Director, Patuxent Institution v. Cash

Barnes, J., delivered the opinion of the Court. Both appeals, Director, Patuxent Institution v. Clifton Cash et al, No. 287, September Term, 1972, and Gerald Booker v. State of Maryland ex rel. Board of Patuxent Institution, No. 318, September Term, 1972, present the same basic question of whether the reporting provision of Maryland Code (1957, 1971 Repl. Vol.) Art. 31B, § 7(a), as amended by Chapter 491 of the Laws of Maryland of 1971, for persons awaiting examination and evaluation at the Patuxent Institution is mandatory or directory.

We have decided to consider both cases together in this opinion. There are, however, additional questions raised in Director, No. 287, which will also require consideration by us in this opinion. We will first give the facts separately in each case, discuss the basic question common to both cases and then consider the additional questions applicable only to Director, No. 287. FACTS IN DIRECTOR, PATUXENT INSTITUTION v. CASH et al., No. 287 Fifty patients at the Patuxent Institution (Patuxent), between July 10, 1972, and September 15, 1972, filed petitions for the issuance of a writ of habeas corpus (petitions) in the Circuit Court for Montgomery County before Judge Plummer M. Shearin.

These petitions alleged in substance that Patuxent had not evaluated the petitioners, pursuant to Art. 31B, § 7(a), within six months of their transfer to Patuxent for examination and that, as a consequence, they were entitled to be removed from Patuxent. On the date the petitions were filed, none of the petitioners had served the sentences imposed upon them for their original criminal convictions. ‘ Of the original 50 petitioners, 12 only had been convicted in the Circuit Court for Montgomery County and referred by that court to Patuxent for diagnosis and evaluation. The ³³⁴ remaining 38 petitioners had been referred to Patuxent by the courts in Baltimore City, Prince George’s, Baltimore, Frederick, Caroline, Allegany and St. Mary’s Counties. The record is complete with data agreed to by stipulation of the parties, showing for each petitioner the date of conviction, the court, judge, sentence and crime, the date of the order of court for referral to Patuxent, the date the petitioner was received at Patuxent, the date the report in regard to the petitioner was forwarded to the referring court and other proceedings in regard to the petitioner.

For example, the petitioner and first-mentioned appellee, Clifton Cash, was convicted on December 23, 1970, in the Circuit Court for Prince George’s County for rape and was sentenced to a term of 20 years’ imprisonment from March 19, 1970. The order of referral to Patuxent was dated December 23, 1970. Mr. Cash was received at Patuxent on March 23,1971, and reports in regard to him were filed in the Circuit Court for Prince George’s County on May 22 and August 16, 1972. It would unnecessarily prolong this opinion to set out the data in regard to the remaining 49 petitioners and appellees.

We will state, however, that the crimes involved in regard to some (but not all) of the defendants are rape, kidnapping, arson, robbery, forgery and uttering, burglary, robbery with a deadly weapon, sodomy, perverted practice, assault with intent to murder, assault, housebreaking, manslaughter, malicious burning, larceny and petty larceny, storehousebreaking and various attempts to commit some of the crimes listed. The original sentences involved ranged from two years imposed upon the petitioner Charles Johnson in the Circuit Court for Allegany County for assault to 40 years imposed upon the petitioner Albert Stokes in the Circuit Court for Prince George’s County for kidnapping and robbery with deadly weapon (4 counts). The majority of the sentences are between 5 to 10 years. Six of the petitions (not including the petitions of any of the petitioners specifically mentioned) were discharged by the lower court during the course of the hearing for various reasons not now important.

The parties entered into a stipulation in the lower court, ³³⁵ that if the petitioners were called to testify under oath or after affirmation at the hearing on the present petition, they would continue to refuse to engage in a personal interview with any psychologist, psychiatrist, or other Patuxent Institution staff member. In addition, the stipulation stated, in effect: that each of the 44 petitioners was ordered to Patuxent for an examination for possible defective delinquency, pursuant to Art. 31B, § 6(d) of the Maryland Code; that upon arriving at Patuxent, each petitioner was assigned to a cell in the receiving section there; that during that period of time, the psychotherapy, rehabilitative opportunities and vocational training available to persons diagnosed as defective delinquents were not available to the petitioners; that the cost of confinement of a person at Patuxent is not less than $7,994.00 per annum (per capita cost for fiscal 1971) and for confinement in the Division of Correction not more than $5,524.00 per annum (cost for fiscal 1972). The calculations are based on operating costs and do not include capital expenditures. Paragraphs III and IV of the stipulation are, as follows: “HI.

The staff at Patuxent Institution has available to it information 1 concerning the Petitioner in his base file and in his other records. Certain of this information could be used by the staff in making an evaluation of Petitioner as to whether he is a defective delinquent. With certain exceptions, diagnoses have been attempted on all Petitioners based solely on the information contained in his base file and are attached hereto as Exhibit A and the diagnosis or reasons for failure to make a diagnosis are stated therein. “IV. There was no adversary hearing prior to the referral of Petitioner to Patuxent Institution for the purpose of determining whether or not he ³³⁶ should have been referred for evaluation.

The defective delinquent law, Article 31B, does not provide for such a hearing. There was no adversary hearing held within the first six months of Petitioner’s confinement at Patuxent Institution to determine if he should continue to be confined for purposes of evaluation.” Judge Shearin based his comprehensive opinion on an interpretation of Art. 31B, § 7(a), as amended by Chapter 491 of the Laws of 1971, which provides: “They shall state their findings in a written report addressed to the court, not later than six months from the date said person was received in the Institution for examination, or three months, before expiration of his sentence, whichever first occurs.” He concluded that this language was mandatory and hence the petitioners were entitled to be released from Patuxent and transferred to the Division of Corrections for the service of their original sentences. Judge Shearin also indicated that the Supreme Court of the United States in McNeil v. Director, 407 U. S. 245 , 92 S. Ct. 2083 , 32 L. Ed. 2d 719 (1972) had held unconstitutional a portion of Art. 31B, § 6(e): “After the court has ordered an examination to be made under this Section, said person shall be retained in custody, initially of the Department of Corrections until his transfer to Patuxent Institution and thereafter in the custody of Patuxent Institution until such time as the procedures of the subtitle for the determination of whether or not said person is a defective delinquent have been completed, without regard to whether or not the criminal sentence to which he was last sentenced has expired. ” He stated that our “dicta” in State v. Musgrove, 241 Md. 521 , 217 A. 2d 247 (1966) to the effect that all of Art. 31B, § 6(e) was constitutional and valid had been “vitiated by the decision of the Supreme Court in McNeil” and that the lower court “must rely on other sources for assistance in determining the effect of the 1971 Amendments to Article 31B.” ³³⁷ From Judge Shearin’s order of October 4, 1972, directing the Director of Patuxent to transfer the named petitioners from Patuxent to the 'jurisdiction of the Division of Corrections, the Director took a timely appeal to the Court of Special Appeals on October 17, 1972. The Director, on December 6, 1972 — prior to briefing and argument in the Court of Special Appeals — filed a petition for the issuance of a writ of certiorari with us, pursuant to Art. 5, § 21B, Chapter 361, Laws of Maryland 1972, to bring the case directly to us for decision.

We granted the petition for the issuance of the writ of certiorari on December 12, 1972. FACTS IN BOOKER v. STATE OF MARYLAND ex rel BOARD OF PATUXENT INSTITUTION, No. 318 On November 9, 1972, the appellee and plaintiff below, the State of Maryland ex rel. Board of Patuxent Institution, filed a bill of complaint in the Circuit Court for Howard County, in equity, against Gerald Booker, the appellant and defendant below, seeking declaratory relief pursuant to Article 31A of the Code — the Uniform Declaratory Judgments Act. The facts in the case and the relevant allegations in the bill of complaint are well stated by Chief Judge Macgill in his written opinion filed on January 5, 1973, as follows: “Article 31B, Section 7(a), before the passage of Chapter 491, read, in part, as follows: “ ‘They shall state their findings in a written report addressed to the Court, no later than six months from the date said person was received in the Institution for examination, or before expiration of his sentence, whichever last occurs. ’ (Emphasis in original) “Chapter 491 amended a portion in the section to read as follows: “ ‘They shall state their findings in a written report addressed to the court, not later than six months from, the date said person was received ³³⁸ in the institution for examination, or three months before expiration of his sentence, whichever first occurs. ’ (Emphasis in original) “The bill alleged that the defendant, who had been referred to the Institution for an examination and evaluation after a conviction of robbery in the Criminal Court of Baltimore City, had consistently refused to submit to psychological and psychiatric examinations and that because of his refusal no report has been made by the Institution to the referring court within six months after the defendant had been received at the Institution. “The relief prayed is that this Court declare that Article 31B, Section 7(a), as originally drawn, or as amended by Chapter 491, does not require that the Patuxent Institution submit its report within the time limits therein set forth when those such as the defendant refuse to submit to an examination, that this Court declare that the failure to submit such a report to the referring court within the time limited does not require the transfer of such persons to the Division of Corrections, that this Court declare that such a report, if submitted after the time limited, is not invalid, and that this Court declare that the language of Section 7(a) is not mandatory but discretionary as to those persons who refuse to cooperate to the extent of submitting to a personal examination as provided for in the Section. “It was stipulated that the records of Patuxent would reveal that no psychiatric or psychological examinations had been made of the defendant during his period of confinement in excess of six months in that institution and that the records would further reveal that he has consistently refused to submit to such examinations.

It was also stipulated that if the director, Dr. Boslow, were to testify, he would probably give his opinion that ³³⁹ the required report could not be made on the defendant without such personal examination and testing. It was not conceded by the defendant that Dr. Boslow’s opinion would be correct. It was asserted on behalf of the defendant that, based on the opinion in McNeil v. Director, Patuxent Institution, 40 LW 4743, 92 Sp. Ct. 2083, 32 L. Ed. 2d 719 (1972), the required finding and report could be made without a personal examination. “Judge Plummer M. Shearin, of the Circuit Court for Montgomery County, on October 4, 1972, ordered that certain of the inmates of Patuxent be transferred to the jurisdiction of the Division of Corrections on the ground that the time requirement in Section 7(a) is mandatory, irrespective of the recalcitrance of an inmate, and that the Legislature, by the enactment of the amendment, so manifested its intention.

Judge James S. Getty, of the Circuit Court for Allegany County, on November 15, 1972, arrived at a conclusion contrary to that reached by Judge Shearin, and stated, in part, ‘The legislature, furthermore, did not amend that part of Article 31B Section 6(e) which provided that persons could be retained at Patuxent until the procedures for determining defective delinquency had been completed. If the intent was to make Section 7 mandatory, 6(e) would have been stricken from the law. Both the Legislature in adopting the law and the Court in interpreting it appear to this Court to have intended that Section 7 was directory and not mandatory.’ ” Chief Judge Macgill concluded that the language in Art. 31B, § 7(a), as amended, was directory rather than mandatory and on January 10, 1973, in accordance with his opinion of January 5, filed a final decree which made the following declarations: 1. “. . . the provisions of Article 31B, Section 7(a), ³⁴⁰ Annotated Code of Maryland, prior to Chapter 491, Laws of Maryland, 1971, and as amended by that Chapter, are not mandatory, but directory with respect to those individuals referred to Patuxent Institution for examination who refuse to submit to the personal Examination, diagnosis and evaluation pursuant to Article 31B, Section 7(a); that the provisions of Article 31B, Section 7(a), prior to Chapter 491, Laws of Maryland, 1971, and as amended by that Chapter, are only applicable where an individual referred to Patuxent Institution for diagnosis and evaluation permits, by virtue of his timely cooperation with the staff at Patuxent Institution, to make its diagnosis and evaluation in accordance with the provisions of Article 31B, Section 7(a);. ..” 2. “. . . the provisions of Article 31B, Section 7(a), prior to Chapter 491, Laws of Maryland, 1971, and as amended by that Chapter, do not require Patuxent Institution to submit its formal diagnostic report to the referring court within the time set forth in Article 31B, Section 7(a), with respect to individuals referred to Patuxent Institution for diagnosis and evaluation who refuse to submit to the personal evaluation process required by Article 31B, Section 7(a);. ..” 3. “. . . the failure of Patuxent Institution to submit its formal diagnostic report within the time set forth in Article 31B, Section 7(a), does not require the transfer of those persons from Patuxent Institution to the Division of Corrections of the Department of Public Safety and Correctional services;. . .” 4. “. . . a formal diagnostic evaluation pursuant to Article 31B, Section 7(a), made and sent to the referring court subsequent to the six month period set forth in Article 31B, Section 7(a), with respect to an individual who has refused to submit to the personal evaluation process required by Article 31B, ³⁴¹ Section 7(a), is not invalid if made more than six months after such individual’s transfer to Patuxent Institution . . . .” The appellant Booker filed a timely appeal to this Court from the decree of January 10. We have concluded that the language in Art. 31B, § 7(a), as amended by Chapter 491 of the Laws of 1971, is directory and not mandatory.

The relevant provisions of § 7(a) of Art. 31B, both before and after the amendment by Chapter 491 of the Laws of 1971, effective July 1, 1971, are set out in the above opinion. It is important to note that the critical words, “They shall state their findings in a written report addressed to the Court, no later than six months from the date said person was received in the Institution for examination, ” were not changed by the amendatory legislation. The last clause was changed to shorten the reporting time for a person referred to Patuxent near the end of his original criminal sentence. The title to Chapter 491 indicated the legislative intent to disallow an examination if the person was within three months of the expiration of his sentence and to change the time within which the report could be made to the court for persons who cooperated in the diagnostic procedure.

It should also be observed that the General Assembly did not amend that part of § 6(e) which states that persons may be retained at Patuxent “. . . until such time as the procedures of this subtitle for the determination of whether or not said person is a defective delinquent have been completed. . . .” In State v. Musgrove, 241 Md. 521 , 217 A. 2d 247 (1966), we indicated that the language of § 7(a) — “They shall state their findings,” etc. — was directory and not mandatory. Judge Horney, for the Court, stated: “Although § 7(a) of Article 31B provides that the examining physician, psychiatrist and psychologist shall state their findings in a written report to the court within six months or before the expiration of the sentence whichever last occurs, we are of the opinion that the order of court referring a person to ³⁴² Patuxent for an examination until such time as the procedures for determining whether or not such person is a defective delinquent have been completed could not be defeated by the refusal of such person to submit to the examination required by § 7(a) if the Patuxent staff cannot make its determination without it. It is clear that a person cannot complain of the action, or inaction, of others when he is the cause of the delay that ensues. State v. Murdock, 235 Md. 116 , 200 A. 2d 666 (1964); Harris v. State, 194 Md. 288 , 71 A. 2d 36 (1950).

Moreover, failure to comply with filing requirements is not always fatal. In Hamilton v. State, 225 Md. 302 , 170 A. 2d 192 (1961), it was said that the provisions of Article 59 requiring a determination in advance of trial on the merits as to whether the defendant had sufficient mental capacity to participate in his defense were procedural and not jurisdictional. It has even been held that constitutional requirements as to filing decisions within a specified time are directory and procedural rather than mandatory or jurisdictional. Snyder v. Cearfoss, 186 Md. 360 , 46 A. 2d 607 (1946); Myers v. State, 218 Md. 49 , 145 A. 2d 228 (1958), cert. den. 359 U. S. 945 , 79 S. Ct. 731 , 3 L.Ed.2d 678 (1959).” 241 Md. at 532 , 217 A. 2d at 252 .

Our holding in Musgrove was that the State had no right of appeal to this Court in that case from the action of the trial judge in granting the writ of habeas corpus, none of the statutory grounds for appeal by the State to this Court being present; but we also construed § 7(a), stating: “If this appeal was an ordinary one, then what has been said above would be an end of the matter. But because the appeal presents substantial questions of extraordinary public importance and concern, we are constrained to express our opinion with regard to them. See Kardy v. Shook, J., 237 Md. 524 , 207 A. 2d 83 (1965), and cases cited ³⁴³ therein.” (Emphasis supplied) 241 Md. at 529-30 , 217 A. 2d at 251 . We obviously intended that our construction of the language of § 7(a) (as directory and not mandatory) should be followed by the lower courts of this State; and this has been done, except by Judge Shearin in the present case.

See, e.g., cases decided by the Court of Special Appeals: Mullen v. Director, 6 Md. App. 120, 124 , 250 A. 2d 281, 283 (1969); Knox v. Director, 1 Md. App. 678, 680 , 232 A. 2d 824, 825 (1967); and Wise v. Director, 1 Md. App. 418, 422 , 230 A. 2d 692, 694 (1967), and cases decided by the nisi prius courts: State v. Johnson, No. 1774 Criminal Trials, Circuit Court for Allegany County, Memorandum Opinion and Order by Judge James S. Getty, dated November