DeWolfe v. Richmond

BARBERA, J. When an individual is arrested, he or she must go before a judicial officer for an initial appearance, pursuant to Maryland Rule 4-213(a). The judicial officer, who in all instances relevant to the matter sub judice is a District Court Commissioner (“Commissioner”) 1 , has a number of duties at the initial appearance, among which is to comply with the pretrial release provisions of Maryland Rule 4-216. That rule requires the Commissioner to determine whether there was probable cause for the arrest and, if so, whether the defendant should ⁴⁰⁹ be released on his or her own recognizance, on bail, or not at all. We are asked in this appeal whether an indigent defendant is entitled to appointed counsel when a Commissioner makes the Rule 4-216 bail determination.

We hold, for the reasons that follow, that an indigent defendant is entitled to such representation, under Maryland’s Public Defender statute, Maryland Code (2001, 2008 RepLVol.), §§ 16-101 through 16-403 of the Criminal Procedure Article (hereafter “Public Defender Act” or “Act”). 2 I. This case comes to us from the decision of the Circuit Court for Baltimore City granting summary judgment for the Plaintiffs, 3 entering a declaratory judgment, and denying the Plaintiffs’ request for an injunction to enforce the rights declared. The Plaintiffs sought a declaration that they and the class of indigent persons they represent 4 have the right, under the federal and state constitutions and the Public Defender Act, to be represented by the Public Defender at bail hearings, which are conducted as part of the initial appearance before Com ⁴¹⁰ missioners at the Baltimore City Booking and Intake Center (“Central Booking Jail”). To assist in understanding the parties’ respective arguments and the issues we must decide, we describe at the outset what occurs at the initial appearance before the Commissioner. The duties of the Commissioner at the initial appearance are governed by Maryland Code (1974, 2006 Rep.

Vol., 2010 Supp.), § 2-607(c) of the Courts and Judicial Proceedings Article (“C.J.”) and Maryland Rules 4-213(a) and 4-216. The Commissioner must inform the defendant of the charge and allowable penalties; provide the defendant a copy of the statement of charges, if the defendant does not have one and one is available; advise the defendant of the right to counsel; advise the defendant, when it is relevant, of the right to a preliminary hearing; and comply with the pretrial release provisions of Rule 4-216. Md. Rule 4-213(a); see C.J. § 2-607(c)(l)-(2). The pretrial release provisions of Rule 4-216 require the Commissioner, in those instances when the defendant has been arrested without a warrant, to determine whether the arrest was supported by probable cause.

If the arrest was not supported by probable cause, then the Commissioner “shall release the defendant on personal recognizance, with no other conditions of release.” Md. Rule 4-216(a). Of particular relevance to this case is what follows if the Commissioner determines that the arrest was supported by probable cause. In that instance, the Commissioner must comply with the provisions of Rule 4-216(d). That subsection of the Rule requires the Commissioner to determine whether the defendant is eligible to be, and should be, released on his or her recognizance or whether the case requires bail, pending trial.

In that process, the Commissioner considers a number of factors that are set forth in Rule 4-216(d). 5 If the Commissioner “determines that the defendant should be released other than on personal recognizance without any additional ⁴¹¹ conditions imposed,” then the Commissioner “shall impose on the defendant the least onerous condition or combination of conditions of release set out in section (e) ... that will reasonably”: “ensure the appearance of the defendant as required”; “protect the safety of the alleged victim”; and “ensure that the defendant will not pose a danger to another person or to the community.” Rule 4 — 216(d)(3). Rule 4-216(d)(4) further requires the Commissioner to “advise the defendant in writing or on the record of the conditions of release imposed and of the consequences of a violation of any condition.” In addition, “[w]hen bail is required, the judicial officer shall state in writing or on the record the amount and any terms of the bail.” Id. The initial appearance before a Commissioner in Baltimore City is not conducted in a courtroom. According to the Plaintiffs, the initial appearance is not open to the public and is not recorded. 6 The Plaintiffs report that the event takes ⁴¹² place in a “tiny narrow booth” at Central Booking Jail.

A plexiglass wall separates the arrestee and the Commissioner, and the two communicate through a speaker system. According to the Plaintiffs, “public defenders never are present” at the initial appearance, notwithstanding that many arrestees are indigent. The Plaintiffs report: Theoretically, private lawyers may participate, but, in practice, security concerns, lack of personnel for escorts, cramped quarters, and procedural issues at Central Booking make private representation rare. In contrast, by Rule and by practice, the commissioner may receive ex parte recommendations for bail from the State’s Attorney, without any public record of such contact.

The State’s Attorney staffs a 24-hour war room in Central Booking for this purpose. The Plaintiffs further report that, because the initial hearings are “not open to the public ... [and are] not transcribed or recorded,” “it [is] impossible to review what a Commissioner or arrestee said or to understand the basis for the ruling.” Moreover, Commissioners “are not required to give Miranda warnings and thus do not.” When commissioners “ask about residence, employment, family, community ties, prior record, and, frequently, the charges[,] ... [a]rrestees are expected to answer. Most do, not knowing that the information may be recorded in a closed envelope for use against them by judges and prosecutors. They are not informed whether a prosecutor has ex parte contact with a commissioner.” Whenever the Commissioner does not release a defendant following the initial appearance, the defendant is presented to a District Court judge for a bail review hearing “immediately ... if the court is then in session, or if not, at the next session ⁴¹³ of the court.” Md. Rule 4 — 216(f).

The Plaintiffs also inform us that, when a warrant is served with a “preset” bail issued after a defendant fails to appear in violation of a summons, the Commissioner “typically declines to modify the bail previously set in absentia or to consider the defendant’s explanation for the [Failure to Appear].” Furthermore, “[t]hat bail remains in effect until a bail review hearing, where most judges defer to a colleague’s preset amount.” 7 The Lawsuit On November 13, 2006, the Plaintiffs filed in the Circuit Court for Baltimore City a class action complaint (later amended) seeking injunctive and declaratory relief. They sought a declaratory judgment that: (1) the initial bail hearing before the Commissioner is a stage of the criminal proceeding, entitling them to representation under § 16-204(b)(2) of the Public Defender Act, which states that “[representation shall be provided ... in all stages of a proceeding listed in paragraph (1) of this subsection[ 8 ], including, in criminal proceed ⁴¹⁴ ings, custody, interrogation, preliminary hearing, arraignment, trial, and appeal”; (2) they are entitled to counsel under the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights 9 because the initial bail hearing is an adversary proceeding and/or a “critical stage” of a criminal prosecution, as that phrase is understood in Sixth Amendment parlance 10 ; (3) the initial bail hearing implicates the Plaintiffs’ fundamental right to liberty under the Due Process Clause of the Fourteenth Amendment and Article 24 11 ; and (4) they were denied their right to counsel. The Plaintiffs also sought an injunction enjoining the Defendants from violating the Plaintiffs’ right to representa ⁴¹⁵ tion by the Office of the Public Defender at initial bail hearings in Baltimore City. Each named Plaintiff 12 was arrested for a crime that qualifies as a “serious offense,” as that term is defined in the Public Defender Statute, § 16 — 101 (h)(1) — (4). 13 Each Plaintiff was detained at the Central Booking Jail and, without counsel present, was brought before a Commissioner for the purpose of determining eligibility for pretrial release.

Each Plaintiff informed the Commissioner that he or she could not afford an attorney and requested an attorney to represent him or her at the initial appearance. On each occasion, the Commissioner refused to appoint an attorney and, ultimately, set bail for the Plaintiff. 14 The Plaintiffs named as defendants the District Court of Maryland; the Chief Judge of the District Court of Maryland, the Coordinator of Commissioner Activity for the Maryland District Court Commissioners; the Administrative Judge of ⁴¹⁶ the District Court for Baltimore City; the Administrative Commissioner for Baltimore City; and the Commissioners of the District Court in Baltimore City, individually and collectively in their official capacities as District Court Commissioners. The parties later agreed that the District Court should be dismissed from the case because it was not a proper party. The parties filed cross-motions for summary judgment.

After a hearing on the motions, at which the Circuit Court certified the class, the court issued a written order granting summary judgment in favor of the District Court Defendants. The Plaintiffs noted a timely appeal to the Court of Special Appeals. While the case was pending in that court, we issued a writ of certiorari on our initiative. Richmond, v. Dist.

Court, 405 Md. 348 , 952 A.2d 224 (2008). Subsequent to briefing and oral argument, we vacated the order of the Circuit Court and remanded the case with the direction that it be dismissed if the Plaintiffs failed to amend their complaint to assert claims against the Public Defender. On remand, the Circuit Court conditionally denied the Plaintiffs’ petition to certify the class and ordered dismissal of the complaint if the Public Defender was not joined as a defendant. The Plaintiffs amended the complaint to add the Public Defender as a defendant.

The Public Defender filed a response to the cross-motions for summary judgment, originally filed in 2007. He argued that the Plaintiffs had “very strong constitutional and statutory claims,” but the court should not order representation absent funding, and he asked the court to use its discretion to deny declaratory relief or to: (1) order a 6-to-9-month stay for an intergovernmental group to develop solutions; (2) bifurcate the case to add a remedy stage, at which the court could join “additional parties, including political actors” responsible for funding or exercise its “inherent power” to compel funding; (3) issue an injunction with “reform guidelines”; or (4) delay relief until funding is found. The District Court Defendants moved to dismiss the complaint on the basis that the amended complaint failed to seek “coercive relief’ from the Public Defender. At a hearing on ⁴¹⁷ the motion to dismiss, the Circuit Court recertified the class and invited the Plaintiffs to amend their complaint orally, to add claims for relief against the Public Defender.

The Plaintiffs did so, following which the court stated that it would regard the District Court Defendants’ motion to dismiss as a motion for summary judgment. The court then invited the Public Defender to address his response to the cross-motions for summary judgment. The Public Defender argued that the Plaintiffs’ claims based on the Due Process Clause and the Public Defender Act “are well taken.” He argued nevertheless that the court should defer ruling on the merits of the claims, to give him the time to resolve budgetary constraints that made it impracticable for the Public Defender’s Office to provide counsel at the appearance before the Commissioner, while providing “responsible representation ... when it really matters,” at trial and other critical stages of criminal proceedings. The hearing ended with the court informing the parties that it intended to issue a written decision.

The court granted the parties leave to file post-hearing memoranda and advised them to “assume for the purposes of our understanding that the Court does find that the appearance before a judicial officer, i.e., the commissioner, initiates the adversarial responsibility of the right to counsel.” The Plaintiffs thereafter formally amended their complaint and filed a renewed (and amended) motion for summary judgment. The amended complaint sought additional injunctive relief from the Public Defender, specifically requesting the court to “[e]nter[ ] an affirmative injunction directing the Public Defender to assign the district public defender for Baltimore City, an attorney from the district Office of the Public Defender for Baltimore City, or a panel attorney to represent indigent defendants at initial bail hearings and thereafter.” On September 30, 2010, the Circuit Court issued an Order and accompanying Memorandum and Opinion, ruling that presentment to a Commissioner is a critical stage of a criminal prosecution and therefore indigent arrestees in Baltimore City have a right under the Sixth Amendment and Article 21 to be ⁴¹⁸ represented by appointed counsel. The court cited as support for that ruling Rothgery v. Gillespie County, 554 U.S. 191, 128 S.Ct. 2578 , 171 L.Ed.2d 366 (2008), which was decided after the initial proceedings in the Circuit Court. The court further ruled that the Plaintiffs were entitled to counsel under the Public Defender Act, noting that the duty of representation under the Act extends beyond the requirements of the Sixth Amendment.

Finally, the court ruled that, “by denying Plaintiffs and those similarly situated any representation at the initial bail hearing, Defendants violated Plaintiffs’ due process rights.” Based on those rulings, the Circuit Court denied the District Court Defendants’ Motion to Dismiss (treating it as a motion for summary judgment) and granted the Plaintiffs’ motion for summary judgment. The Circuit Court issued an order staying the decision pending appellate review. Both the Public Defender and the District Court Defendants noted timely appeals. The District Court Defendants thereafter filed a motion requesting the court to enter clarifying orders, as no declaratory judgment had been entered and the Plaintiffs’ request for injunctive relief had not been decided.

The Public Defender responded to that motion, agreeing that a separate order setting forth the terms of the court’s declaratory judgment “seems appropriate.” The Public Defender disagreed, however, that the court should enter an order specifying the terms of any injunctive relief, and he asserted that the Plaintiffs should be deemed to have abandoned their claims for such relief. By Order dated December 28, 2010, the Circuit Court granted the Plaintiffs declaratory relief in conformance with its earlier Memorandum and Opinion. By separate Order of the same date, the Circuit Court denied without prejudice the Plaintiffs’ request for injunctive relief. The Plaintiffs then sent correspondence to the Circuit Court, requesting the court to amend the order denying injunctive relief “without prejudice,” as the order might not constitute a “final” order for purposes of appellate review. 15 ⁴¹⁹ The Plaintiffs submitted two proposed orders, one awarding them the injunctive relief they requested and the other denying it.

The Plaintiffs advised the court that they “do not object to denial of their request for injunctive relief at this time,” but they asked the court to include in its order denying relief a proviso stating that, “[t]o the extent Plaintiffs may require injunctive relief in the future,” they could seek that relief in subsequent proceedings by making a supplementary petition, under C.J. § 3-412 16 . In that letter, the Plaintiffs also asserted that the denial of injunctive relief would not erect a res judicata bar and C.J. § 3-412 expressly allows further relief based on a declaratory judgment. The District Court Defendants did not oppose the modification of the Order denying injunctive relief, but opposed the Plaintiffs’ proposed proviso. They asserted that the additional language would create the impression that the parties contemplated further action in the Circuit Court and, therefore, there would be no final judgment.

The District Court Defendants also took the position that res judicata would apply to future requests for injunctive relief. According to the Defendants, although declaratory judgment actions are an exception to traditional res judicata principles, the exception does not apply where the declaratory judgment action additionally sought injunctive relief. The Public Defender did not oppose amending the order to deny injunctive relief outright, noting that the Plaintiffs “would then have the option to seek further relief, if necessary, under [C.J.] § 3^12 at a later time if ⁴²⁰ Defendants were to fail to comply with the declarations after appeals are resolved and the stay is lifted.” The Circuit Court issued an Amended Order entered February 25, 2011, denying the Plaintiffs’ request for injunctive relief, and omitting the proviso requested by the Plaintiffs. The District Court Defendants filed another timely notice of appeal to “remove any uncertainty about whether the notice they filed on November 1, 2010, is effective in light of the Court’s later revisions.” The Public Defender then filed his own timely Renewed Notice of Appeal.

The Plaintiffs, in turn, filed a timely Notice of Cross-Appeal. The Plaintiffs then filed a Petition for a Writ of Certiorari seeking this Court’s consideration of the judgment prior to review by the Court of Special Appeals. The Plaintiffs presented the following questions for review: 1. Do indigent defendants have a right to counsel at initial bail hearings before district court commissioners under Maryland’s Public Defender Act? 2.

Do indigent defendants have a right to counsel at initial bail hearings under the Sixth Amendment and Article 21 of the Declaration of Rights? 3. Do indigent defendants have a right to counsel at initial bail hearings under Maryland or federal guarantees of due process? 4. Even if no right to counsel exists under Issues 1 through 3, do indigent defendants have a due process right to counsel at initial bail hearings when commissioners impose bail “preset” by the district court in absentia? 5. Did the circuit court abuse its discretion by granting the Class declaratory relief in accord with its findings that defendants are violating the Class’s statutory and constitutional rights? 6.

Does the circuit court’s denial of [the Plaintiffs’] request for an injunction establish a res judicata bar against a future request to enjoin future violations to effectuate the court’s declaratory judgment, and, if so, did the court err, either by denying the injunction request without reserving ⁴²¹ [the Plaintiffs’] right to seek injunctive relief in the future or by failing to order an injunction that would be stayed pending appeal? The Public Defender filed a Conditional Cross-Petition for a Writ of Certiorari, presenting the following question: In light of the uncontested facts presented by the Public Defender that providing counsel at initial bail hearings would render the Office of the Public Defender unable, within its currently available resources, to provide representation at these proceedings while still meeting its obligation to provide effective, competent, and diligent representation to indigent defendants, did the circuit court err in issuing the declaration without in any way addressing remedy and how this undisputed funding shortfall might be practicably addressed? We granted certiorari to address these important questions. DeWolfe v. Richmond, 420 Md. 81 , 21 A.3d 1063 (2011).

For the reasons that follow, we answer “yes” to the first question presented by the Plaintiffs and hold that they enjoy a right under the Public Defender Act to be represented at any bail hearing conducted before a Commissioner. We need not and therefore do not address the federal and state constitutional claims presented by the Plaintiffs’ second, third and fourth questions. See McCarter v. State, 363 Md. 705, 712 , 770 A.2d 195, 199 (2001) (stating that “this Court adheres to the ‘established principle that a court will not decide a constitutional issue when a case can properly be disposed of on a non-constitutional ground’ ”) (quoting Baltimore Sun Co. v. Mayor of Baltimore, 359 Md. 653, 659 , 755 A.2d 1130, 1133-34 (2000) (citation omitted)). We further hold, in answer to the Plaintiffs’ fifth question, that the Circuit Court did not err in declaring the Plaintiffs’ entitlement to representation of appointed counsel at the bail hearing before a Commissioner.

As for the related question presented by the Public Defender’s cross-petition, we hold that the Circuit Court did not err in issuing its declaration without consideration of the costs attendant to the rights declared. Finally, in answer to the last ⁴²² of the Plaintiffs’ questions, we hold that the Circuit Court’s denial of the Plaintiffs’ request for injunctive relief does not erect a res judicata bar to the Plaintiffs’ seeking future injunctive relief, as may be necessary to enforce the right to counsel declared by the Circuit Court in its December 2010 order.

II

A. Right to Counsel We have said on more than one occasion that the right to counsel provided under the Public Defender Act is broader in scope than that granted under the Sixth Amendment. 17 See McCarter, 363 Md. at 713-14 , 770 A.2d at 200 , and cases cited therein. Section 16-204 of the Act outlines the scope of representation by the Public Defender and lists in subsection (b) the “Proceedings for which representation shall be provided.” Subsection (b)(1) provides, in pertinent part: Indigent defendants or parties shall be provided representation under this title in: (i) a criminal or juvenile proceeding in which a defendant or party is alleged to have committed a serious offense; (ii) a criminal or juvenile proceeding in which an attorney is constitutionally required to be present prior to presentment being made before a commissioner or judge; (iii) a postconvietion proceeding for which the defendant has a right to an attorney under Title 7 of this article; (iv) any other proceeding in which confinement under a judicial commitment of an individual in a public or private institution may result; (v) a proceeding involving children in need of assistance under § 3-813 of the Courts Article; or ⁴²³ (vi) a family law proceeding under Title 5, Subtitle 3, Part II or Part III of the Family Law Article ... Subsection 16 — 204(b)(2) in turn provides: “Representation shall be provided to an indigent individual in all stages of a proceeding listed in paragraph (1) of this subsection, including, in criminal proceedings, custody, interrogation, preliminary hearing, arraignment, trial, and appeal.” The Circuit Court agreed with the Plaintiffs and the Public Defender that, by its plain language, § 16-204(b) mandates public defender representation at the bail hearing that occurs as part of the initial appearance before a Commissioner. The District Court Defendants counter, as they did in the Circuit Court, that the Public Defender Act does not include within its mandate representation at the initial appearance before a Commissioner.

They urge a construction of the Act, and § 16-204(b) in particular, that depends largely on an examination of the historical roots of the Act’s enactment, the “nearly contemporaneous! ] • • • establishment of the District Court,” and the promulgation of pertinent Rules of Procedure “governing post-arrest and pre-trial procedures.” The District Court Defendants assert: The statute, the rules, and the District Court were part of an overarching design to ensure that Maryland practice conformed to constitutional requirements, to ensure that arrestees received prompt probable-cause determinations, to facilitate the appointment of counsel in advance of critical stages of the proceedings, such as a preliminary hearing or trial in the District Court, and to encourage the entry of counsel early in circuit court proceedings, thus avoiding delay. The District Court Defendants contend that the Act cannot be divorced from its constitutional underpinnings, which in their view demonstrate that the initial bail hearing is not a critical stage for Sixth Amendment purposes; consequently, the Plaintiffs have no right under the Act to public defender representation at the initial bail hearing. In further support of that argument, the District Court Defendants point to Maryland Rule 4-214(b), which they believe reflects the con ⁴²⁴ stitutionally-based foundations of the Act. That rule provides, in part: Extent of duty of appointed counsel.

When counsel is appointed by the Public Defender or by the court, representation extends to all stages in the proceedings, including but not limited to custody, interrogations, prehminary hearing, pretrial motions and hearings, trial, motions for modification or review of sentence or new trial, and appeal. The District Court Defendants assert that, despite the language of § 16 — 204(b) of the Act extending representation to “all stages of a proceeding,” Rule 4-214(b) does not extend as far. They ask us to read the Act and its legislative history in conjunction with Rule 4-214(b) and its history. The District Court Defendants urge that the history supports their argument because “[t]he impetus for enactment of the legislation establishing Maryland’s statewide public defender system was the Supreme Court’s extension of the right to counsel at a preliminary hearing.” 18 They rely, too, on unsuccessful efforts over the years to amend the statutory language to provide expressly for representation at bail hearings.

The Plaintiffs urge a far different interpretation of § 16-204(b). They argue that, by its plain language, the statute dictates the outcome here: indigent defendants are entitled to public defender representation at “all stages” of the proceedings, and “all means all.” The Plaintiffs direct our attention to subsections § 16 — 204(b)(l)(i) and (iv). They claim entitlement to public defender representation under either (b)(l)(i), because they have been charged with a “serious offense” as that term is defined in the Act, see § 16 — 101 (h)(1) — (4), or under (b)(l)(iv), because they are at risk of possible incarceration in a public institution such as the Central Booking Jail. The Plaintiffs then posit that the only remaining question concerns, in their words, “whether bail is a covered ‘stage’ under ⁴²⁵ § 16-204(b)(2) such that representation must be provided at that stage.” They answer that question by directing us to the plain language of the subsection itself, which states that representation is to be provided at “all stages of a proceeding listed in paragraph (1) of this subsection, including, in criminal proceedings, custody, interrogation, preliminary hearing, arraignment, trial, and appeal.” (Alteration by the Plaintiffs.) The Plaintiffs urge, moreover, a view of the legislative history of the Act that varies significantly from that of the District Court Defendants.

The Plaintiffs cite the purposes announced in the Act, to “assure the effective assistance and continuity of counsel to indigent accused individuals taken into custody and indigent individuals in criminal and juvenile proceedings before the courts of the State.” § 16-201(2) (alteration by the Plaintiffs). The Plaintiffs further assert that the Act was drawn from a Montgomery County ordinance, which provided counsel at bail hearings; therefore, when the General Assembly enacted § 16-204(b), it was well aware of what “all stages of a proceeding” would encompass. We conclude that the Plaintiffs have the better part of the argument. It is plain to us, as it was to the Circuit Court and is to the Public Defender himself, that the relevant language of the Act is unambiguous and dictates the outcome here.

In construing the extent of the Plaintiffs’ entitlement under § 16-204(b), we do not write on a clean slate. We have addressed on a number of occasions the applicability vel non of that subsection. One of the first opportunities came when we were asked in Webster v. State, 299 Md. 581 , 474 A.2d 1805 (1984), to decide, among other issues, whether the Act, then codified at Article 27A, entitles an indigent arrestee to appointed counsel at a pre-indictment lineup. We noted at the outset of our1 discussion on the subject: “It is clear that legal representation by the Public Defender is not limited to those proceedings in which the Sixth Amendment demands the assistance of counsel: the statute contemplates such represen ⁴²⁶ tation in certain areas beyond the reach of that guarantee.” Id. at 603, 474 A.2d at 1317 .

We recognized that a lineup that takes place before formal accusation, though not a “critical stage” under the Sixth Amendment, “is nevertheless a critical stage for the suspect, who, of course, is in custody at the time.” Id. at 603-04 , 474 A.2d at 1317 . Therefore, notwithstanding that a lineup that occurs before formal accusation “is not encompassed within the types of cases designated in [former] § 4(b) as calling for the assistance of the Public Defender,” “such a confrontation, arranged by the police, at which a suspect is exhibited in order to obtain evidence that he is the criminal agent, is within the ambit of the Public Defender statute.” Id. at 604, 474 A.2d at 1317 . We discussed Webster in Harris v. State, 344 Md. 497 , 511—12, 687 A.2d 970, 977 , cert. denied, 522 U.S. 1017 , 118 S.Ct. 605 , 139 L.Ed.2d 492 (1997). Harris involved whether a court could appoint standby counsel from the Office of the Public Defender for a pro se defendant who validly had waived his right to counsel.

Although we decided that the Act did not provide for public defender representation in such a role, we did not depart from our prior understanding that the Act reached beyond the demands of the Sixth Amendment. Id. at 499 , 687 A.2d at 971 . We noted in Harris that we had been “persuaded [in Webster ] by the fact that the policy of the Public Defender statute ‘was not only “to provide for the realization of the constitutional guarantees of counsel in the representation of indigents ... in criminal and juvenile proceedings within the State ...” but also “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 Id. at 512, 687 A.2d at 977 (quoting Webster, 299 Md. at 603 , 474 A.2d at 1316 (quoting former Art. 27A § 1, now § 16-201 of the Act)) (alteration in original). Subsequently, in State v. Flansburg, 345 Md. 694, 697 , 694 A.2d 462, 463-64 (1997), we were asked to decide whether an ⁴²⁷ indigent defendant is entitled to representation by the Public Defender when filing a motion to modify a sentence that was imposed at a probation revocation proceeding.

We observed, as we had in Webster, that “the right to counsel under the Public Defender Act is significantly broader than the constitutional right to counsel.” Flansburg, 345 Md. at 700 , 694 A.2d at 465 . We noted that probation revocation proceedings are civil proceedings, and we reasoned that they came within the ambit of what was formerly Article 27A, § 4(b)(4), now § 16-204(b)(l)(iv) of the Act, because those proceedings could result in incarceration. Id. at 700 n. 5, 700, 694 A.2d at 465 n. 5, 465. We further reasoned that a motion to modify a sentence imposed at a probation revocation proceeding is a “stage” of that proceeding, entitling the defendant to public defender representation under then Article 27A, § 4(d), now § 16-204(b)(2).

Id. at 702, 694 A.2d at 466 . We therefore held that Flansburg was entitled to have Public Defender representation in filing the motion to modify the sentence that had been imposed at the probation revocation proceeding. Id. at 703 , 694 A.2d at 467 . Most recently, we decided McCarter .

We considered in that case whether “a defendant has a right to counsel at an initial appearance, under Maryland Rule 4-213(c), at which time the defendant purported to waive his right to a jury trial.” 363 Md. at 707 , 770 A.2d at 196 . We held that the Public Defender Act bestows such a right to counsel at the proceeding, and, consequently, the trial court erred when it accepted at that proceeding McCarter’s purported waiver of his right to a jury trial, without the benefit of counsel. Id. at 713 , 770 A.2d at 199-200 . In so holding, we undertook the same analysis of the Public Defender Act as we had done in Webster and Flansburg .

We restated at the outset what by then was a settled proposition of law: “[T]he right to counsel under the Public Defender Act is significantly broader than the constitutional right to counsel.” Id. at 713-14 , 770 A.2d at 200 (internal quotation marks and citations omitted). We reasoned that a Rule 4-213(c) initial appearance is a “stage” of the proceeding; id. at 715- ⁴²⁸ 16, 770 A.2d at 201 ; representation under the Public Defender Act “extends to all stages in the proceedings”; and “ ‘[a]ll’ means ‘all’”; id. at 716 , 770 A.2d at 201 (quoting former Article 27A, § 4(d)). We went so far as to state: “The specific types of proceedings listed in the statute ... are for purposes of illustration only.” Id., 770 A.2d at 201 . 19 McCarter , much like Webster and Flansburg preceding it, directs us to the proper disposition of the present case. The parties agree, and we concur, that the initial appearance before a Commissioner in Maryland is an event that marks the beginning of the formal criminal adversarial process.

Indeed, the Supreme Court has confirmed that “[a] criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.” Rothgery v. Gillespie County, 554 U.S. at 213 , 128 S.Ct. 2578 (emphasis added). 20 The initial appearance before the Commissioner — including the bad hearing that is part of that event — is clearly encompassed within a “criminal proceeding,” and may result in the defendant’s incarceration. The only remaining question is ⁴²⁹ whether the bail determination is a “stage” of that proceeding. Doubtless it is. We detailed at the outset of this opinion the process by which the Commissioner must determine, by reference to a number of fact-laden considerations listed in Rule 4-216(d), whether the defendant is to be released on his or her own recognizance or incarcerated until further consideration by a District Court judge at a subsequent bail review hearing.

See Rules 4-213(a), 4-216. The presence of counsel for that determination surely can be of assistance to the defendant in that process. We are informed by the Plaintiffs that “[ujnrepresented suspects are more likely to have more perfunctory hearings, less likely to be released on recognizance, more likely to have higher and unaffordable bail, and more likely to serve longer detentions or to pay the expense of a bail bondsman’s non-refundable 10% fee to regain their freedom.” The Plaintiffs also note that an unrepresented person, in an effort to obtain release, could make incriminating statements to the Commissioner. 21 That a defendant might have bail reduced or eliminated by a District Court judge at a subsequent bail review hearing does not dispel or even mitigate the fact that, whenever a Commissioner determines to set bail, the defendant stands a good chance of losing his or her liberty, even if only for a brief time. Furthermore, the likelihood that the Commissioner will give full and fair consideration to all facts relevant to the bail determination can only be enhanced by the presence of counsel.

See Abell Pretrial Release Project Report at iii (finding that “most judicial officers decide whether to order release on recognizance or a financial bail without having essential infor ⁴³⁰ mation about the person’s employment status, family and community ties, and ability to afford bail”). We cannot overlook, moreover, the evidence in the record that the Commissioner’s initial bail decision often is not disturbed by the District Court judge on bail review. See id. at 32 (finding that, at bail review, District Court judges in the sample group maintained prior bail conditions in roughly half the cases, released only 25% of detainees on personal recognizance, and lowered bail for only one in four individuals (27%)). 22 Whenever the Commissioner’s bail decision is left standing, the defendant will remain incarcerated for weeks, if not many months, before trial. The District Court Defendants assert that Rule 4-214 informs, better than does the plain language of the Act, the stages at which the right to counsel applies.

Rule 4-214(b) provides that, “[w]hen counsel is appointed by the Public Defender or by the court, representation extends to all stages in the proceedings, including but not limited to custody, interrogations, preliminary hearing, pretrial motions and hearings, trial, motions for modification of review of sentence or new trial, and appeal.” (Emphasis added.) We see no conflict between Rule 4-214(b) and § 16-204(b). Both provisions extend representation to “all stages,” though each provides a different exemplary list, which, as stated in Rule 4-214(b), is not exclusive. 23 For all these reasons, we hold that the bail-hearing portion of the initial appearance before the Commissioner is a “stage” of the criminal proceeding, as that term is employed in § 16-204(b)(2) of the Public Defender Act. Because public ⁴³¹ defender representation is to be afforded “in all stages of a proceeding listed in paragraph [ (b) ](!),” and we have determined that the bail hearing is a stage of a “criminal ... proceeding” enumerated at (b)(l)(i), it follows that indigent defendants charged with “serious offense[s],” as that term is defined in the Act, are entitled to appointed counsel at the bail hearing. This conclusion is fully in keeping with our prior decisions in Webster, Flansbwrg, and McCarter .

We further hold that indigent defendants who are not charged with a serious offense, and therefore do not come within the ambit of § 16 — 204(b)(l)(i), do come within the reach of § 16 — 204(b)(l)(iv), because the bail hearing at the initial appearance for the non-serious offense might result in incarceration. Subsection (b)(l)(iv) provides public defender representation for indigent persons at “any other proceeding in which confinement under a judicial commitment of an individual in a public or private institution may result.” As the District Court Defendants note, § 16 — 204(b)(1)(iv) applies to civil commitments and civil contempt proceedings. See Flansburg, 345 Md. at 700 , 700 n. 5, 694 A.2d at 465 , 465 n. 5. Still, to our knowledge, we never have suggested that § 16-204(b)(l)(iv) is limited to those proceedings.

It would be nonsensical, and contrary to the plain language of § 16-204(b)(l)(iv), to