Matter of Anderson

Orth, C. J., delivered the opinion of the Court. These appeals present two questions which are not only dispositive of the cases at hand but of substantial significance in the overall administration of juvenile justice. The first question concerns the right of the State to appeal in juvenile proceedings. The second question involves the application to such proceedings of the double jeopardy clause of Amendment V to the Constitution of the United States.

I Petitions against WILLIAM ANDERSON, MICHAEL A. EPPS, LARRY SMITH and DONALD BRADY, appellees, 1 were filed in the Circuit Court of Baltimore City, Division for Juvenile Causes (Juvenile Court). Courts and Judicial Proceedings Article (hereinafter cited as “Courts Art.”) § ³⁴ 3-803 (b). See Maryland Rules 901-905. The parties have stipulated what thereafter occurred: 2 “On May 12, 1972, the case of State of Maryland v. William Anderson, Petition no. 158187, was called for an adjudicatory hearing before Master Theodore Hayes in the Circuit Court of Baltimore City, Division for Juvenile Causes.

At the adjudicatory hearing testimony was presented by the State of Maryland and by William Anderson. At the conclusion of testimony, Master Hayes announced a finding that, based on the evidence before the Court, respondent William Anderson was not delinquent, and submitted a written recommendation to the Honorable Robert I. H. Hammerman, Judge, Circuit Court of Baltimore City, Division for Juvenile Causes, that an order be entered dismissing the juvenile petition.” “On May 16,1973, the case of State of Maryland v. Michael A. Epps, Petition no. 004617, was called for an adjudicatory hearing before Master Paul A. Smith, Jr. in the Circuit Court of Baltimore City, Division for Juvenile Causes. At the adjudicatory hearing testimony was presented by the State of Maryland and by Michael A. Epps. At the conclusion of testimony, Master Smith announced a finding that, based on the evidence before the Court, respondent Michael A. Epps was not delinquent, and submitted a written recommendation to the Honorable Robert I. H. Hammerman, Judge, Circuit Court of Baltimore City, Division for Juvenile Causes, that an order be entered dismissing the juvenile petition.” “On June 20, 1973, the case of State of Maryland v. Larry Smith, Petition no. 003285, was called for an adjudicatory hearing before Master Paul A. Smith, Jr., in the Circuit Court of Baltimore City, Division for Juvenile Causes.

The hearing was recessed on that date prior to completion until June 27, 1973, and was recessed again prior to completion until July 18, 1973 at which time it was completed. At the adjudicatory hearing testimony was presented by the State ³⁵ of Maryland and by Larry Smith. At the conclusion of testimony, Master Smith announced a finding that, based on the evidence before the Court, respondent Larry Smith was not delinquent, and submitted a written recommendation to the Honorable Robert I. H. Hammerman, Judge, Circuit Court of Baltimore City, Division for Juvenile Causes, that an order be entered dismissing the juvenile petition.” “On January 25, 1973, the case of State of Maryland v. Donald Brady, Petition no. 000471, was called for an adjudicatory hearing before Master Bernard Peter, in the Circuit Court of Baltimore City, Division for Juvenile Causes. At the adjudicatory hearing testimony was presented by the State of Maryland.

At the conclusion of the State’s case, counsel for Donald Brady moved to dismiss the petition on the ground that the State’s evidence did not constitute a prima facie case. Master Peter granted the motion and submitted a written recommendation to the Honorable Robert I. H. Hammerman, Judge Circuit Court of Baltimore City, Division for Juvenile Causes that an order be entered dismissing the juvenile petition.” 3 On 16 May 1972 the State filed written exceptions to the master’s finding that the evidence was not sufficient to sustain the charge against Anderson and his recommendation that the case be dismissed. 4 On 26 September Anderson filed a motion to dismiss the exceptions. The crux of the motion was that an adjudicatory hearing before the judge of the juvenile court would put him twice in jeopardy on the matter of his delinquency. He urged ³⁶ that the finding of the master be final.

According to the docket entries in Matter of Anderson, Docket No. 158187, on 13 October there was an “Exception Hearing on Motion to Dismiss” before Hammerman, J., presiding in the Juvenile Court. 5 Ruling on the motion was held sub curia. Memoranda were filed by the parties. There were further hearings on 27 March 1973 and 17 May. On 29 June stipulations of fact were filed and on 1 August the court granted the motion to dismiss the exceptions, and confirmed the recommendation of the master to dismiss the petition.

The State filed exceptions to the findings and recommendation of the master as to Brady on 26 January 1973, as to Epps on 16 May 1973, and as to Smith on 20 July 1973. In each case a motion to dismiss the exceptions was filed, and in each case, following its holding as to Anderson, the court entered an order on 3 August 1973 dismissing the exceptions and confirming the recommendation of the master to dismiss the petition filed against the child. 6 On 7 August the State filed a “Consolidated Appeal” from the order of 1 August as to Anderson and from the orders of 3 August as to Brady, Epps and Smith. 7 II “The right to take an appeal is entirely statutory, and no person or agency may prosecute an appeal unless the right is given by statute.” Subsequent Injury Fund v. Pack, 250 Md. 306, 309 ; State v. Lohss, 19 Md. App. 489 . 8 Prior to 1 January 1974 the right to appeal in juvenile proceedings was set out in Code, Art. 26, § 70-25, under the subtitle “Juvenile ³⁷ Causes”: “An aggrieved party may appeal from any final order, judgment, or decree of the juvenile court to the Court of Special Appeals in the manner prescribed by the Maryland Rules.” In Matter of Waters, 13 Md. App. 95 , footnote 6, at 99, and in Aye v. State, 17 Md. App. 32 , footnote 5, at 36, we suggested by way of obiter dictum that the State had no right of an appeal from a determination of a juvenile court not to waive its jurisdiction. The primary basis of this conclusion was that under Code, Art. 26, § 70-16 (c) as then in effect, only “an order of waiver” was to be considered a final order, terminating the jurisdiction of the juvenile court. If jurisdiction was not waived, the juvenile court, of course, retained its jurisdiction, and the case proceeded under juvenile procedures.

Thus, an order refusing to waive jurisdiction was interlocutory. But we also indicated, and this is what appellees seize upon, that because the definition of “party” in the juvenile cause subtitle, Art. 26, § 70-1 (e), did not include the State, the right of “an aggrieved party” to appeal, did not encompass the State. Since our dictum in Waters and Aye , we have been afforded a new insight into the legislative intent concerning appeals in juvenile causes. Chapter 2, Acts 1973, First Extraordinary Session of the General Assembly of Maryland, repealed the provisions of the Annotated Code of Maryland dealing with courts and the judiciary and re-enacted them with revisions to be codified as the Courts and Judicial Proceedings Article. 9 This was a result of the Governor’s establishment of a Commission to Revise the Annotated Code.

The Governor charged the Commission with the responsibility of a formal revision of the public general laws, including an improved scheme of organization, elimination of obsolete or unconstitutional provisions, resolution of inconsistencies and conflicts in the laws, and ³⁸ the general improvement of language and expression. The laws as re-enacted made, in large measure, only stylistic revisions, and those in which substance appears were, in general, not changes of a major nature. 10 Among the statutes repealed and re-enacted were those involving juvenile causes. Statutes concerning juvenile causes now appear in subtitle 8 of the Courts and Judicial Proceedings Article. The right to appeal in juvenile proceedings no longer appears as a separate section in the Juvenile Causes subtitle; it is now § 12-301, “Appeals from Final Judgments”, subtitle 3, “Review of Decisions of Trial Courts of General Jurisdiction”, Title 12, “Appeals, Certiorari, and Certification of Questions”.

The section reads: “Except as provided in § 12-302, a party may appeal from a final judgment entered in a civil or criminal case by a circuit court. The right of appeal exists from a final judgment entered by a court in the exercise of original, special, limited, statutory jurisdiction, unless in a particular case the right of appeal is expressly denied by law. In a criminal case, the defendant may appeal even though imposition of execution of sentence has been suspended.” 11 ³⁹ We find it clear from the discussion of § 12-301 in the Commission’s Report No. 3 F, pp. 77-78, and the revisor’s note to the section, that the only substantive change intended from the law as it formerly existed was to allow an appeal from a trial court’s exercise of special statutory original jurisdiction, as opposed to common-law original jurisdiction, which appeal, by case law, was previously denied in the absence of express statutory authority. This substantive change did not affect the appeal in juvenile causes because under Code, Art. 26, § 70-25, there existed before the enactment of Courts Art. § 12-301 the right of appeal from a final judgment of a circuit court in the exercise of its special statutory jurisdiction over juvenile causes.

We believe that the Commission in proposing § 12-301, and the Legislature in enacting it, intended no departure from the law concerning appeals in juvenile causes as it previously existed. 12 It follows, therefore, that § 12-301 reflects what Art. 26, § 70-25 provided, the change in language, style and scheme of organization serving merely to clarify as to juvenile causes, the right to appeal. The Court of Appeals said in Welch v. Humphrey, 200 Md. 410 , 417: “It is true that a codification of previously enacted legislation, eliminating repealed laws and systematically arranging the laws by subject matter, becomes an official Code when adopted by the Legislature, and, since it constitutes the latest expression of the legislative will, it controls over all previous expressions on the subject, if the Legislature so provides. However, the principal function of a Code is to reorganize the statutes and ⁴⁰ state them in simpler form. Consequently any changes made in them by a Code are presumed to be for the purpose of clarity rather than change of meaning.

Therefore, even a change in the phraseology of a statute by a codification thereof will not ordinarily modify the law, unless the change is so radical and material that the intention of the Legislature to modify the law appears unmistakably from the language of the Code. Welsh v. Kuntz, 196 Md. 86, 97 , 75 A. 2d 343, 347 .” Thus we can ascertain what former Art. 26, § 70-25 meant by what Courts Art. § 12-301 provides. By providing that “a party may appeal from a final judgment entered in a civil * * * case 13 by a circuit court”, § 12-301 includes a court within the meaning of the Juvenile Causes subtitle. Courts Art. § 3-801, subsections (h) (1) and (h) (2) define court as a circuit court for a county sitting as a juvenile court (except the circuit court for Montgomery County), and the Circuit Court of Baltimore City sitting as a juvenile court.

By providing that the right of appeal exists from a final judgment entered by a court in the exercise of “original, special, limited, statutory jurisdiction”, § 12-301 is applicable to a circuit court, with the Montgomery County exception, exercising jurisdiction over juvenile causes. There being no limitation on the meaning of “party”, and the State as a party in juvenile causes not being within the exceptions designated in § 12-302, the State may appeal from a final judgment entered in a juvenile case by a circuit court. As this was the clear legislative intent in enacting § 12-301, it was the intent of Art. 26, § 70-25. In the light of § 12-301, we recant our dictum in Waters and Aye that the right of an aggrieved party to appeal in juvenile causes does not encompass the State.

We hold that the State had the right to appeal from the orders dismissing the charges against the appellees. The motion to dismiss the appeal is denied. ⁴¹ Ill The threshold question presented on the merits of this consolidated appeal is whether juvenile delinquency proceedings as conducted in Maryland are within the ambit of the double jeopardy clause of the Fifth Amendment to the Constitution of the United States. 14 If they are, we must then determine whether the court below erred in applying the double jeopardy clause to dismiss the petitions filed against the appellees. The Supreme Court has established that a juvenile hearing must measure up to the essentials of due process and fair treatment, insisting, in decisions to that end, that they do not “spell the doom of the juvenile court system or even deprive it of its ‘informality, flexibility, or speed.’ ” McKeiver v. Pennsylvania, 403 U. S. 528, 534 . 15 The Court refused to equate a juvenile proceeding, even the adjudicative phase of it, with a criminal trial. It observed: “If the formalities of the criminal adjudicative process are to be superimposed upon the juvenile court system, there is little need for its separate existence.” 16 Id. at 551 .

Thus, it has not said that all rights constitutionally assured to the ⁴² adult accused of crime also are to be enforced or made available to the juvenile in his delinquency proceeding. 17 But it has held that some of the constitutional requirements attendant upon the state criminal trial have equal application to that part of the state juvenile proceeding that is adjudicative in nature. McKeiver points to six cases that make this apparent — Haley v. Ohio, 332 U. S. 596 ; Gallegos v. Colorado, 370 U. S. 49 ; Kent v. United States, 383 U. S. 541 ; In re Gault, 387 U. S. 1 ; DeBacker v. Brainard, 396 U. S. 28 ; In re Winship, 397 U. S. 358 . It spells out some of the constitutional requirements which apply equally to a state criminal trial and a state adjudicative proceeding — the right to appropriate notice, to counsel, to confrontation and to cross-examination, and the privilege against self-incrimination. Included also is the standard of proof beyond a reasonable doubt. 18 On the other hand, the holding in McKeiver was that “Trial by jury in the juvenile court’s adjudicative stage is not a constitutional requirement.” 403 U. S. at 545 . ⁴³ Thus, it is clear that the juvenile court proceeding has not yet been held by the Supreme Court to be a “criminal prosecution” and also has not yet been regarded as devoid of criminal aspects merely because it has been given the civil label.

McKeiver, 403 U. S., at 541 ; Kent, 383 U. S., at 554 ; Gault, 387 U. S., at 17 ; Winship, 397 U. S., at 365-366 . “Little, indeed, is to be gained by any attempt simplistically to call the juvenile court proceeding either ‘civil’ or ‘criminal’. The Court carefully has avoided this wooden approach.” McKeiver, 403 U. S., at 541 . The Supreme Court has not said whether the double jeopardy clause of the Fifth Amendment applies to state juvenile proceedings, and if we had need of determining now whether the double jeopardy clause attaches to a juvenile adjudicative hearing our task would be “to ascertain the precise impact of the due process requirement”, as was the task of the Supreme Court with respect to trial by jury in McKeiver and in Gault with respect to other claimed rights. Idem.

See Gault, 387 U. S., at 13-14 . 19 For the purpose of decision in this case only, however, and explicitly without determining the point, we assume that juvenile delinquency proceedings as conducted ⁴⁴ in Maryland are within the ambit of the double jeopardy clause of the federal constitution, and, on that assumption, address ourselves to the propriety of the action of the juvenile court. IV The general law provides: “After a petition has been filed and unless jurisdiction has been waived, the court shall hold an adjudicatory hearing.” Courts Art. § 3-829 (a). The Maryland Rules make provision for the scheduling of the adjudicatory hearing, Rule 912 a, call for the State’s Attorney to prepare and present the testimony in behalf of the petitioner in a delinquency case, unless excused by the court, Rule 912 b, require the court upon conclusion of the hearing to make and file a brief statement of the grounds upon which it bases its determination, Rule 912 d 1, and, limit continued detention of the child if a dispositional hearing is not held immediately after adjudication, Rule 912 d 2. Courts Art. § 2-501 (a) authorizes the judges of the circuit court for a county, or the Supreme Bench of Baltimore City to employ masters. 20 Subsection (b) of the section provides that each employee of the court shall perform the duties directed by the judge.

There is no specific authority in the general law for a master to conduct a hearing, nor does Rule 912, which concerns “The Adjudicatory Hearing”, refer to a master. Rule 913, however, entitled “Disposition Hearing”, prescribes in § a 1 that “The judge or master who presided at the adjudicatory hearing shall, wherever possible, preside at the disposition hearing.” The authority for a master to ⁴⁵ conduct an adjudicatory hearing is in Rule 908, dealing with “Hearings — Generally”, under § e, entitled “Masters”. Subsection 1 of § e, bearing the heading “Hearing Before Master” provides: “The master shall hear such cases as may be assigned to him by the court and upon the conclusion of the hearing shall announce his findings and recommendations. All papers relating to the case together with the master’s findings and recommendations shall then be transmitted to the judge.” The Rule continues, subsection 2: “The petitioner or any party may file written exceptions to the master’s findings or recommendations or any part thereof within five (5) days after the hearing.

Exceptions by a petitioner after a delinquency hearing may only be taken by the State’s attorney. The clerk designated by the court, upon the filing of such exceptions, shall notify the petitioner and all parties of the time and place of the hearing before the judge.” Subsection 3 concerns the order of the judge: “In the absence of exceptions, the master’s findings and recommendations shall promptly be confirmed, modified or remanded by the judge. If, within the specified time, exceptions are filed, the judge shall hear the entire matter or such specific matters as set forth in the exceptions de novo." It is the requirement that the judge hear the matter de novo upon filing of exceptions which focusses the double jeopardy issue in the cases before us. As we have indicated, the petition alleging that Anderson was a delin quent child was assigned by the juvenile judge for hearing before a master.

The master reported under date of 12 May 1972 that the Anderson case was “assigned for hearing before me and hearing was held this date. The ⁴⁶ evidence was not sufficient to sustain the charge. It is recommended that the cases be dismissed.” The report was endorsed “Approved: and so ordered” by the juvenile judge the same date. On 16 May the State filed exceptions dated 15 May to the finding of the master and requested the matter be set for hearing before the juvenile judge pursuant to Rule 908 e 2.

On 26 September Anderson moved to dismiss the exceptions giving as his primary reason that Rules 908 e 2 and 908 e 3 were unconstitutional as offensive to the double jeopardy clause of the federal constitution. After the series of hearings we have above described, the juvenile judge concluded that “jeopardy attaches at the outset of a Master’s adjudicatory hearing and that such a hearing which concludes with a finding of the charge not sustained and recommendation for dismissal, has come so close to the point of actual finality that for the purposes of the constitutional guarantee [against double jeopardy] it must be considered as a final adjudication.” 21 We do not see it that way. We believe the juvenile judge was entirely wrong in his concept and application of the double jeopardy clause. The obvious and inescapable effect of the holding of the juvenile judge is to raise the position of a master to the status of a judge of the circuit court and to emasculate the juvenile judge, whose employee the master is, leaving the judge with no control over the master’s findings and with no part to play but to give pro forma endorsement to the master’s recommendations.

Such delegation of the judge’s duties and authority is of a certainty invalid and patently beyond the contemplation of Art. IV of the Maryland Constitution, of the Legislature in authorizing the employment of masters and “other employees necessary to conduct the business of the court”, Courts Art. § 2-501 (a), and of the Court of Appeals in adopting the Rules of Practice and