Harryman v. State

ELDRIDGE, Judge. This case presents the issue of whether Maryland Rule 9-207 permits a circuit court judge to refer to a master a prosecution for criminal contempt based upon the defendant’s failure to pay child support. We shall hold that it does not. I. As the basis for the referral of this criminal case to a master was Rule 9-207, we shall at the outset set forth the pertinent provisions of that rule: “Rule 9-207.

Referral of matters to masters. “a. Referral. (1) As of course. In a court having a master appointed for the purpose, unless the court directs otherwise in a specific case, the clerk shall refer the following matters arising under this Chapter [“Divorce, Annulment and Alimony”] to the master as of course when a hearing has been requested or is required by law: (A) Uncontested divorce, annulment, or alimony actions; (B) Alimony pendente lite; (C) Support of child pendente lite; (D) Support of dependents; (E) Preliminary or pendente lite possession or use of the family home or family-use personal property; (G) Contempt by reason of noncompliance with an order or judgment relating to the payment of ... support ... ⁴⁹⁶ following service of a show cause order upon the person alleged to be in contempt; “(2) By order.

On motion of any party or on its own initiative, the court, by order, may refer to a master any other matter or issue arising under this Chapter that is not triable of right before a jury. “e. Transcript. A transcript shall be ordered and filed as required by Rule 2-541(h)(2). “f. Entry of orders. * * * “(8) Contempt orders.

On the recommendation by the master that an individual be found in contempt, the court may hold a hearing and direct the entry of an order at any time.” Rule 2-541, to which Rule 9-207 makes several references, is the rule which governs the role of masters in civil cases generally, with the exception of juvenile causes. This rule provides, in relevant part, as follows: “(a) Appointment—Compensation. ❖ ❖ ❖ “(3) Officer of the court. A master serves at the pleasure of the appointing court and is an officer of the court in which the referred matter is pending. “(b) Referral of cases. (1) Referral of domestic relations matters to a master as of course shall be in accordance with Rule 9-207. ⁴⁹⁷ “(e) Further proceedings.

(1) Domestic relations cases. In cases referred to a master pursuant to Rule 9-207, the procedures and requirements governing the master’s report, the filing of exceptions, and further judicial proceedings shall be as set forth in that Rule. “(h) Exceptions. “(2) Transcript .... a party who has filed exceptions shall cause to be prepared and transmitted to the court a transcript of so much of the testimony as is necessary to rule on the exceptions. The transcript shall be ordered at the time the exceptions are filed.... The court may dismiss the exceptions of a party who has not complied with this section. “(j) Costs. ...

The costs of any transcript may be included in the costs of the action and assessed among the parties as the court may direct.” Turning to the facts of this case, on October 1, 1997, Andrew Charles Harryman was ordered by the Circuit Court for Howard County to pay $336.19 per month for child support accruing from June 1997, and was further ordered to pay an additional $39 per month against arrears of $4,511.09. On March 5, 1998, the State’s Attorney for Howard County filed a petition in the Circuit Court for Howard County charging Harryman with criminal contempt for failure to comply with the child support order. On the same day, a judge of the Circuit Court issued a show cause order which provided, inter alia, “that the trial of this Petition to Cite for Criminal Contempt be conducted before the Master in Chancery in accordance with the provisions of Rule 9-207(a)(l)(G).” In ⁴⁹⁸ addition, the Circuit Court ordered that Harryman “appear before the Master in Chancery, on the date set by the Court for the trial of this matter, ... and then and there show cause pursuant to the provisions of Rules 15-205 and 15-207, ... why he should not be adjudged guilty of, and punished for, criminal contempt of this Court....” 1 Moreover, the order stated that “any sentence of incarceration imposed as a result of any contempt finding under this Show Cause Order shall be limited to no more than 180 days....” 2 ⁴⁹⁹ On August 26, 1998, the Circuit Court issued a second show cause order for criminal contempt, reiterating the previous order but adding that Harryman had accumulated an arrear-age of $5,855.85 in child support as of February 1998. Harry-man was further ordered to appear before the master in October 1998 “to be advised of his right to counsel and of the date on which he will show cause ... why the relief prayed in the Petition to Cite for Contempt should not be granted.... ” At the October 1998 proceeding, the master informed Har-ryman of his right to counsel and told him to appear for a “merits hearing” in December 1998.

At the “merits hearing,” Harryman was not represented by counsel. When the master questioned him as to why he was not represented by counsel, Harryman explained that he had tried to obtain the services of three private attorneys but could not afford them because he had “[t]oo many bills.” The master stated: “I’m not going to find that you are indigent, and I am going to find that your failure to retain counsel constitutes a waiver by inaction.” 3 The master next informed Harryman that he was facing “a criminal contempt charge” and asked him how he would plead. Harryman pled not guilty, and testified that approximately $86 for child support had been taken out of his pay check every week of the one year he had worked at his current job. As proof of this assertion, he offered his earnings statement for the period ending November 19, 1998.

On cross-examination, the State asked Harryman why, if child support money had been taken out each week for the entire year, the earnings statement showed that only $1501.02 had been taken out as of November 19. Harryman explained that his employer had changed to a new checking system and that the earnings ⁵⁰⁰ statement reflected only the child support taken out since the new checks had been in use. Harryman testified that more money had been taken out over the course of the year but admitted that he did not have any proof with him. In its closing argument, the State contended that the record showed that Harryman failed to prove that he had made any child support payments between the October 1997 order to pay child support and the March 1998 order to show cause.

The master “recommend[ed] a finding of guilty” on the basis that there was a “window of non-payment” between the October 1997 order and February 1998 which overlapped with the period of Harryman’s employment. In its sentencing argument, the State requested that Harryman be sentenced to 180 days’ incarceration, with all but 30 days suspended and the 30 days to be served on work release. The master then informed Harryman that “this is your opportunity for allocution. That is, your opportunity to bring to my attention anything in particular that you wish me to consider with my regard as to sentencing.” Harryman stated only that he was working presently and would ensure that child support payments were taken out of his pay check.

The master noted that, as Harryman’s arrearage had increased to $7,582.86 as of late November 1998, there was “still ... a substantial deficiency in the required payments,” even if she took into account the $1501.02 taken out from Harryman’s recent pay checks. Moreover, she stated that “in terms of sentencing—recommendation as to sentencing, the deficiency is notable in that the defendant was served with the matter—this matter, August 28,1998, so it appears that until the criminal contempt proceeding is served and actually the hearing becomes imminent, there are no payments being made. Then again, with Mr. Harryman’s testimony that he has been employed ... throughout the course of the year, there is really no explanation for this.” The master informed Harryman that she would recommend a sentence of 180 days’ incarceration in the Howard County Detention Center, with all but 45 days suspended and with ⁵⁰¹ those 45 days to be served on work release. The remaining 135 days of the sentence would be suspended in favor of 48 months’ unsupervised probation provided that, inter alia, Har-ryman make monthly child support payments, including payments to make up for his arrearage.

In addition, the master explained to Harryman that he could “purge” as follows: “I’ll recommend a purge of thirty-seven hundred fifty dollars—you’re actually thirty-six hundred seventeen dollars and seventeen cents delinquent at the point Mr. Harryman. That is what should have been paid roughly since this order was established, that has not been paid. You have no right to purge in a criminal contempt case, so I actually don’t have to match the purge up with what is delinquent or what I think you may have the ability to pay like we would have to do in a civil contempt case—-just an opportunity to buy your way out of jail. And that’s the amount it’s going to cost you....

If you pay the thirty-seven fifty, you are released from serving the thir—the forty-five days.” The master summarized her findings of fact and recommendations in a written “Report and Recommendation” issued on December 3, 1998. Harryman timely filed an exception to the master’s recommendation, asserting that “I have recently found my other pay stubs to prove my boss has been taking out my child support since April 1998.” Harryman also requested a transcript of the “merits hearing” as required by Rules 9-207e and 2-541(h)(2). A month later, the State filed a motion to dismiss the exception on the ground that Harryman had failed to pay the court reporter a deposit for the transcript in violation of “Judge Kane’s memo of July 10, 1995, for the processing of exceptions____” 4 Judge Kane then granted the State’s mo ⁵⁰² tion to dismiss Harrymaris exception. On January 21, 1999, the Circuit Court issued an order adjudicating Harryman guilty of criminal contempt.

The order was based entirely on the Master’s report and recommendation. In addition, the order stated that any “proceeding arising from a petition to revoke the probation provided” in the order be “referred, pursuant to Maryland Rule of Procedure 2-541, to Elaine Patrick, Master in Chancery, for trial.” 5 Harryman, pro se, appealed to the Court of Special Appeals. Subsequently, the Office of Public Defender petitioned this Court on Harryman’s behalf to issue a writ of certiorari before any decision by the Court of Special Appeals, to stay the judgment of the Circuit Court for Howard County, and to order Harrymaris immediate release from confinement pending appeal. This Court granted the petition and the requested relief.

Harryman v. State, 353 Md. 268 , 725 A.2d 1067 (1999).

II

Harrymaris petition for a 'writ of certiorari presented the following two questions: “1. Whether a prosecution for criminal contempt for failure to pay child support can be referred validly to a domestic-relations master. “2. Whether petitioner was tried for criminal contempt in violation of his right to counsel.” ⁵⁰³ The case at bar presents an issue of first impression, namely whether a master, who is not a judicial officer, nevertheless has the authority to preside over a criminal prosecution. As we shall hold that masters are not authorized to preside over criminal prosecutions, including criminal contempt proceedings, we need not reach the second question raised by the petitioner.

Moreover, in answering the first question, we need not directly address the serious constitutional issues involved, because the Maryland Rules do not authorize masters to try criminal cases. 6 Harryman contends that neither Rule 9-207 nor Rule 2-541 explicitly authorize masters to preside over criminal contempt prosecutions, even in a master’s limited capacity to report nonbinding findings of fact and conclusions of law, and recommend an order or judgment, subject to the determination of a judge. The State argues, however, that the “plain language” of Rule 9—207(a)(1)(G) “provides that, as a matter of course, a hearing on contempt by reason of noncompliance with an order relating to, among other things, the payment of child support will be heard by a master. There is no limitation on the type of contempt proceedings a master may hear.... “if this Court had wanted to restrict the contempt hearings a master can hear to civil contempts, the rule would have stated that masters can hear civil contempt proceedings. The failure to so provide indicates the intent to allow masters to hear all contempt proceedings, both civil and criminal.” (Respondent’s brief at 8, 10). ⁵⁰⁴ Preliminarily, we note that this Court has recently stated, in the context of constructive civil contempt proceedings presided over by a master and resulting from the defendants’ failure to pay child support, that “whether or not Constitutionally mandated, as a matter of sound judicial policy, incarceration should be ordered only by a judge on a record developed before the judge.” Thrower v. State ex rel.

Bureau of Support Enforcement, 358 Md. 146 , 151 n. 2, 747 A.2d 634 , 637 n. 2 (2000). 7 Maryland law concerning the nature of criminal contempt, and the requirements for criminal contempt prosecutions, have recently been discussed in detail by this Court. See Ashford v. State, 358 Md. 552 , 750 A.2d 35 (2000); Dorsey v. State, 356 Md. 324, 342-344 , 739 A.2d 41, 51-52 (1999). In sum, a prosecution for constructive criminal contempt resembles other criminal prosecutions under Maryland law. For example, unlike in a civil contempt proceeding, in a criminal contempt prosecution (Dorsey, 356 Md. at 343 , 739 A.2d at 51 , quoting State v. Roll and Scholl, 267 Md. 714, 731 , 298 A.2d 867, 877 (1973)), “ ‘additional criminal safeguards are available to [the accused].

The burden of proof is increased, the accused cannot be compelled to testify against himself, he cannot be put in double jeopardy, and, except when a contempt may be dealt with summarily [i.e., direct criminal contempt], the panoply of fundamental due process rights comes into play.’ ” Moreover, Rules 15-205 and 15-208 “largely [treat] constructive criminal contempt like other criminal actions with regard to the initiation of prosecution, waiver of counsel, waiver of jury trial, and bail.” Dorsey, 356 Md. at 343-344 , 739 A.2d at ⁵⁰⁵ 52. In addition, whereas Rule 15-206(a) directs that a “proceeding for constructive civil contempt shall be included in the action in which the alleged contempt occurred,” Rule 15-205(a) mandates that a constructive criminal contempt proceeding “shall be docketed as a separate criminal action.” See, supra, note 1. As in any other criminal prosecution, the burden of proof in a constructive criminal contempt proceeding lies with the State to prove the defendant guilty beyond a reasonable doubt. An examination of the role of masters, as set forth by this Court and the courts of other American jurisdictions, suggests why the State has failed to find a single precedent supporting its argument that a master may preside over a criminal contempt prosecution. 8 In numerous cases, this Court has emphasized that a master is not a judicial officer, and is not vested with any judicial powers under the Maryland Constitution.

See State v. Wiegmann, 350 Md. 585, 590-600 , 714 A.2d 841, 843-848 (1998), and eases there cited. 9 Although the State Constitution does authorize circuit courts to appoint masters as officers of the court, “a master’s status as an ‘officer of the court’ does not confer judicial powers upon the master.... ” Wiegmann, 350 Md. at 595 , 714 A.2d at 845 . 10 Instead, “a master is a ministerial officer” who advises ⁵⁰⁶ and assists a judge. Matter of Anderson, 272 Md. 85, 106 , 321 A.2d 516, 527 (1974), appeal dismissed, 419 U.S. 809 , 95 S.Ct. 21 , 42 L.Ed.2d 35 (1974), cert. denied, 421 U.S. 1000 , 95 S.Ct. 2399 , 44 L.Ed.2d 667 (1975). See also Swisher v. Brady, 438 U.S. 204 , 98 S.Ct. 2699 , 57 L.Ed.2d 705 (1978). As this Court stated in Matter of Anderson, supra, 272 Md. at 101 , 321 A.2d at 525 , there is “nothing new about the concept of a master.” The Anderson opinion explained that the office of master in Maryland and other American jurisdictions derived from the assistants to the chancellor in England who had originally been appointed by the king. 272 Md. at 102 , 321 A.2d at 525 .

In Maryland, masters have continued to act as assistants and advisors to the court exclusively in civil cases: “We have pointed out that, under the Maryland Rules applicable to juvenile cases and under the procedure generally where masters are involved, a master hears evidence and then reports his findings of fact and his recommendations to the chancellor.” 272 Md. at 106 , 321 A.2d at 527 . See also Attorney General v. Johnson, 282 Md. 274 , 288 n. 14, 385 A.2d 57 , 65 n. 14 (1978). 11 Our cases have long held that, although a master’s “ ‘report is only advisory, ... the master’s findings of fact from the evidence are prima facie correct and they will not be disturbed unless determined to be clearly erroneous.’ ” Matter of Anderson, supra, 272 Md. at 102 , 321 A.2d at 525 , quoting Bar Ass’n v. Marshall, 269 Md. 510, 516 , 307 A.2d 677, 680 (1973). The master’s “ultimate conclusions and rec ⁵⁰⁷ ommendations,” however, must be reviewed with an “independent exercise of judgment by the chancellor.” Domingues v. Johnson, 323 Md. 486, 491-492 , 593 A.2d 1133, 1135 (1991). See also Petrini v. Petrini, 336 Md. 453, 472 , 648 A.2d 1016, 1025 (1994); Kirchner v. Caughey, 326 Md. 567, 572 , 606 A.2d 257, 260 (1992).

In other words, although the judge is the “ultimate trier of fact,” the court presumes the master’s findings of fact to be correct and the burden of proof to the contrary is on the objecting party. Matter of Anderson, supra, 272 Md. at 102 , 321 A.2d at 525 , quoting Bar Ass’n v. Marshall, supra, 269 Md. at 516 , 307 A.2d at 680 . This presumption in favor of the master’s factual findings conflicts markedly with the presumption of innocence guaranteed to a criminal defendant. It is true that masters have long presided over juvenile delinquency proceedings, and that “certain of the constitutional rights incident to criminal prosecutions apply to juvenile delinquency proceedings,” but this Court has repeatedly stressed that, in Maryland, such “proceedings are civil rather than criminal in nature.” In re Darryl D., 308 Md. 475, 478 , 520 A.2d 712, 713 (1987).

See also In re Victor B., 336 Md. 85, 90-94 , 646 A.2d 1012, 1014-1016 (1994), and cases there cited. It is precisely because juvenile delinquency proceedings are civil, rather than criminal, in nature that masters may preside over the proceedings, and that juvenile defendants are not afforded the full due process and other constitutional protections afforded criminal defendants. See, e.g., Swisher