 641 A.2d at 947.
The majority does not agree that the appointment responsibilities of the court and the OPD are separate and distinct and that the court does not review the OPD‘s determination of ineligibility. Indeed, characterizing this Court‘s statement in Thompson as dicta, but without clearly saying why, it expressly holds that the trial court‘s responsibility extends to inquiring into the correctness of the OPD‘s indigency, and thus representation, decision:
“the OPD and the Dissent rely heavily on the above quoted language,17 and other dicta in Thompson and Baldwin, ...”
to support their contentions that, where the OPD declines representation, a reviewing court is powerless to correct a manifest error in the local OPD‘s determination of eligibility by appointing the local OPD as counsel for the indigent defendant.... Such dicta is wholly unpersuasive, particularly in light of the statutory scheme designed by the General Assembly to govern the respective responsibilities of the OPD and the courts in determining whether a criminal defendant qualifies as indigent and whether such individual is entitled to representation paid for by the taxpayers.” (footnotes omitted).
OPD v. State, 413 Md. at 430-31, 993 A.2d at 67. I disagree with the majority. Before explaining why the majority is wrong, however, it is necessary to address its assertion that statements in Thompson and Baldwin indicating that the appointment responsibilities of the court and the OPD are separate and distinct and that the court may not appoint the OPD are dicta.
Distinguishing between what is dicta and what is the court‘s holding can be challenging. Without understanding what dicta is, it is not possible to know or appreciate the difference. This Court considered the meaning of dicta in Carstairs v. Cochran, 95 Md. 488, 52 A. 601 (1902). There, concerned with
“We cannot agree that the expression of opinion referred to was an obiter dictum. ... It may be difficult to frame a concise definition of an obiter dictum applicable to every such expression of opinion, and some Courts incline to the rule that the most deliberate expression of opinion, upon a question distinctly raised in the record, and fully argued by counsel, may nevertheless be regarded as a dictum, unless essential to the actual disposition made of the case. But as Bouvier well says: ‘It is difficult to see why, in a philosophic point of view, the opinion of the Court is not as persuasive on all the points which were so involved in the cause that it was the duty of counsel to argue them, and which were deliberately passed on by the Court, as if the decision had hung upon but one point;’ and in Maryland the rule is in accord with this view. In Alexander v. Worthington, 5 Md. 471 [1854], it is said: ‘All that is necessary in Maryland to render the decision of the Court of Appeals authoritative on any point decided, is to show that there was an application of the judicial mind to the precise question adjudged;’ and in Michael v. Morey, 26 Md. 239 [1867], it was said that a decision there cited, could not be said to be obiter dictum, ‘as the question was directly involved in the issues of law raised by the demurrer to the bill, and the mind of the Court was directly drawn to, and distinctly expressed upon the subject.‘”
Carstairs, 95 Md. at 499-500, 52 A. at 601-02. These principles concerning dicta were recently reiterated by in Schmidt v. Prince George‘s Hospital, 366 Md. 535, 551-52, 784 A.2d 1112, 1121 (2001). Before citing to the Carstairs language above, Judge Harrell, writing for the Court noted:
“When a question of law is raised properly by the issues in a case and the Court supplies a deliberate expression of its opinion upon that question, such opinion is not to be regarded as obiter dictum, although the final judgment in the case may be rooted in another point also raised by the record. See Scott v. State, 297 Md. 235, 256, 465 A.2d 1126, 1137 (1983) (Murphy, C.J., dissenting); Carstairs v. Cochran, 95 Md. 488, 499, 52 A. 601, 601 (1902) (citing Monticello Distilling Co. v. City of Baltimore, 90 Md. 416, 45 A. 210 (1900)).”
Id. at 551, 784 A.2d at 1121. Additionally, Black‘s Law Dictionary notes that obiter dictum, which is Latin for “something said in passing” is defined as: “a judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive).” 1177, (9th ed. 2009).
Inconsistent with this Court‘s interpretation and the plain meaning of dicta, the majority opines:
“Regarding the OPD‘s representation to the court that it would represent the defendant if the court so ordered, we stated, in dicta and without citation to authority, that ‘[t]he court refused to so order, properly we believe, on the ground that the question whether the Public Defender represented a particular defendant was for the Public Defender and not for the court.’ [Thompson, 284 Md.] at 128, 394 A.2d at 1197.
“Four years after our decision in Thompson, the Court of Special Appeals, in Baldwin, observed, also in dicta, that Thompson ‘seemed to hold that if the Public Defender declines to represent a defendant even on grounds of non-eligibility (as opposed to a potential conflict of interest)—the court has no authority to order him to provide representation.’ Baldwin, 51 Md.App. at 552, 444 A.2d at 1067.... This question, however, was not at the core of Baldwin.”
OPD, 413 Md. at 430, 992 A.2d at 66-67. The majority is wrong for several reasons.
“The Public Defender wanted to leave it up to the court, making clear that if the court so ordered he would provide representation. The court refused to so order, properly we believe, on the ground that the question whether the Public Defender represented a particular defendant was for the Public Defender and not for the court,”
id. at 128, 394 A.2d at 1197 (emphasis added), thus, approving of the court‘s rejection of the OPD‘s offer to follow its order. The disputed language, therefore, is not dicta.
The majority also overlooks the inescapable relationship between Rule 723 and
“When a defendant appears pursuant to § a of Rule 723, § b 6 requires the court to [a]dvise the defendant that if the Public Defender declines to provide representation, the defendant should immediately notify the clerk of the court so that the court can determine whether it should appoint counsel pursuant to
Article 27A, section 6(f) of the Maryland Code .”
Maryland courts have acknowledged that Thompson stood for the proposition now being dismissed as dicta. Considering the question whether the “trial court abused its discretion, and thus denied [the defendant] rights secured ... by the Sixth and Fourteenth Amendments of the Constitution of the United States, Article 21 of the Maryland Declaration of Rights, and
“By declining to appoint counsel, the court failed to discharge its responsibility under § 6(f) of art. 27A, proceeded to trial in contravention of Maryland Rule 723, and thus effectively denied appellant his Federal and State Constitutional right to counsel.”
Id. at 556, 444 A.2d at 1069. In reaching its holding, the court referenced the Thompson precedent, which it interpreted as holding that a trial court could not “appoint the Public Defender against his wish.” Id. at 552, n. 11, 444 A.2d at 1067. It then stated:
“Upon that premise, the question before us is not whether the Public Defender erred in declining representation but whether the court was derelict in discharging its own responsibility to assure compliance with appellant‘s Constitutional right of counsel, in accordance with its authority under § 6(f) of art. 27A.”
Id. at 552-53, 444 A.2d at 1067.
It is clear and apparent, by the intermediate appellate court‘s reference, in Baldwin, that it understood Thompson to stand for the proposition that a trial court could not appoint the OPD to represent an individual it had declined to represent. That proposition was understood to be at the core of the decision, it was holding, not dicta.
The majority‘s holding is contrary to the Public Defender Statute. In fact, the majority‘s analysis proceeds on faulty premises. First, noting that:
“[a]t the outset, it is clear to this Court, as it was to the Circuit Court in the proceedings below, that the local OPD denied erroneously representation to Stinnett.... Rather than apply the statutorily-mandated criteria for determining indigency provided by
Art. 27A, § 7(a) , the local OPD, in denying representation to Stinnett on this record, relied solely on certain language contained in COMAR 14.06.03.05A and D(2)....18 [T]he local OPD applied the incorrect standard for determining indigency of applicants and erred, both legally and factually, in concluding that Stinnett did not qualify for representation by its attorneys,”
OPD v. State, 413 Md. at 424-26, 992 A.2d at 63-64 (footnote omitted), the majority reasons that this error validated the trial court appointment of the OPD. OPD v. State, 413 Md. at 428-29, 992 A.2d at 66. Moreover, relying on Baldwin, it reasons that the OPD‘s indigency determination is only “initial,” “not final,” because the “courts must, of necessity, be the ultimate protector of those underpinnings[.]” OPD v. State, 413 Md. at 432, 992 A.2d at 67-68 (quoting Baldwin, 51 Md.App. at 552, 444 A.2d at 1067). The third faulty premise is that
a. The Statutory Text and its Legislative Purpose.
The majority‘s holding runs contrary to the mandates under the Public Defender Statute. In enacting this statute, the Legislature clearly announced its purpose and, subject to the right of local governments to opt out and provide their own public defender system,21 to whom it was entrusting implementation:
“It is hereby declared to be the policy of the State of Maryland to provide for the realization of the constitutional guarantees of counsel in the representation of indigents, including related necessary services and facilities, in criminal and juvenile proceedings within the State, and to assure effective assistance and continuity of counsel to indigent accused taken into custody and indigent defendants in criminal and juvenile proceedings before the courts of the State of Maryland, and to authorize the Office of Public Defender to administer and assure enforcement of the provisions of this article in accordance with its terms.”
§ 1. It accordingly established the OPD and designated the Public Defender as its “head.” § 3. To the Public Defender was committed “the primary duty... to provide legal representation for any indigent defendant eligible for services,” to be provided in certain enumerated proceedings, § 4(a) and (b), and the “general responsibility for the operation of the Office of the Public Defender and all district offices,” § 5(1), including such powers and duties, § 5(2)-(8), as will “effectuate the purposes” of the statute and “promote the efficient conduct of the work and general administration of the office, its professional staff and other employees.” § 5(3). The Office of the Public Defender was charged with determining the eligibility for services of any person seeking legal representation, which it was required to do on the basis of that person‘s need, as defined in § 7(a). To make that determination, it was empowered to
“make such investigation of the financial status of each defendant at such time or times as the circumstances shall warrant, and in connection therewith the office shall have the authority to require a defendant to execute and deliver such written requests or authorizations as may be necessary under applicable law to provide the office with access to
records of public or private sources, otherwise confidential, as may be needed to evaluate eligibility.”
§ 7(b). In addition, the Legislature provided “a comprehensive scheme whereby the Public Defender could obtain reimbursement from defendants later found able to pay for part or all of his services.” Baldwin, 51 Md.App. at 551, 444 A.2d at 1066-67, citing and quoting § 7(c)-(f).
The Legislature also acknowledged that certain courts had a role to play, in certain circumstances, in the appointment of counsel for indigent defendants. See § 6(f), n. 3 supra. That acknowledgment was made after it had extensively treated panel attorneys, their appointment, § 6(b), duties, § 6(c), compensation, § 6(d), and entitlement to staffing. § 6(e).
The intent of the Legislature in enacting this statutory scheme can, must, be discerned by reading the various provisions together, giving effect to each, see Gordon Family P‘ship v. Gar on Jer, 348 Md. 129, 138, 702 A.2d 753, 757 (1997); Outmezguine v. State, 335 Md. 20, 41, 641 A.2d 870, 880-81 (1994); Popham v. State Farm Mut. Ins., Co., 333 Md. 136, 148, 634 A.2d 28, 34 (1993); Gov‘t Employees Ins. Co. v. Ins. Comm‘r, 332 Md. 124, 131-132, 630 A.2d 713, 717 (1993); Cicoria v. State, 332 Md. 21, 33, 629 A.2d 742 (1993), and “constru[ing them] according to their ordinary and natural import.” Foley v. K. Hovnanian at Kent Island, LLC, 410 Md. 128, 152, 978 A.2d 222, 236, (2009) (quoting Lanzaron v. Anne Arundel County, 402 Md. 140, 149, 935 A.2d 689, 694 (2007)) (quoting Rose v. Fox Pool Corp., 335 Md. 351, 359, 643 A.2d 906, 909 (1994)). In pursuing that intent, this Court will:
“neither add words to, nor delete words from, a clear and unambiguous statute to give it a meaning not reflected by the words the Legislature chose to use, and we do not engage in forced or subtle interpretation in an attempt to extend or limit the statute‘s meaning.”
In re Gloria H., 410 Md. 562, 581, 979 A.2d 710, 720 (2009); see also Chow v. State, 393 Md. 431, 443, 903 A.2d 388, 395 (2006). Instead, each word will be given effect, so that “no word, clause, sentences or phrase is rendered superfluous or
Applying these principles to the construction of the Public Defender Statute, it is clear that the OPD, not the designated courts, has been entrusted by the Legislature with both the initial, as the majority emphasizes, OPD v. State, 413 Md. at 431-34, 992 A.2d at 67-69, and the primary, as § 4(a) provides, responsibility for insuring that indigent defendants receive the legal representation to which they constitutionally are entitled. Indeed, § 4(a) says as much: “It shall be the primary duty of the Public Defender to provide legal representation for any indigent defendant eligible for services under this article.” To be sure, there is a role reserved for the trial courts. That role was prescribed in § 6(f). It is telling that the only reference to a court role in the appointment of counsel process simply provides
“Nothing in this article shall be construed to deprive [a circuit court] of its authority to appoint an attorney to represent an indigent person ... where the Office of the Public Defender declines to provide representation to an indigent person entitled to representation under this article,”
and does not characterize the court as having “corrective” responsibilities for the OPD or prescribe a review regime for its eligibility determinations. This is perfectly consistent with the interpretation given it by both Thompson and Baldwin: that the appointment authority of the courts was simply supplemental and a failsafe; as the court in Baldwin put it, the role reserved to the courts to appoint counsel is “[i]n obvious recognition of the fact that the whole system has Constitutional underpinnings and that the courts must, of necessity, be the ultimate protector of those underpinnings.” 51 Md.App. at 552, 444 A.2d at 1067, explicating § 6(f). All of the other provisions that address eligibility or appointment refer to the OPD and prescribe the procedures and standards that the OPD must apply and/or the authority that the OPD
b. Corrective Role
The Public Defender statute does not provide for a “corrective role” by which trial judges may review the OPD‘s eligibility determinations, erroneous or otherwise. When the OPD declined representation, the trial court, to be sure, was required independently to determine whether it found the defendant to be indigent. When, as a result of that determination, it concluded that the OPD had misapplied its governing statute, as the “ultimate protector of those [Constitutional] underpinnings,” Baldwin, 51 Md.App. at 552, 444 A.2d at 1067, the trial court, in accordance with our holdings, could have, and should have, pursuant to the statutory authority prescribed in § 6(f), appointed “an attorney.”
Not so, says the majority. It reasons:
“Under Art. 27A, § 7, the ‘initial determination, under the law, is to be made by the Public Defender,’ based upon the criteria enumerated in the statute for determining indigency. Baldwin, 51 Md.App. at 551, 444 A.2d at 1066 (emphasis added). The OPD‘s initial determination of indigency is not final, however, because ‘[i]n obvious recognition of the fact that the whole system has Constitutional underpinnings and that the courts must, of necessity, be the ultimate protector of those underpinnings, id. at 552, 444 A.2d at 1067[.]’ ....”
OPD v. State, 413 Md. at 432, 992 A.2d at 67-68. The majority further concludes that: “the General Assembly provided in Art. 27A, § 6(f), a clear oversight and corrective role for the courts in the indigency determination and appointed-counsel process.” OPD v. State, 413 Md. at 432, 992 A.2d at 68.
It is true, of course, that the initial determination of a defendant‘s eligibility for appointive counsel generally will be
The majority all but concedes this point when it acknowledges, as it must, that § 6(f) “does not specify either the procedure or the standard to be employed by the court.” OPD v. State, 413 Md. at 432, 992 A.2d at 68. Nevertheless, relying on Thompson‘s pronouncement that courts must make their own independent indigency determination, id., and the absence of prohibitory language—“[n]o appellate court in this State has held previously that the attorneys in the local OPD are ineligible from appointment by a circuit court following the local OPD‘s factually and legally erroneous rejection of representation of an indigent defendant“—OPD v. State, 413 Md. at 436, 992 A.2d at 70, it reads into that section an affirmative “corrective” role.
The lift is too heavy. Requiring trial courts to make an independent assessment of the indigency of a defendant turned down by the OPD is a far cry from investing those courts with a “corrective role.” It must be remembered that the Court that imposed the “independent assessment” requirement on trial courts, the Thompson Court, rejected the notion being espoused by the majority, Thompson, 284 Md. at 129, 394 A.2d at 1198, that it had a responsibility, a role to play in directing or correcting the OPD. That Court was clear in
I reject the assertion that appointing the OPD is necessary in order to prevent the court from being rendered “powerless to correct a manifest error.” OPD v. State, 413 Md. at 431, 992 A.2d at 67. The goal of the Public Defender statute is to ensure a defendant‘s right to counsel. A manifest injustice would occur if the defendant were wrongly denied counsel. The OPD is entrusted with the primary responsibility to provide counsel and, in discharging that responsibility, is required to make eligibility determinations. Section 6(f) addresses the situation when the OPD‘s determination is to deny representation; its purpose and effect are to ensure that an indigent individual is provided representation. The trial court, in that event, is authorized to determine for itself whether the defendant is eligible and, if so, to appoint counsel. Thus, the trial court is not powerless to correct a manifest injustice. As the ultimate arbiter of the constitutional mandate, it is empowered, as, where appropriate, it may, and is expected, to appoint counsel. Denying the trial court the ability to appoint the OPD simply does not have the effect the majority posits and supposes.
3. Statutory Construction—The OPD‘s Authority to Decline Representation
The canons of statutory construction demand that no word in the statutory text is interpreted in a way which makes it meaningless. Foley, 410 Md. at 152, 978 A.2d at 237. That is exactly what the majority does here; it completely ignores this canon. Sections 7 and 6(f) give the OPD the ability to determine the eligibility of defendants for appointed counsel, which includes the authority to decline representation. Nevertheless, the majority holds that, despite the statutory au-
According to the majority, the OPD‘s determination to decline representation is subject to review by the court and, should the court determine that it misapplied its statute, reversal of that decision, which, worse yet, will take the form of being appointed to represent the individual it had previously rejected. This flies in the face of § 6(f), which does not provide for such review. Moreover, to read § 6(f) as the majority does, requires that you read out of § 6(f) the OPD‘s right to decline representation and make it subject and subordinate to the court‘s eligibility decision, rendering that portion of the statute completely meaningless. Foley, 410 Md. at 152, 978 A.2d at 237. This result conflicts with the language of the statute and, thus, with what the Legislature intended.
4. Arbitrary and Capricious Standard
The majority‘s holds that the court has the authority to appoint the OPD as “an attorney,” upon finding that the OPD‘s determination was arbitrary or capricious. It states:
“Of course, where the local OPD rejects representation based on its own consideration of the indigency criteria provided by Art. 27A § 7, its determination is entitled to deference, and the court will interfere only when that decision is arbitrary or capricious.”
OPD v. State, 413 Md. at 435, 992 A.2d at 69-70. It is not clear what the source of this review standard is. That it is novel, not previously applied, and is reminiscent of, but not identical to, that applicable to administrative cases comes to mind. The OPD is not an administrative agency. Nevertheless, I will test it under the administrative umbrella.
5. The Administrative Agency Context.
If OPD were an administrative agency, we would have to look to § 6(f) to determine whether the court had jurisdiction to review its decisions. “[I]n order for an administrative agency‘s action properly to be before this Court (or any court)
Administrative agencies can have quasi-judicial functions. This Court has stressed that, while the courts have the ability to review administrative decisions, its “role in reviewing an administrative agency[‘s] adjudicatory decision is narrow.” Md. Aviation Admin. v. Noland, 386 Md. 556, 571, 873 A.2d 1145, 1154 (2005); see Sadler v. Dimensions Healthcare Corp., 378 Md. 509, 529, 836 A.2d 655, 666-67 (2003); Jordan v. Hebbville, 369 Md. 439, 450, 800 A.2d 768, 774 (2002). “The Maryland Administrative Procedure Act, Maryland Code (1984, 1999 Repl. Vol., 2000 Supp.) § 10-222 of the State Government Article22, delineates the procedure for judicial
“the role of the courts in regard to these administrative agency functions is to see that these responsibilities were properly empowered to the agency and have been performed within the confines of the traditional standards of procedural and substantive fair play. In order to perform this essential duty, the courts may be provided with specific authorization to do so by the Legislature through statutory provision, but, even absent such authority, the judiciary has an undeniable constitutionally-inherent power to review, within limits, the decisions of these administrative agencies.’ ‘This power of review, whether authorized by statute or assumed inherently, cannot be a substitution of the court‘s judgment for that of the agency’ and is limited to determining whether the contested quasi-judicial decision ‘was rendered in an illegal, arbitrary, capricious, oppressive or fraudulent manner.‘”
408 Md. 539, 556, 971 A.2d 214, 224 (2009) (internal citations omitted).
When conducting this review, the court:
“must review the agency‘s decision in the light most favorable to it,’ and ‘the agency‘s decision is prima facie correct and presumed valid[.]’ [Bd. of Physician Quality Assurance v. Banks, 354 Md. 59, 68, 729 A.2d 376, 381 (1999)].... In addition, the agency‘s interpretations and applications of statutory or regulatory provisions ‘which the agency administers should ordinarily be given considerable weight by reviewing courts.’ [Id.]. Furthermore, the expertise of the agency in its own field should be respected.”
If the court determines that the agency‘s decision was arbitrary or capricious, it may then remand the matter to the administrative agency. It cannot, as this Court has made clear, substitute its judgment for that of the administrative agency. On this point, this Court has stated:
“Generally, when an administrative agency utilizes an erroneous standard and some evidence exists, however minimal, that could be considered appropriately under the correct standard, the case should be remanded so the agency can reconsider the evidence using the correct standard.’ The reviewing court must remand the matter so that it will not usurp an administrative function:
“It is a fundamental principle of administrative law that a reviewing court should not substitute its judgment for the expertise of the administrative agency from which the appeal is taken. This principle underlies the rule that if an administrative function remains to be performed after a reviewing court has determined that an administrative agency has made an error of law, the court ordinarily may not modify the agency order. Under such circumstances, the court should remand the matter to the administrative agency without modification[.] ...’ Finally, if an administrative function remains to be performed, a reviewing court may not modify the administrative agency‘s action even when a statute provides that the court may ‘affirm, modify or set aside’ because a court may not usurp administrative functions.”
Halle Dev., Inc., 408 Md. at 557, 971 A.2d at 224-25 (citation and footnote omitted); see also Bell Atl. of Md., Inc. v. Intercom Sys. Corp., 366 Md. 1, 21, 782 A.2d 791, 803 (2001) (citing Baltimore Gas & Electric Co. v. McQuaid, 220 Md. 373, 382, 152 A.2d 825, 829-30 (1959)) (stating judicial scrutiny is limited to “finding whether there was illegality or unreasonableness in the Commission‘s action“); see Office of the Governor v. Washington Post Co., 360 Md. 520, 581, 759 A.2d 249, 282 (2000) (Cathell, J., dissenting) (“Thus, in regard to admin-
“[J]udicial review of the actions of an administrative agency is restricted primarily because of the fundamental doctrine of separation of powers as set forth in Article 8 of the Declaration of Rights of the Maryland Constitution.” Sadler, 378 Md. at 530, 836 A.2d at 667-68 (footnote omitted). We recognize, of course, that the three branches are not ““wholly separate and unmixed,” Getty v. Carroll County Bd. of Elections, 399 Md. 710, 731, 926 A.2d 216, 229 (2007) (quoting Crane v. Meginnis, 1 G. & J. 463, 476 (1829)), but the doctrine “cannot be stretched to a point where, in effect, there no longer exists a separation of governmental power....” Dep‘t of Natural Res. v. Linchester Sand & Gravel Corp., 274 Md. 211, 220, 334 A.2d 514, 521 (1975). The doctrine is in place to “preserve [] to one branch of government its essential functions and prohibit [] any other branch from interfering with it or usurping those functions.” McCulloch v. Glendening, 347 Md. 272, 283, 701 A.2d 99, 104 (1997) (quoting O‘Hara v. Kovens, 92 Md.App. 9, 22-23, 606 A.2d 286, 292, cert. denied 328 Md. 93, 612 A.2d 1316 (1992)).
I concur with the majority that the contempt order should not stand. I agree with the majority that, while that order stated the basis for the finding and that Northrop was in direct contempt, it did not indicate whether the contempt was criminal or civil. See OPD v. State, 413 Md. at 437, 992 A.2d at 71. Failure to comply with statutory guidelines is fatal to the order‘s validity. See Hermina v. Baltimore Life Ins. Co., 128 Md.App. 568, 589, 739 A.2d 893, 905 (1999) (“The failure of the court to comply with [Md.] Rule 15-203(b)(2) renders its order of contempt fatally defective in substance as well as form.... The defect in the judgment, failure to specify the evidentiary facts on which it was based, as required by [Md.] Rule 15-203(b)(2), requires that we reverse it.“). In this case, the trial judge failed to comply with Md. Rule 15-203(b)(1).23
I would add, however, that, for the reasons articulated above, the trial court exceeded its authority when it appointed the OPD, and later Northrop, to represent Stinnett. On this additional ground, the contempt order must be reversed.
An individual, in this case, an attorney ordered by the court to perform a task, which runs contrary to his or her statutory obligations, has neither a duty nor an obligation to comply with that order. That is the situation here. Although Northrop did not comply with the court‘s order that he represent Stinnett, a defendant whose representation the OPD had declined, he had no duty to do so.
Judges BATTAGLIA and GREENE join in the views herein expressed.
Notes
Pursuant to Article 27A, § 7, Annotated Code of Maryland, eligibility for services of the Office of the Public Defender shall be determined on the basis of need of the individual seeking legal representation. Need may be measured according to the applicant‘s maximum annual net income level and asset ceiling. In cases where good cause is shown, need may be measured by the financial ability of the applicant to engage and compensate competent private counsel and to provide all other necessary expenses of representation. This ability shall be recognized to be a variable depending on: (1) The nature, extent, and liquidity of assets; (2) The disposable net income of the defendant; (3) The nature of the offense; (4) The effort and skill required to gather pertinent information; (5) The length and complexity of the proceedings; and (6) Any other foreseeable expenses.
(1) Except as provided in § D(3) of this regulation, the maximum net annual income level for persons accepted for representation in District Court cases, violation of probation, and contempt proceedings may not exceed 100 percent of the current official federal poverty income guidelines as found in § 673(2) of OBRA-1981 (42 U.S.C. § 9902(2)). (2) Except as provided in § D(3) of this regulation, the maximum net annual income level for persons accepted for representation in all other cases may not exceed 110 percent of the current official federal poverty income guidelines as found in § 673(2) of OBRA-1981 (42 U.S.C. § 9902(2)). (3) In cases where good cause is shown, a district public defender or division chief may exempt an applicant from the maximum income level requirement upon due consideration of factors enumerated in Regulation .05 of this chapter.
(a) Determination of eligibility for services.—Eligibility for the services of the Office of the Public Defender shall be determined on the basis of need of the person seeking legal representation. Need shall be measured according to the financial ability of the person to engage and compensate competent private counsel and to provide all other necessary expenses of representation. Such ability shall be recognized to be a variable depending on the nature, extent and liquidity of assets; the disposable net income of the defendant; the nature of the offense; the effort and skill required to gather pertinent information; the length and complexity of the proceedings; and any other foreseeable expenses. In the event that a determination of eligibility cannot be made before the time when the first services are to be rendered, the office may undertake representation of an indigent person provisionally, and if it shall subsequently determine that the person is ineligible, it shall so inform the person, and the person shall thereupon be obliged to engage his own counsel and to reimburse the office for the cost of the services rendered to that time.
In this regard, it may be helpful to note the history of
See 21 Md. Reg. 1896 (October 28, 1994) (emphasis added). Prior to the changes, no regulation provided for a maximum net annual income or asset threshold above which representation by the OPD would be denied categorically.Pursuant to Article 27A, § 7, Annotated Code of Maryland, eligibility for services of the Office of the Public Defender shall be determinated on the basis of need of the individual seeking legal representation. Need shall be measured according to the financial ability of the person to engage and compensate competent private counsel and to provide all other necessary expenses of representation. This ability shall be recognized to be a variable depending on: (1) The nature, extent, and liquidity of assets; (2) The disposable net income of the defendant; (3) The nature of the offense; (4) The effort and skill required to gather pertinent information; (5) The length and complexity of the proceedings; and (6) Any other foreseeable expenses.
In 1995, the OPD added Section .05D, concerning maximum net annual income levels for representation, to the regulation and changed
Md.Code (1957, 1976 Repl. Vol.) art. 27A, § 2(f) provides: “(f) ‘Indigent’ means any person taken into custody or charged with a serious crime as herein defined under the laws of the State of Maryland or the laws and ordinances of any county, municipality, or Baltimore City, who under oath or affirmation subscribes and states in writing that he is financially unable, without undue hardship, to provide for the full payment of an attorney and all other necessary expenses of legal representation.”Nothing in this article shall be construed to deprive any court mentioned in § 4(b)(2) of this article of its authority to appoint an attorney to represent an indigent person where there is a conflict in legal representation in a matter involving multiple defendants and one of the defendants is represented by or through the Office of the Public Defender, or where the Office of the Public Defender declines to provide representation to an indigent person entitled to representation under this article.