Whitaker v. Prince George's County

COUCH, Judge. The present appeal comes to us as a consolidation of three appeals from the Circuit Court for Prince George’s ³⁷¹ County, Maryland (Bowen, J.). All three appeals were consolidated in the Court of Special Appeals by Order dated December 27, 1985. 1 The subject matter of these appeals arose as a result of an investigation conducted by the Prince George’s Police Department into the alleged activities of several business establishments suspected of being houses of prostitution or “bawdyhouses.” 2 We follow with a brief overview of the factual and procedural background leading to the instant appeal. I Appeals No. 1229 and No. 1231 On July 8, 1985, after the investigation had been conducted, Prince George’s County (“County” or “Appellee”) filed in the Circuit Court for Prince George’s County a Bill of Complaint for Injunctive Relief and Ex Parte and Permanent Injunction against Cary Greene and Paul Malone as owners of property located at 11100 Baltimore Boulevard, Beltsville, Maryland, Gerald Whitaker and Faith McCollum as occupants of the premises trading as “JJ.’s Photo Studio” (hereinafter “J.J.’s” or “Photo Studio”) located at ³⁷² the above address, Johnnie Robert Parries as manager of “JJ.’s”, and alleged prostitutes Alison Irene Glenn, Rita Lee Jarboe, Donna Jean Barden, Denise Marie Watts, Laurie Gale Foster, Carmen Milagres Feliciano, Janet Marie Prather, and Margaret Helen Alvey (hereinafter “Appellants”).

The Complaint alleged, inter alia, that JJ.’s operates seven days a week and serves an exclusively male clientele; that, upon entering the Photo Studio, a prospective customer is greeted by several females and asked to select the female of his choice. After choosing a female attendant, the customer is asked to choose a type of session. For a flat half-hour rate of thirty dollars ($30.) or an hourly rate of fifty dollars ($50.), the customer gets a room with a bed for the prescribed period of time. Female employees of the Photo Studio allegedly receive additional income by bargaining with customers for sex acts to be performed by them during the pre-paid “sessions.” Customers pay additional amounts for the aforementioned acts.

Investigations conducted by County police, consisting of surveillance, searches and oral interviews of customers allegedly revealed that only male customers entered the premises, none of whom carried or wore any type of athletic apparel, suntanning apparel or art or photographic equipment. No photographic equipment was found at the establishment as a result of a search of the premises. It was thus alleged that appellants, among others, were involved in various capacities in the operation of a business that was “a blatant house of ill repute, a bawdyhouse ... and a nuisance per se.” The County sought to enjoin appellants, temporarily and permanently, from “conducting, owning, financing, leasing, operating, managing, supervising, or in any manner whatsoever, associating with the house of prostitution which exists as a nuisance per se____” Judge Albert T. Blackwell of the Circuit Court for Prince George’s County signed an Ex Parte Order, Ex Parte In ³⁷³ junction and Order to Show Cause on July 8, 1985 abating the “operation of a house of lewdness, assignation, and prostitution at the subject property by the [appellants]” until a decision could be rendered on the Bill of Complaint for Injunctive Relief and Permanent Injunction. Hearing on the Show Cause order was held on July 29, 1985 before Judge Perry Bowen.

The County presented a variety of witnesses and evidence regarding prostitution, including several County police officers who testified that the subject establishment had been under investigation since 1978 as a bawdyhouse. Judge Bowen issued an oral opinion from the bench indicating that the Ex Parte Injunction would be made permanent, thus enjoining appellants from engaging in prostitution or prostitution related activities in Prince George’s County. This Order was signed and filed on August 7, 1985; it was subsequently posted on the subject establishment. The appellants filed a timely appeal to this Order (Appeal No. 1229).

On August 19, 1985, the County filed a Motion to Cite Defendants for Contempt. The County alleged in its Motion that appellants continued to operate the Photo Studio as a house of lewdness, assignation, and prostitution despite the August 7, 1985 order of court. The action proceeded to hearing on September 26, 1985, where Judge Bowen refused to dismiss the proceedings and denied appellants’ demand for a jury trial. At the conclusion of the hearing, Judge Bowen found appellants to be in willful contempt of court by the continued operation of a bawdyhouse contrary to the August 7, 1985 Order.

Appellants Faith McCollum and Gerald Whitaker were ordered to post bonds guaranteeing that they would not be involved with prostitution or prostitution related activities in Prince George’s County. Appellants Greene and Malone were ordered to post bonds guaranteeing that the subject real property would not be used for a house of lewdness, assignation, and prostitution. Appellants Prather, Watts and Alvey were ordered to post bonds of personal recognizance guaranteeing that they would not engage in prostitution. Appellant Parries was ³⁷⁴ required to post a $10,000 surety bond.

An Order to this effect is dated October 3, 1985. A Notice of Appeal was filed on October 22, 1985 from that Order (Appeal No. 1231). Appeal No. 1230 On July 26, 1985, the County filed a Motion to Cite Defendant [McCollum] for Contempt for continuing to operate a bawdyhouse in violation of two “Orders of Permanent Injunction” dated April 13, 1981. The two Orders enjoined appellant Faith McCollum from being involved in prostitution or prostitution related activities at 11100 Baltimore Boulevard, Beltsville, Maryland, or at any other location in the County.

On August 12, 1985 an Order granting Show Cause was filed by the trial court (Woods, J.); appellant McCollum’s Motion to Strike and Demand for Jury Trial, filed on August 26, was denied by the court (McCullough, J.) after a hearing held on August 30, 1985. At the end of that hearing the proceedings were continued until October 2,1985, over appellant’s objection, for Judge Bowen to hear. Judge Bowen concluded at the end of the October 2 hearing that appellant McCollum was in willful and flagrant contempt of court for violating the Orders issued on April 13, 1981. McCollum was given a six month suspended sentence and ordered to pay a six thousand dollar ($6,000.00) fine to purge herself of contempt.

An Order to this effect was signed on October 9,1985. On October 21, a timely Order of Appeal was entered. We granted the writ of certiorari on our own motion on March 12, 1986 to resolve the questions presented by the consolidated actions. II Assignment of Trial Judge First, we are asked to consider the propriety of the assignment of the underlying actions to Judge Bowen of the Circuit Court for Calvert County by Judge Ernest Loveless, Circuit Administrative Judge of the Seventh Judicial Circuit. ³⁷⁵ Appellants take issue with this assignment by challenging the constitutional validity of Md. Rule 1202(b)(1).

They claim that, in light of Art. IV, § 18(b) of the Maryland Constitution, the Rule impermissibly expands both the number of judges allowed to make assignments and the circumstances in which such assignments are to be made. 3 Appellants conclude, therefore, that the instant assignment of Judge Bowen to the actions was improper. We disagree. Md. Rule 1202(b)(1) was promulgated by this Court in implementation of the constitutional power vested in it under § 18(a) to make rules governing the administration of ³⁷⁶ the trial courts of the State and expressly grants unto a circuit administrative judge the power of assignment within his judicial circuit. “[T]he Circuit Administrative Judge of each of the first seven judicial circuits may assign any judge of his judicial circuit to sit as a judge of the Circuit Court of any county in the judicial circuit, in any specified case or cases or for any specified time.” (emphasis supplied). Md. Rule 1202(b)(1).

As the unambiguous language suggests, the effect of Rule 1202(b)(1) is to provide each circuit administrative judge of each (of the first seven) judicial circuits, under the overall aegis of the Chief Judge of the Court of Appeals, broad powers of assignment. Whether it be by the Court of Appeals directly or the circuit administrative judge as its alter ego in the circuit, this power and authority encompasses all facets of the internal management of our courts. It must be pointed out that a judge of a circuit court is indeed a judge of a judicial circuit of Maryland. See Md. Const, art.

IV, §§ 19-22. Since Judge Bowen was a judge of the Seventh Judicial Circuit of Maryland, of which Calvert County is a part, Md. Const, art. IV, § 19, Judge Loveless as circuit administrative judge of that circuit was not without authority in assigning the proceedings to Judge Bowen. Appellants’ assertions that Rule 1202(b)(1) expands the number of judges allowed to make assignments and the circumstances in which assignments can be made fails to recognize the existence of this deliberate but flexible scheme of internal management set forth by the Rule.

This scheme can be implemented by the Chief Judge of the Court of Appeals, 1202(a)(1), or a circuit administrative judge, 1202(b)(1). In either case, the broad purpose of the rule, i.e., effective internal management and administration of the courts, is met. Further, the scheme set forth in Rule 1202 is not inconsistent with the constitutional grant of authority to the Chief Judge of the Court of Appeals by Art. IV, § 18(b) of ³⁷⁷ our Constitution, since Rule 1202 provides the framework necessary to implement Art. IV, § 18’s chief purpose of providing flexibility to the Maryland judicial system. 4 Baltimore Radio Show, Inc. v. State, 193 Md. 300, 317 , 67 A.2d 497 (1949), cert. denied, 338 U.S. 912 , 70 S.Ct. 252 , 94 L.Ed. 562 (1950) (referring to § 18A, predecessor to present § 18); Brack v. State, 187 Md. 542 , 51 A.2d 171 (1947). In sum, we find no merit to appellants’ contention.

Enjoining the Nuisance Since the keeping of a bawdyhouse or “disorderly house” generally constitutes a criminal offense, 5 Jackson v. State, 176 Md. 399 , 5 A.2d 282 (1939); Lutz v. State, 167 Md. 12 , 172 A. 354 (1934); Rosenberg v. State, 54 Md.App. 673, 681 , 460 A.2d 617 (1983); Md. Code (1957, 1982 Repl.Vol.), Art. 27, §§ 15-17, the question arises as to whether an equitable action to abate or enjoin the existence and maintenance of such an establishment may properly be maintained. Appellants contend that their activities cannot be enjoined merely because they may violate bawdyhouse and prostitution laws; 6 that equitable action cannot lie since adequate remedies at law are available. We see it differently. It is a general rule of law that, where the acts complained of constitute a breach of the criminal law, courts of equity will not for that reason alone take jurisdiction to enjoin the further continuance or prevention of threatened illegal acts.

In re Debs, 158 U.S. 564 , 15 S.Ct. 900 , 39 L.Ed. 1092 (1895); Ruark v. Engineer’s Union, 157 Md. 576 , 146 A. 797 (1929); Dvorine v. Castelberg Corp., 170 Md. 661 , 185 A. 562 (1936). Where, however, the ³⁷⁸ enforcement of the criminal law is merely incidental to the general relief sought and the acts complained against constitute a nuisance or a danger to the public health and public welfare and a more complete remedy is afforded by injunction than by criminal prosecution, a court of equity may, on the request of a duly constituted authority, grant the relief sought by the injunction. See, for example, State v. Ficker, 266 Md. 500, 510 , 295 A.2d 231 (1972); Clark v. Todd, 192 Md. 487, 492 , 64 A.2d 547 (1949); Hamilton v. Whitridge, 11 Md. 128 , 69 Am.Dec. 184 (1857); Stead v. Fortner, 255 Ill. 468 , 99 N.E. 680, 684 (1912); High on Injunctions (4th ed. 1905), § 752, p. 716. See additionally 5 Pomeroy, Equity Jurisprudence, § 1893, p. 4296 (2d ed. 1919); 66 C.J.S. Nuisances § 110 e; 58 Am.Jur.2d Nuisances §§ 142-43 and discussion therein. 7 We think that the keeping, operation and maintenance of a bawdyhouse constitutes such a public nuisance whereby equity jurisdiction would lie to grant appropriate relief.

In Hamilton, 11 Md. 128 , 69 Am.Dec. 184 (1857), the plaintiffs sought to enjoin Margaret Hamilton from occupying and using a recently purchased house as a bordello. She had been thrice convicted of keeping a bawdyhouse in the years 1854 and 1855. In affirming the continuance of the injunction granted at trial, this Court stated: “We are constrained ... to consider the appellant as a person about to open the premises as a house of ill-fame, and the prominent question for decision is, whether the jurisdiction of courts of equity embraces the prohibition of such public nuisances, where the complaint is, that they will, by reason of their close proximity, deprive other persons of the comfortable enjoyment of their property, and greatly depreciate and lessen its value. ³⁷⁹ “Although at law, the remedy in respect to public nuisances is by indictment, and in respect to private ones, by action at the instance of the person injured, yet, in the common law tribunals, redress may be had for damage resulting from public as well as private nuisances. These remedies can only abate or afford compensation for an existing nuisance, and are ineffectual to restrain or prevent such as are threatened or in progress.

Hence there is a jurisdiction in equity to enjoin, whenever the nature of the inquiry is such that it cannot be adequately compensated by damages, or from its continuance or permanent mischief, will occasion a constantly recurring grievance. And as a party injured by a public nuisance may have his action at law for damages thereby sustained, so he may apply for an injunction to prevent such nuisances, if its existence will cause a substantial prejudice to his property, or the reasonable enjoyment thereof.” Id. at 144-46 , 69 Am.Dec. 184 (citations omitted). See City of Bowie v. County Comm’rs, 260 Md. 116, 128 , 271 A.2d 657 (1970). In keeping with what our predecessors said in Hamilton , we believe that the operation of a bawdyhouse constitutes a public nuisance whereby equity jurisdiction would lie to afford a more complete remedy than is obtainable by law.

Accordingly, the trial court had jurisdiction to consider the Bill of Complaint for Injunctive Relief. Challenge of the Searches Appellants allege that they were denied the opportunity to litigate the validity of the searches of the subject establishment conducted by the Prince George’s County Police in connection with the police investigation. 8 They base their argument on the purported applicability of the exclusionary rule to the proceedings at bar. For support, ³⁸⁰ appellants rely in part on Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961), where the Supreme Court made the exclusionary rule applicable to state criminal trials: “Since the Fourth Amendment’s right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth, it is enforceable against them by the same sanction of exclusion as is used against the Federal Government.” Id. at 655 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 . Conceding that Mapp speaks only to application of the exclusionary rule to state criminal proceedings, appellants nonetheless argue that the rule’s applicability should be extended to the present proceedings.

For this proposition, appellants rely on the 1965 case of One Plymouth Sedan v. Pennsylvania, 380 U.S. 693 , 85 S.Ct. 1246 , 14 L.Ed.2d 170 . There, the Supreme Court applied the exclusionary rule in a proceeding for forfeiture of an automobile used in violation of the criminal law. In so doing, the Court expressly relied on the fact that “forfeiture is clearly a penalty for the criminal offense” and “[i]t would be anomalous indeed, under these circumstances, to hold that in the criminal proceeding the illegally seized evidence is excludable, while in the forfeiture proceeding, requiring the determination that the criminal law has been violated, the same evidence should be admissible.” Id. at 701 , 85 S.Ct. at 1251 . See also Boyd v. United States, 116 U.S. 616, 634 , 6 S.Ct. 524, 534 , 29 L.Ed. 746 (1886), where a forfeiture proceeding was characterized as quasi-criminal.

Thus, in effect, appellants ask us to create judicially an extension of the fourth amendment exclusionary rule by holding that evidence obtained by a law enforcement officer (here, a County detective) in good faith reliance on a purportedly defective search and seizure warrant should be inadmissible in a public nuisance action. We decline to do so. ³⁸¹ The exclusionary rule was created and has been applied primarily for the purpose of deterring police invasions of a defendant’s constitutional rights by barring evidence illegally obtained from admission at the criminal trial of that defendant. See Weeks v. U.S., 232 U.S. 383 , 34 S.Ct. 341 , 58 L.Ed. 652 (1914); United States v. Janis, 428 U.S. 433 , 96 S.Ct. 3021 , 49 L.Ed.2d 1046 (1976). In United States v. Calandra, 414 U.S. 338 , 94 S.Ct. 613 , 38 L.Ed.2d 561 (1974), it was established that the exclusionary rule’s prime purpose, if not its sole one, “is to deter future unlawful police conduct.” Calandra, 414 U.S. at 347 , 94 S.Ct. at 619 .

See United States v. Peltier, 422 U.S. 531, 536-39 , 95 S.Ct. 2313, 2317-18 , 45 L.Ed.2d 374 (1975). Thus, “[t]he rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.” Calandra, 414 U.S. at 348 , 94 S.Ct. at 620 . And, “Despite its broad deterrent purpose, the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons. As with any remedial device, the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served.” Ibid.

The Court in Calandra noted that there is a balancing process implicit in a determination of the appropriateness of the exclusionary rule to a given situation; the potential benefits of applying the rule (i.e., deterrence) must be balanced against the potential damage from such application. An important consideration to this process is the extent to which exclusion would deter, or non-exclusion would encourage, illegal searches and seizures. See 1 La Fave, Search and Seizure § 1.5 (1978). ³⁸² While the Supreme Court has never directly applied the exclusionary rule in a civil case, it ruled in Janis, supra, that evidence illegally seized by state agents in good faith and in reliance on a warrant may be used in a federal civil tax proceedings. Though the ruling cannot be said to stand for the proposition that evidence may never be excluded in a civil proceeding, it nonetheless severely undermined those cases in lower courts which applied the exclusionary rule to civil proceedings.

Morale v. Grigel, 422 F.Supp. 988 (DNH 1976). 9 In Janis , the Court, in balancing the need for deterrence in inter-sovereign violations of the fourth amendment (those cases where the criminal law enforcement officer had no responsibility or duty to, or agreement with, the sovereign seeking to use the illegally obtained evidence) 10 against the societal cost of exclusion, noted “In the complex and turbulent history of the rule, the Court never has applied it to exclude evidence from a civil proceeding, federal or state.” Janis, 428 U.S. at 447 , 96 S.Ct. at 3029 . 11 ³⁸³ Turning to the instant case, though the consequences of the County’s suit may be grave, it is not a criminal proceeding and in no sense is the action vindictive or punitive. Rather, the proceedings only seek determination of whether appellants engaged in prostitution-related activities and, if so, whether those activities should be enjoined, and whether those activities were violative of certain court orders. In such a case the use in evidence of that which might be excluded in a criminal trial does not involve a constitutionally protected interest. Moreover, the additional marginal deterrence that might result from a judicially created extension of the rule here would not, in our view, outweigh the cost to