State v. Wiegmann

CATHELL, Judge. This case presents the issues of the authority of masters in domestic cases and the continued viability of the common law ⁵⁸⁸ rule permitting individuals illegally arrested to resist such an arrest. We hold that under the Maryland Rules, masters have no authority to order an arrest pending an entry of a judicial order in accordance with the master’s recommendations of contempt. Furthermore, we decline to abolish the common law rule of the right to resist an unlawful arrest because such an action is a task better left to legislative consideration.

I. Facts The facts in this case are not in dispute. Kevin Joseph Wiegmann, respondent, appeared without counsel at a contempt hearing in the Circuit Court for Howard County before Master Elaine Patrick on September 21, 1995. The contempt hearing was being held in connection with respondent’s failure to pay court-ordered child support. At the conclusion of the hearing, Master Patrick determined that respondent was in contempt.

We shall set forth a portion of the redacted transcript in that hearing, as modified by Judge Hollander, writing for the Court of Special Appeals in its opinion below: [MASTER PATRICK]: Based on the evidence I’ve heard today, it is quite clear to me that the defendant is in contempt. So I am going to hold you in contempt. I’m going to sentence you to forty-five (45) days’ incarceration. I’m going to set a purge figure of Thirty-Five Hundred Dollars ($ 3,500.00), Mr. Wiegmann. ■ That means, if you pay the thirty-five hundred dollars, you do not have to serve the time.

That’s the difference between civil and criminal contempt.[ 1 ] ⁵⁸⁹ In light of your claim to live in Georgia, I am going to recommend that the incarceration be immediate from the courtroom, and that an immediate Order be entered. I’m going to enter a judgment for the arrears, which is Fourteen Thousand, Nine Hundred and Ninety-Three Dollars and Sixty-Five Cents ($ 14,993.65). Payments through the Department of Social Services, secured by a wage lien. Future service by first-class mail.

Mr. Wiegmann: Your Honor? The Master: Yes, Mr. Wiegmann? Mr. Wiegmann: Ah, I want to, like to file my exceptions now. The Master: Mr. Wiegmann, you can file those prior to your exceptions.

I’m going to recommend that an immediate order be entered, so we can— Mr. Wiegmann: Also, a motion for stay of sentence pending the outcome of the exceptions hearing. And a request for filing fees and costs be paid by the State for my transcripts and other related fees, since I was not—, Public Defender’s—. (To the Deputy) Hold on a second. Hold on a second.

Get, get away from me until I’m done. The Master: Excuse me, Mr. Wiegmann. This is not up to you at this point. The Deputy: Put your hands behind your back.

The Master: Cooperate with the deputies, Mr. Wiegmann. Wiegmann v. State, 118 Md.App. 317, 322-23 , 702 A.2d 928, 931 (1997). At that point, a melee ensued. One of the deputies on duty in the courtroom testified it appeared respondent was going to strike the other deputy, so he grabbed respondent’s arm.

Respondent struck that deputy in the jaw. Respondent then attempted to run out of the courtroom, but the two deputies grabbed him and all three fell down. Fearful that respondent was going to grab for one of their guns, one of the deputies yelled to Master Patrick to hit the panic alarm button and then sprayed respondent in the face with pepper spray. Respondent finally was handcuffed and taken into custody. ⁵⁹⁰ As a result of the courtroom brawl, respondent was charged with resisting arrest and assault and battery.

He was acquitted by a jury in the Circuit Court for Howard County of the resisting arrest charge, but convicted of battery. The trial court sentenced respondent to ninety days of incarceration, with all but ten days suspended, and fifteen months of probation. Over the dissent of Chief Judge Murphy, the Court of Special Appeals vacated respondent’s conviction and remanded the case to the circuit court. In her excellently written and thorough opinion, Judge Hollander held that respondent’s arrest was illegal because masters have no implicit or express authority to order arrests, that respondent’s warrantless arrest was not a valid arrest pursuant to a flawed warrant issued by a judicial officer, and that the circuit court erred in refusing to instruct the jury as to the conditions under which one is entitled to resist an arrest.

We granted the State’s petition for writ of certiorari to consider the important issues presented by this case. Petitioner presents the following questions for our review: 1. Is a defendant who resists an arrest in a courtroom pursuant to a master’s order precluded from arguing that he was entitled to resist the arrest? 2. Should this Court abolish the common law right to resist an illegal warrantless arrest?

We shall affirm the Court of Special Appeals.

II

Discussion A. Authority of Masters As we noted, Judge Hollander wrote an excellent opinion for the Court of Special Appeals with regards to the authority of masters. The opinion was thoroughly researched and defined clearly the law in Maryland. In the interest of conserving judicial resources, we see no point in rewriting or paraphrasing that part of the opinion of the Court of Special Appeals on this issue when we would reach the same results for essentially the same reasons. Accordingly, we shall adopt ⁵⁹¹ portions of the opinion of the Court of Special Appeals dealing with the authority of masters as restated verbatim, infra, 2 We shall set forth additional points as necessary following our recital of the relevant portions of the opinion in Wiegmann, 118 Md.App. at 334-44 , 702 A.2d at 936-41 (footnotes omitted): 3 We recently observed that “the authority of the master[ ] is limited by the Maryland Rules and the statutes providing for the use of masters in domestic relations cases.” Wise-Jones v. Jones, 117 Md.App. 489, 499 , 700 A.2d 852 (1997).

This suggests that the master’s authority must derive either from a statute or a rule. We look to Maryland Rules 9-207 and 2-541(c), which govern the powers of a domestic master. Pursuant to Rule 9-207(a)(l), matters of contempt for noncompliance are routinely referred by the clerk to a master “as of course,” unless the circuit court directs otherwise. Rule 9-207(a)(l) specifically authorizes a master to preside at a hearing regarding contempt for noncompliance with an order relating to the payment of alimony or child support.

Further, Maryland Rule 9-207(b) provides: “The master shall have the powers provided in Rule 2-541(c) and shall conduct the hearing as provided in Rule 2-541(d).” In turn, Maryland Rule 2-541 (c), states, in part, that a master has the power to regulate all proceedings in the hearing, including the powers to: (1) Direct the issuance of a subpoena to compel the attendance of witnesses and the production of documents or other tangible things; (2) Administer oaths to witnesses; (3) Rule upon the admissibility of evidence; ⁵⁹² (4) Examine witnesses; (5) Convene, continue, and adjourn the hearing, as required; (6) Recommend contempt proceedings or other sanctions to the court; and (7) Make findings of fact and conclusions of law. (Emphasis added). It is patently clear that the rules do not grant express power to a domestic master to hold a litigant against his will after a non-support hearing, although masters are authorized to conduct evidentiary hearings and to make findings of fact and recommendations to the circuit court. Indeed, even Master Patrick agreed that she lacked express authority to arrest appellant.

The State is of the view, however, that the rules do not contain an exhaustive list of the master’s powers. In addition to the explicit powers conferred by Rule 2-541(c), the State asserts that the rule implicitly includes the power to detain, because such power is inherent in the authority conferred upon a master to “regulate all proceedings” at a hearing. It thus posits that the master had implied authority, under Maryland Rule 2-541, to detain appellant for a reasonable period, pending judicial review of the master’s recommendations. Therefore, we must determine if the phrase “regulate all proceedings,” as used in Rule 2-541 (c), confers upon the master the power to hold someone in custody pending judicial review of a master’s recommendation for immediate incarceration.

As we set about to interpret the rule, we must apply the same standards of construction that apply to the interpretation of a statute.... If the rule is ambiguous, we may look to other sources in order to determine the Court of Appeals’s intent. Long [v. State], 343 Md. [662] at 667, 684 A.2d 445 [(1996)]; In re Victor B., 336 Md. at 94, 646 A.2d 1012 ; Leppo v. State Highway Admin., 330 Md. 416, 422 , 624 A.2d 539 (1993). Even if the language of a rule is clear, we may consider extrinsic material that “ ‘fairly bears on the fundamental ⁵⁹³ issue’ ” of the purpose or goal of the rule, Stach [v. Stach], 83 Md.App. [36] at 42, 573 A.2d 409 [(1990)] (quoting Kaczorowski v. Mayor of Baltimore, 309 Md. 505, 515 , 525 A.2d 628 (1987)).

This is because “[o]ur mission is to give the rule a reasonable interpretation in tune with logic and common sense.” In re Victor B., 336 Md. at 94 , 646 A.2d 1012 . Therefore, we may consider the history of a particular rule as an aid to determining the court’s intent. Long, 343 Md. at 668 , 684 A.2d 445 ; Stack, 83 Md.App. at 42 , 573 A.2d 409 . In construing the rule here, we are mindful of the principle that the expression of one thing is generally the exclusion of another.

Long, 343 Md. at 666 , 684 A.2d 445 ; Leppo, 330 Md. at 423 , 624 A.2d 539 . On the other hand, the use of the word “including” suggests that the seven enumerated powers are not exclusive. “Ordinarily, the word ‘including’ means comprising by illustration and not by way of limitation.” Group Health Ass’n v. Blumenthal, 295 Md. 104, 111 , 453 A.2d 1198 (1983); see also Carroll County v. Raymond I. Richardson Found., Inc., 71 Md.App. 434, 441 , 526 A.2d 81 (1987). Nevertheless, the enumerated powers in Rule 2-541(c) are procedural, not substantive. To be sure, the power to arrest is substantive in nature.

We conclude that the rule does not implicitly confer upon the master the power to detain appellant pending judicial review of a master’s recommendation. The construction of the rule urged by the State would engraft upon the rule a meaning not evident from the plain text and would be wholly inconsistent -with the advisory, clerical, and ministerial functions that masters have traditionally performed. Construing the nature of the master’s power under the rule as procedural also comports with the traditional functions of the master. We turn to examine the role of a master and his or her corresponding powers.

A master is not a judicial officer, and the Maryland Constitution does not vest a master with any judicial powers. In re Anderson, 272 Md. 85, 106 , 321 A.2d 516 (1974), cert. denied, 421 U.S. 1000 , 95 S.Ct. 2399 , 44 L.Ed.2d 667 ⁵⁹⁴ (1975); see also Swisher v. Brady, 438 U.S. 204, 209 , 98 S.Ct. 2699, 2703 , 57 L.Ed.2d 705 (1978) (“masters [in Maryland] are entrusted with none of the judicial power of the State”); Lemley v. Lemley, 102 Md.App. 266, 277 , 649 A.2d 1119 (1994) (“[T]he master is not a judge and is not vested with any part of the State’s judicial power.”); Sensabaugh v. Gorday, 90 Md.App. 379, 390 , 600 A.2d 1204 (1992) (“Once a master has recommended a contempt proceeding it is necessary for the court to issue the show cause order because the master does not have the power to issue such orders.”). “Simply put, the Master is a ministerial and not a judicial officer.” Levitt v. Levitt, 79 Md.App. 394, 399 , 556 A.2d 1162 , cert. denied, 316 Md. 549 , 560 A.2d 1118 (1989). In Nnoli v. Nnoli, 101 Md.App. 243 , 646 A.2d 1021 (1994), we observed that a master has historically been an “adviser of the court as to matters of jurisdiction, parties, pleading, proof and in other respects where he may be of assistance to the court.... The duties of the master are of an advisory character only.

He decides nothing, but merely reports to the court the result of his examination of the proceedings, with a suggestion as to the propriety of the court passing a decree.” Id. at 261 n. 5, 646 A.2d 1021 (quoting Edgar G. Miller, Jr. Equity Procedure § 556, at 654-55 (1897)). Thus, a judge “may never delegate away a part of the decision making function to a master—a non-judicial officer.” Wenger v. Wenger, 42 Md.App. 596, 602 , 402 A.2d 94 (1979). Consequently, even when a judge defers to a master’s fact-finding, the judge does not defer to the master’s recommendation as to the appropriate course of action. Id. at 606 , 402 A.2d 94 ; see also Ellis v. Ellis, 19 Md.App. 361, 365 , 311 A.2d 428 (1973).

A master is, however, an officer of the court, appointed by the circuit court; that corut has constitutional authority to make such appointments. Md. Const, art. 4, § 9 (“The Judge, or Judges of any Court, may appoint such officers for their respective Courts as may be found necessary.”); Md. Rule 2-541(a)(3) (“A master serves at the pleasure of ⁵⁹⁵ the appointing court and is an officer of the court in which the referred matter is pending.”). Nevertheless, a master’s status as an “officer of the court” does not confer judicial powers upon the master, such as the authority to hold someone in contempt, to sign a warrant, or to order a police officer to make an arrest. Indeed, “[a] master is not the trial judge.

A master does not replace her or him.” Wise-Jones, 117 Md.App. at 500 , 700 A.2d 852 . Thus, only a judicial officer may issue a warrant. Md. Rule 4-212(d). Because a master is not a judicial officer, and performs only ministerial functions, a construction of the rules that recognizes an implied power to order an arrest would run afoul of constitutional precepts. ... [W]e shall strictly interpret Rule 2-541(c).

Because the rule does not provide express authority to the master to arrest a litigant pending judicial review of the master’s recommendations, we decline to expand the rule to authorize such power by implication.[ 4 ] Under Maryland Rule 9—207(f)(1), a circuit court generally may not enter an order based upon a master’s recommendations until either the time for filing exceptions has expired or, if exceptions have been filed, until the court has ruled on the exceptions. There are two limitations, however. Maryland Rule 9—207(f)(2) provides that, in pendente lite matters, if the master finds that “extraordinary circumstances” exist, the court may direct the entry of an immediate order after reviewing the file or exhibits. Such an order “remains subject to a later determination by the court on exceptions.” Id.

The second exception concerns contempt, authorizing the court to hold a hearing and enter an order of contempt “at any time.” Md. Rule 9—207(f)(3). This provision does not have the limitation that it is subject to later rulings on exceptions. Nevertheless, Master Patrick’s recommenda ⁵⁹⁶ tions of contempt and immediate incarceration clearly were not self-executing. Rather, they were subject to review and implementation by a judge of the circuit court.

Domingues v. Johnson, 323 Md. 486, 491-92 , 593 A.2d 1133 (1991); In re Darryl D., 308 Md. 475 , 477 n. 2, 520 A.2d 712 (1987); see also Md. Rule 9-207; cf. Caldor, Inc. v. Bowden, 330 Md. 632, 658 , 625 A.2d 959 (1993) (construing Md. Rule 911 with respect to juvenile masters). The broad construction of the rule urged upon us by the State is also contrary to the history of the rule. Our review of the minutes from the Court of Appeals Standing Committee on Rules of Practice and Procedure indicates that the Committee was concerned about an unconstitutional delegation of judicial power to domestic masters. At its meeting on April 22, 1977, the Committee discussed Rule 596, the predecessor to Rule 2-541.

It considered Judge William McCullough’s letter to the Reporter dated March 10, 1977, suggesting “the amendment and enlargement of section g.l (Time of Entry of Order—Immediate Order) to permit entry of immediate orders in other than pendente lite cases, including contempt.” Minutes from the Court of Appeals Standing Committee on Rules of Practice and Procedure 3-4 (April 22, 1977). The proposed section g.l provided: g. Time of Entry of Order. 1. Immediate Order.

Subject to the later determination of the court on any exceptions, an order implementing the recommendation of a Master (i) shall be entered immediately in accordance with a recommendation that alimony or child support be awarded, pendente lite, accounting from the date recommended by the Master; and (ii) may be entered immediately, effective as of the date of the order, in accordance with a recommendation that visitation of minor children be awarded pendente lite, or that an existing decree or order be modified as to child visitation. ⁵⁹⁷ The minutes also reflect the following debate concerning Judge McCullough’s suggestion: Mr. [now Judge] Rodowsky stated that he believed Judge McCullough’s ... point was well taken, with respect to immediate orders, and that he proposed inclusion in the second line of subsection g. l(ii) following “order,”, the words “upon a master’s determination of contempt,”. Mr. Myerberg stated that such an amendment would raise a serious constitutional question, and that he believed it unconstitutional for a master to hold a party in contempt. Masters in Baltimore City have no such power. Mr. Owens and Judge McAuliffe agreed that in Montgomery County masters have no power to hold a party in contempt.

Mr. Myerberg asked how a master could hold a party in contempt of an immediate order, if the party had ten days within which to except to the master’s report? ^ Mr. Myerberg stated that masters should have no jurisdiction in either custody or contempt matters, that these issues were too important to allow masters to determine them. The Chairman concurred that masters should not handle contempt matters. Judge Ross stated that in Baltimore City, Lucy Garvey had been handling contempt matters for years, and that it works well. He acknowledged, however, that although the master determines prima facie that a party is in contempt, a judge actually signs the order.

Judge McAuliffe thereupon moved the deletion of subsection c. 4, and the motion was seconded. The Chairman called for a vote, and the motion carried on a vote of eight for to six against. Mr. Myerberg acknowledged that the impact of deleting contempt from a master’s jurisdiction will be tremendous, as it will throw back many cases onto judges, and ⁵⁹⁸ will only delay civil cases further. He reiterated his opinion, however, that it was simply not justice to allow a master to determine contempt. ❖ * * * Mr. Rodowsky stated that the issue should probably be restated; should the determination of contempt be heard only by a judge, or initially by a master, and be heard by a judge only on exception taken to the master’s determination?

There being several suggestions for a recount of the vote on Judge McAuliffe’s motion to delete subsection c. 4, the Chairman called for a recount, which resulted in a vote of four for deletion to 10 against deletion, thereby reversing the prior result. Judge Ross suggested that the proposed rule be referred back to the Subcommittee to draft a further amendment to subsection g. l(ii), or the possible addition of a new subsection g. l(iii) to provide for an immediate hearing on a master’s citation for contempt, so as to negate that a party has ten days to file exceptions, and thus cannot immediately be held in contempt. After some further discussion, the proposed rule was referred back to the Subcommittee for the drafting of an amendment as suggested by Judge Ross. Minutes from the Court of Appeals Standing Committee on Rules of Practice and Procedure 6-8 (April 22, 1977) (emphasis added).

At a subsequent meeting, the Committee approved a new subsection, then denominated Rule 596(g)(2). It provided: “ ‘A hearing on a recommendation by a master that an individual be found in contempt may be held by the court at any time’.” Minutes from the Court of Appeals Standing Committee on Rules of Practice and Procedure 4 (November 19, 1977). Substantially similar language now appears in Maryland Rule 9-207(f)(3), to which we have already referred. ⁵⁹⁹ Petitioner’s main disagreement with the decision below, as to this particular issue, is that under Rule 2-541(c), we should infer that a master has the power to order a deputy sheriff to detain the party the master is recommending be found in contempt “for the short time it takes for a circuit court judge to issue an order in accordance with the master’s recommendation.” To hold otherwise, petitioner avers, would inhibit the master’s authority in controlling the proceedings before him or her. Aside from the directly contrary points of law discussed supra, we believe petitioner’s interpretation unworkable.

For instance, petitioner would permit detention in the “short time” it would take for the master to seek out and find a judge to accept and order the master’s recommendations. Problems would arise, however, if every judge in the courthouse were unavailable because he or she were entrenched in the middle of a trial or other proceeding, if the master’s hearing were being held at an alternative time and all of the judges had left the courthouse for the day and thus were unreachable, or simply if the master could not find a judge within a few minutes. The “short time” it would take to secure a judge’s approval of the master’s recommendations could extend well into several hours as would the detention. Notwithstanding the legal issues presented in this case, this Court also is concerned about the appearances of judicial authority a master may evoke by wearing a judge’s robe and sitting behind the judge’s bench, as did the master in this case.

Although we think it clear from the rules and case law that masters have no judicial authority, the average person embroiled in a domestic matter may not understand the difference between a master and a judge. 5 As officers of the court and not members of the bench, masters should not ⁶⁰⁰ freely don judicial robes because, as we see it, such action imparts to the public the erroneous appearance of judicial power that can lead to what resulted in the case at bar. In concise summation, masters are not judges, nor are they judicial officers. Accordingly, they should not hold themselves out as such. Parties are entitled to understand clearly whether the person before whom they are appearing is a judge.

B. Arrest Not Tantamount to Arrest Pursuant to a Warrant We turn now to petitioner’s next contention, which it unsuccessfully argued before the Court of Special Appeals, that even if masters do not have authority to order an arrest or detention of an individual, respondent’s arrest in this case was “the functional equivalent of an arrest warrant.” As such, the State argues, respondent had no right to resist that arrest under this Court’s holding in Rodgers v. State, 280 Md. 406, 410 , 373 A.2d 944, 946 , cert. denied, 434 U.S. 928 , 98 S.Ct. 412 , 54 L.Ed.2d 287 (1977), which we shall discuss in greater detail, infra. We decline to adopt the State’s reasoning. First, we note that a master, unlike a judicial officer such as a judge or District Court Commissioner, has no part in the process of issuing any warrant. Second, such a decision effectively would permit masters to do what we just said they cannot do: order an arrest.

Third, the deputies’ good faith belief that the master, a non-judicial officer of the court, has the authority to order an arrest cannot transform an unlawful, warrantless arrest into a legal, valid arrest made pursuant to a warrant. The State concedes this point but then persists: True enough, the subjective belief of a sheriff cannot make lawful what would otherwise be unlawful. Nonetheless, such beliefs and actions illustrate why the master’s order should be viewed as analogous to an arrest pursuant to a warrant rather than a warrantless one. Surely if a circuit court judge had ordered a defendant to be detained on her verbal authority, the intermediate appellate court ⁶⁰¹ would not have viewed it as warrantless simply because the warrant was not written.

The situation here is no different. The situation here most certainly is different. A master cannot issue a warrant, written or otherwise. In the present case, the order came from the master, not a magistrate or judge.

Simply because the deputies honestly believed that Master Patrick had the authority to order them to take respondent into custody does not negate the fact that Master Patrick had absolutely no power to give that order. Additionally, without a warrant from a judge, “simple good faith on the part of the arresting officer is not enough.... If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be secure in their persons, houses, papers and effects, only in the discretion of the police.” Terry v. Ohio, 392 U.S. 1, 22 , 88 S.Ct. 1868, 1880 , 20 L.Ed.2d 889 (1968)(quotations and citations omitted). As the Court of Specials Appeals said, “[a] judicially authorized warrant is the cornerstone of the Fourth Amendment, and analogizing the situation in the case sub judice to an arrest pursuant to an invalid warrant denigrates the importance of the warrant to our constitutional framework.” Wiegmann, 118 Md.App. at 347 , 702 A.2d at 943 .

Accordingly, this argument fails. C. Right to Resist an Illegal Arrest Chief Judge Murphy, in his dissent, makes a suggestion that merits serious consideration. This Court recognized in Sugarman v. State, 173 Md. 52, 57 , 195 A. 324 (1937), the longstanding common law rule that “one illegally arrested may use any reasonable means to effect his escape, even to the extent of using such force as is reasonably necessary.” See also Barnhard v. State, 325 Md. 602, 614 , 602 A.2d 701, 707 (1992); Diehl v. State, 294 Md. 466, 479 , 451 A.2d 115, 123 (1982), cert. denied, 460 U.S. 1098 , 103 S.Ct. 1798 , 76 L.Ed.2d 363 (1983) (citing Sugarman, 173 Md. at 57 , 195 A. 324 ); Rodgers, 280 Md. at 410 , 373 A.2d at 946 ; Williams v. State, 204 Md. 55, 64 , 102 A.2d 714, 718 (1954). ⁶⁰² The modern trend, however, has been to limit the privilege of private citizens to resist arrest under certain circumstances. For instance, as we have previously indicated, this Court declined to extend the rule to cases in which an unlawful arrest was made under a facially deficient warrant, effectively carving out an exception to the common law right to resist an illegal arrest.

Rodgers, 280 Md. at 421 , 373 A.2d at 952 . There, this Court stated: “We cannot believe that the General Assembly, having made peace officers agents of the court for the purpose of serving arrest warrants, could have intended that citizens arrested pursuant to such a warrant be free to dispute its validity by doing violence to the officer serving the judicial process.” Id. Relying in part on our reasoning in Rodgers , the Court of Special Appeals extended the Rodgers exception in Barnhard v. State, 86 Md.App. 518, 527-28 , 587 A.2d 561 (1991), aff'd, 325 Md. 602 , 602 A.2d 701 (1992), holding that a person did not have the right to resist an unlawful Terry stop. Similarly, the Court of Special Appeals in State v. Blackman, 94 Md.App. 284 , 617 A.2d 619 (1992), held that the right to resist an arrest does not apply to situations in which the citizen was the subject of an illegal frisk.

There the court stated: Close