State v. Runkles

CHARLES E. ORTH, Jr., Judge, Specially Assigned. I Several years ago two happenings inflamed the public and gave serious concern to Maryland law enforcement authorities. An Anne Arundel County couple sold their child for $3,500 and three ounces of cocaine. A Pennsylvania couple, through an advertisement in a Baltimore newspaper, offered to place their child for adoption upon payment of compensation.

Maryland Code (1984, 1991 RepLVol.) § 5-327 of the Family Law Article (FL), under the heading “Prohibited compensation,” in effect at the time of the happenings and today, declares in subsection (a)(1): An agency, institution, or individual who renders any service in connection with the placement of an individual for adoption may not charge or receive from or on behalf of either the natural- parent of the individual to be ³⁸⁷ adopted, or from or on behalf of the individual who is adopting the individual, any compensation for the placement. Subsection (a)(2) provides that [t]his subsection does not prohibit the payment, by any interested person, of reasonable and customary charges or fees for hospital or medical or legal services. Subsection (b) exempts the Social Services Administration from subsection (a)(1) as to reimbursement for certain costs connected with adoption. Subsection (c) calls for the State’s Attorney to prosecute any violation of the section.

Subsection (d) makes a person who violates the section guilty of a misdemeanor and subjects a violator upon conviction to “a fine not exceeding $100 or imprisonment not exceeding 3 months, or both, for each offense.” 1 Prosecution for the sale of the child by the Anne Arundel Couple proceeded under FL § 5-327 in the Circuit Court for Anne Arundel County. 2 The judge held that the sale was not within the contemplation of the statute. He dismissed the case. The adoption advertisement was pursued in Pennsylvania with the assistance of Maryland enforcement authorities. A conviction was obtained under a Pennsylvania law comparable to that of Maryland, but authorizing a much harsher penalty than does the law of this State proscribing such conduct.

The Maryland law enforcement ³⁸⁸ authorities were disturbed because the Maryland statute called for a much more lenient penalty. The public clamor resulting from the dismissal of the prosecution for the sale of the child, and the concern regarding the adequacy of the existing law, led to the enactment of remedial legislation by the General Assembly of Maryland. Acts 1989, ch. 300 (Senate Bill 58) appears in the Maryland Code (1957, 1992 Repl.Vol.). Article 27, § 35C, under the heading “Child Selling.” It declares, in subsection (a): A person may not sell, barter, or trade, or offer to sell, barter, or trade a child for money or property, either real or personal, or anything else of value.

Subsection (b) makes a person who violates the section guilty of a misdemeanor and on conviction subjects the person to “a fine not exceeding $10,000 or imprisonment in the penitentiary not exceeding five years or both for each offense.” 3 II Shortly .after the effective date of Article 27, § 35C, the State called upon the new statute in a criminal information filed in the Circuit Court for Carroll County. The circum ³⁸⁹ stances which prompted the information were brought out at the trial. Involved were Jason Seymour, a child, six years of age; JoAnn Bauerlien, the child's mother; Warren Seymour, the child’s grandfather; Allen Runkles, the live-in boyfriend of the child’s mother; Lanny Harchenhorn, attorney at law, representing the grandfather. The second count of the information charged that Runkles on or about the 18th day of August, 1989, at [Carroll] County ... did then and there sell/barter/trade/offer to sell/offer to barter and offer to trade a child, to wit: Jason Seymour, for money/real property/personal property and anything of value, in violation of Article 27, section 35B of the Annotated Code of Maryland____ 4 Runkles waived a trial by jury and elected to be tried on an agreed statement of facts.

We give an apergu of the statement. The child, his three year old brother, and Runkles lived with the mother, the child’s legal custodian as his natural parent. The grandfather had attempted, unsuccessfully, to obtain custody of the child in the past. Runkles approached the grandfather with the proposition that for $4,000 he would persuade the mother to grant custody of the child to the grandfather.

The plan, as devised by Runkles, was that the grandfather’s attorney would prepare a “Consent to Custody Order” for the transfer of the custody of the child to the grandfather. Runkles would persuade the mother to sign the order, so that when the grandfather came to the mother’s residence for his usual visit to see the child, the mother would execute the consent order. Then, out of the presence of the mother, Runkles would turn the executed ³⁹⁰ order over to the grandfather upon payment of $4,000. The grandfather had his attorney prepare the order and brought it with him on his visit to see the child.

Sure enough, without further ado, the mother signed it. Runkles and the grandfather left the house and walked toward the garage. Out of the presence of the mother, Runkles turned over the custody papers to the grandfather, and the grandfather gave Runkles a white envelope. Runkles reentered the house, holding the white envelope.

After hearing Runkles’s proposition, however, the grandfather had gone to the police. By means of a covert surveillance, the police observed the entire transaction between Runkles and the grandfather. When Runkles reentered the house, the police pounced. The white envelope contained $4,000.

Runkles was arrested. It was conceded at the very beginning of the agreed statement of facts that the grandfather paid Runkles $4,000 “for persuading [the mother] into signing custody of the child over to the [grandfather].” The mother admitted that she was so persuaded by Runkles, but she disavowed any knowledge of the payment of money. She said that she was “having trouble with [the child] — having difficulties with [the child] and her younger son____” The child “had just recently hurt [his brother].” The mother told the police that “she just couldn’t take it anymore and that the child would be better off” with the grandfather. That was why, she explained, “she signed the custody over.” After hearing the statement of facts, the trial judge denied Runkles’s motion for a judgment of acquittal.

Counsel argued on the merits and were in agreement that “it is a new statute and there’s absolutely no law.” The judge requested counsel to submit written memoranda, and held his decision sub curia. Upon consideration of the memoranda, the judge issued a “Memorandum Opinion.” He found Runkles guilty of violating the “child selling” statute, Art. 27, § 35C. The judge observed: ³⁹¹ [Runkles] argues that [the statute] does not extend to this scenario, where [he] promised to have the mother of the child “sign over” custody for the sum of $4,000. He continued: The State contends that the statute was not intended to be limited to only adoption situations.

He ruled: The court is in agreement with the State’s position. The act of signing over custody in this matter is tantamount to the beginning of adoption proceedings and no less significant. He declaimed: The child is still being traded for money! Runkles appealed.

His only contention was that the evidence was not sufficient to sustain the conviction. Two judges of the three judge panel of the Court of Special Appeals agreed with him and reversed the judgment of the circuit court. Runkles v. State, 87 Md.App. 492 , 590 A.2d 552 (1991). As we construe the opinion of the court, the crux of the decision was that Art. 27, § 35C applies only to adoption proceedings.

Inasmuch as Runkles’s conduct did not relate to adoption of the child, the evidence was deemed to be insufficient. The third member of the panel disagreed. He would affirm, he said, because he believed that the statute was not limited to adoption proceedings but reached “any commercial trafficking in children.” Id. at 502, 590 A.2d 552 . He thought that the evidence was sufficient to establish that the conduct of Runkles violated the statute.

Id. at 502-508 , 590 A.2d 552 (Moylan, J., dissenting). The State filed a petition for the issuance of a writ of certiorari. It asked us to decide whether the Court of Special Appeals err[ed] in concluding that Maryland’s child selling statute is limited to proscribing for-profit adoptions, as opposed to any for-profit exchange of child custody. ³⁹² We granted the petition and ordered the issuance of the writ. Ill A Although terse and concise in phrasing, and, at first glance, not defiled by tergiversation, the reach of Art. 27, § 35C is questioned.

We do not find, however, that the statute is so clear on its face as to make unnecessary further inquiry concerning the intent of the Legislature. There is a significant difference of opinion among those learned in the law as to exactly what the statute covers. Therefore, once again we are called upon to probe the mind of the Legislature to determine the legislative intent. Over one thousand Maryland appellate opinions since 1965 have addressed “one aspect or another of legislative intent or history, statutory interpretation or construction.” See M. Miller, Ghost Hunting: Finding Legislative Intent in Maryland, a Checklist of Sources p. 2 (1984) (unpublished manuscript available in the Maryland State Library).

We are guided by certain rules in bringing the ghost of legislative intent to bay. We have announced, explicated and applied those rules so often in the past that there is no point in repeating them. 5 We shall apply them once again in determining the legislative intent here, emphasizing that our endeavor is always to seek out the legislative purpose, the general aim or policy, the ends to be accomplished, the evils to be redressed by a particular enactment. Morris v. Prince George’s County, 319 Md. 597, 603-604 , 573 A.2d 1346 (1990). We cautioned in Kaczorowski v. City ³⁹³ of Baltimore, 309 Md. 505, 516 , 525 A.2d 628 (1987), quoting Potter v. Bethesda Fire Department, 309 Md. 347, 353 , 524 A.2d 61 (1987) that “ ‘results that are unreasonable, illogical or inconsistent with common sense should be avoided____’ ” And we declared in Wilde v. Swanson, 314 Md. 80, 92 , 548 A.2d 837 (1988) that we are never precluded from consulting legislative history as part of the process of determining the legislative purpose or goal [of the law].

B We seek help from the legislative history of Art. 27, § 35C. We have perused all of the items in the legislative file on SB 58, the bill which became Acts 1989, ch. 300 and was codified as § 35C of Art. 27. They provide an insight into the evolution of the statute. The file contained copies of (1) newspaper clippings reporting the two incidents of “child selling” and stating that “outrage grows over penalties for baby sales.” The articles noted that authorities were demanding that harsher punishment be authorized.

(2) a letter from the Deputy State’s Attorney for Baltimore County to Senator Paula Hollinger stating that more severe penalties for violating FL § 5-327 were “sorely needed” and requesting that she sponsor legislation to that effect. Enclosed were copies of proposed legislation as drafted by the Deputy State’s Attorney and by the Maryland State’s Attorneys’ Association. Both drafts called for the penalty permitted by FL § 5-327 to be increased to a fine not exceeding $10,000 and imprisonment not exceeding 5 years, or both. The prosecutor said that he and the State’s Attorney had discussed the matter “in light of the recent case of ‘baby selling’ involving a Maryland ‘broker’ and a Pennsylvania ‘baby seller’, the case having been initially investigated by Maryland law enforcement officers as a result of an ad in a local publication.” ³⁹⁴ (3) a letter from Senator Hollinger to the Department of Legislative Reference enclosing a copy of the bill prepared by the Deputy State’s Attorney for Baltimore County and requesting that legislation be drafted for submission to the 1989 session of the General Assembly “incorporating this language.” (4) a transcript of the testimony of Senator Hollinger before the Senate Judicial Proceedings Committee on “Senate Bill 58, Adoption — Prohibited Compensation— Penalty.” She told the committee that it “stiffens the penalty for natural parents, or a broker attempting to gain illegal compensation in return for allowing adoption of their child.” She called attention to the dismissal of the Anne Arundel County case and the advertisement in a Baltimore newspaper by a Pennsylvania couple “asking for compensation in exchange for their baby.” She said, “State Police together with Pennsylvania authorities agreed to buy the baby for $30,000.

The exchange was made in Pennsylvania so the couple is being tried there. Had the trial been held in Baltimore County and the couple found guilty, their maximum fine would be only $100 and/or a maximum 3 month jail sentence.” She declaimed, “Selling a baby on the open market is a practice which must be stopped and the only way to stop it is to increase the penalty.” She asked for a favorable report on SB 58. (5) a “Bill Analysis” on SB 58 by the Committee Report System of the Department of Legislative Reference. It summarized the bill: This bill increases the penalties for the misdemeanor of charging or receiving prohibited compensation in connection with an adoption.

The bill increases the maximum fine from $100 to $10,000 and increases the maximum prison term of imprisonment from 3 months to 5 years. The analysis gave the bill’s background: Under current law, the penalty for the misdemeanor of charging or receiving prohibited compensation in con ³⁹⁵ nection with an adoption is a fine of up to $100, a prison term of up to 3 months, or both. The increase in penalties is intended to appropriately address the seriousness of the offense of selling or brokering the sale of a child and to bring Maryland’s penalties in line with those of its sister state, Pennsylvania. (6) a copy of a letter from the executive secretary of the Maryland Judicial Conference informing Senator Walter M. Baker, Chairman of the Senate Judicial Proceedings Committee, that the executive committee of the conference “enthusiastically supported SB 58 ...” and that it “favors severe penalties for those who violate the laws concerning compensation in adoption cases.” In handwriting on the letter appears “Concurrences 4/5/89.” (7) a copy of a letter from the Department of Human Resources informing Senator Baker that although SB 58 “will have no direct impact on local department practice ... increasing the penalty, for ‘baby selling’ ... is certainly in the best interest of children, of adoptive parents, and even of birth parents.” The letter concluded, “It is something the Department has been interested in seeing happen for years.” (8) a document addressed to the Senate Judicial Proceedings Committee stating that the position of the Department of Human Resources as to SB 58 was “Support,” and repeating the language in the Department’s letter to Senator Baker.

(9) an unsigned, undated, handwritten document entitled “Explanation of Concurrence.” It reads: SB 58 — Adoption—Prohibited Compensation — Penalty Recommendation: Concur Amendments #1 and 2 Technical Amendment #3 This strikes the original language of the bill and substitutes language expressly prohibiting baby selling— ³⁹⁶ (The amendment addresses the concerns of Senators Cade and Jimeno about the baby selling case that was dismissed in Anne Arundel County — I checked with both of them.) Apparently, the document was from Senator Baker. (10) SB 58 as originally drafted and as amended and passed. As first drafted, the bill merely increased the penalty authorized by FL § 5-327(d). Section (1) of the bill was thrice amended.

Amendment (1) changed the title of the bill from “An ACT concerning Adoption— Prohibited Compensation — Penalty” to “An ACT Concerning Children — Sale—Barter, or Trade — Penalty.” It also changed the purposes of the bill. As originally drafted, it stated that it was “for the purpose of altering the penalties for charging or receiving prohibited compensation in connection with an adoption.” As amended the purposes of the bill were said to be to make “it a misdemeanor subject to certain penalties for a person to sell, barter, or trade or offer to sell, barter or trade a child for money, property, or anything of value; and generally relating to prohibitions against a sale, barter, or trade or an offer to sell, barter, or trade a child for anything of value; and generally relating to baby selling and baby brokering.” By amendment (2) the statute was taken out of the Family Law Article and added to Article 27, Crimes and Punishments as § 35B (later § 35C, see note 3, supra) “under the new subheading ‘Child Selling.’ ” Amendment (3) struck all the provisions of FL § 5-327(a), (b), (c) and (d) and substituted in lieu thereof the provisions of Art. 27, § 35C(a) and (b) as presently written. Section (2) of the bill provided that it takes effect 1 July 1989. Stamped on copies of the amended bill were statements indicating that the amendments were checked by the Department of Legislative Reference and that the bill passed the House and the Senate.

(11) a Floor Report by the Department of Legislative Reference setting out a summary of the bill: ³⁹⁷ This bill increases the penalties for the misdemeanor of charging or receiving prohibited compensation in connection with an adoption. The bill increases the maximum fine from $100 to $10,000 and increases the maximum prison term of imprisonment from 3 months to 5 years. 6 The bill, as amended, also prohibits a natural or adoptive parent, or anyone acting on behalf of the parent, from either offering to or actually selling, bartering, or trading the parent’s child for money, property, or anything else of value. A violation of this prohibition would be a misdemeanor subject to the same penalties for baby brokering. The Report discussed the three amendments.

It observed that the third amendment prohibits a natural or an adoptive parent or anyone acting on behalf of a parent from selling, bartering, or trading or offering to sell, barter, or trade the parent’s child for money, property or anything else of value. The amendment is intended to address a concern raised by a representative of the Maryland State’s Attorneys’ Association that current law does not explicitly prohibit baby selling by a parent, (emphasis added). (12) a letter from a constituent to Senator Baker voicing support of the bill. (13) a revised Fiscal Note from the Department of Fiscal Services, Division of Fiscal Research.

It indicated that the amended bill would have little effect on State revenues and no effect on local revenues and State and local expenditures. ³⁹⁸ (14) a letter from the Attorney General of Maryland to the Governor stating that he approved SB 58 for constitutionality and legal sufficiency. (15) a transcript of the testimony of Senator Hollinger before the House Judiciary Committee expressing her support of the amended bill. She referred to the baby selling incident in Anne Arundel County and the dismissal of the case. She said, “If SB 58 had been enacted, language in the law would have been adequate____” C The legislative history of SB 58 trees the ghost of legislative intent which haunted Art. 27, § 35C and lays it to rest.

The history depicts clearly how the intent at the time the bill was conceived had been transformed into an entirely different intent by the time the bill was delivered. There is no question that the original objective of the bill was to do no more than increase the permissible penalty for violation of FL § 5-327 prohibiting compensation for adoption. The Deputy State's Attorney for Baltimore County, who initiated the crusade, was motivated primarily by the action of the Pennsylvania couple which plainly constituted a violation of the adoption compensation statute. So he was focused on FL § 5-327 and disturbed by the lenient penalty it authorized.

He proposed a harsher penalty for violation of the statute. For a time, everyone enthusiastically went along with his proposal, including the bill’s original sponsor Senator Hollinger, (Senator Barbara Hoffman was later added as a sponsor), the Maryland State’s Attorneys’ Association, and the Maryland Judicial Conference. As the bill traveled the road to passage, however, there came the realization that it did not accomplish what was actually desired — a prohibition against “baby selling.” As Senator Hollinger observed in her testimony before the Senate Judicial Proceedings Committee, “Selling a baby on the open market is a practice which must be stopped....” And it dawned on those concerned that “the only way to stop it,” was not, as Senator Hollinger at first suggested, “to in ³⁹⁹ crease the penalty” authorized by FL § 5-327. No matter what the penalty may have been for that statute, the Anne Arundel County couple, who sold their child for money and dope, could not have been found guilty under FL § 5-327 under the ruling of the circuit court.

Baby selling, other than as it may relate to adoption, was simply not within the ambit of FL § 5-327. So SB 58 was amended and the amendments were draconian. All of the provisions of the original draft were jettisoned; the bill was rewritten in its entirety. The amendments divorced the bill from FL § 5-327; they severed any and all connections with that statute; they made plain that they washed out any indication or suggestion that the bill was intended to supplement or complement, or relate to, or affect in any way, the adoption-compensation statute.

The amendments removed the bill from the Family Law Article and placed it in the Crimes and Punishments Article. The fact is that the amendments not only resulted in entirely new provisions, but in the creation of an entirely new crime, aptly titled “Child Selling.” We remind that the “Explanation of Concurrence” stated (see supra, document 9) that the third amendment, going to the substance of the bill, strikes the original language of the bill and substitutes language expressly