Zetty v. Piatt

CATHELL, Judge. On September 7, 2000, the Circuit Court for Charles County found Terrence Lynn Zetty, appellant, 1 to be in constructive civil contempt of a domestic violence protective order that was issued on April 27, 2000. The Circuit Court found that appellant had violated the protective order by apparently ¹⁴³ failing to turn in all firearms that were in his possession to the Charles County Sheriffs Office. The Circuit Court sentenced appellant to 179 days of incarceration unless appellant purged the contempt by turning in the firearms or by producing evidence that he was no longer in possession of the firearms.

Appellant filed a Motion for Reconsideration, which was denied by the Circuit Court after a hearing. Appellant filed an appeal to the Court of Special Appeals. We granted certiorari on our own initiative prior to consideration by the Court of Special Appeals. Appellant has presented four questions: 1.

Whether Zetty was erroneously held in constructive contempt and incarcerated in violation of his right to counsel!?] 2. Whether the constructive contempt proceeding was without force and effect because initiated by an unauthorized person (police officer in Office of the County Sheriff) who lacked standing to file the contempt petition!?] 3. Whether the order of contempt impermissibly extends beyond the findings made in the antecedent civil proceeding and lacks substantial evidentiary support!?] 4. Whether the overriding criminal character of the contempt proceeding required that Zetty be granted the right to trial by jury and the benefit of the standard of proof beyond a reasonable doubt!?] 2 ¹⁴⁴ We answer yes to questions one and two and, therefore, we reverse the Circuit Court’s finding of contempt.

We hold that the Circuit Court did not comply with Maryland Rule 15-206(e), which provides that when incarceration is sought in a constructive civil contempt hearing and an alleged contemnor appears in court without counsel, the court must confirm that the alleged contemnor received a notice of the right to counsel and that the alleged contemnor knowingly and voluntarily waives that right. We also hold that the Charles County Sheriffs Office is not an authorized party, in accordance with Maryland Rule 15-206(b), to file a petition for contempt that initiates a constructive civil contempt proceeding and that alleges a violation of a protective order. We do not need to answer questions three and four. Facts On April 20, 2000, Susan M. Piatt filed a Petition for Protection from Domestic Violence under Maryland Code (1984, 1999 RepLVol., 2000 Supp.), section 4-504 of the Family Law Article.

In the petition, Ms. Piatt alleged that on the previous day appellant had been sitting in his truck in front of the residence that the two of them shared. Ms. Piatt attempted to remove the keys from the ignition of appellant’s truck while appellant was seated in the driver’s seat because she feared that appellant was under the influence of drugs and alcohol. The petition stated that as Ms. Piatt reached into the ¹⁴⁵ truck to take the keys, appellant drove off with her arm still inside the truck causing her arm to strike against the truck as she attempted to remove it. Ms. Piatt also alleged that appellant turned the truck around and accelerated as if he was going to hit her and her father with the truck as they stood on the side of the street.

Ms. Piatt stated that she ran into the house and called the police because she was afraid of appellant. On April 27, 2000, a hearing was held before the Circuit Court for Charles County on Ms. Piatt’s Petition for Protection from Domestic Violence. At the end of the hearing, the Circuit Court found by clear and convincing evidence that Ms. Piatt had been placed in fear of imminent serious bodily harm by appellant. The Circuit Court, therefore, entered a protective order.

The Circuit Court stated: I am convinced of that [a fear of imminent serious bodily harm] by clear and convincing evidence and having been so convinced it is my duty to enter a protective order. The protective order that I am going to enter in this case is going to continue — it will begin today and continue for one year. That is it will expire on the 26th day of April in the year 2001. And the protective order will provide that Mr. Zetty shall not abuse or threaten to abuse Ms. Piatt.

That he shall not contact, attempt to contact or harass her. Contact includes contacting her in person, by telephone, in writing or by any other means. It is going to provide that he is not to come to her residence that they lease on a monthly basis, the residence at 3683 Brookwood Drive in White Plains. I am going to allow her to stay there.

And he, Mr. Zetty is not to come to that residence. He is not to come to her place of employment at 3475 Leonardtown Road in Waldorf. He is to vacate the home at 3683 Brookwood Drive in White Plains and for the remainder of that lease it will be the use and possession of that home will be given to Ms. Piatt. ¹⁴⁶ Mr. Zetty accompanied by law enforcement officers from the Charles County Sheriffs Department may return to that residence to collect his clothing and personal necessities and he may make those arrangements with the Sheriffs Office. It also is going to provide that he is to surrender all firearms that are in his possession to the Charles County Sheriffs Department for the duration of this protective order. 3 Now, this is what is going to happen.

The Sheriff is going to serve both of you with a copy of this order. The Sheriff for Charles County is going to keep a copy of the order. If there is a violation of the order then you should contact the Sheriff, tell them that the order is being violated and they will respond to it. They have the authority to arrest somebody for violating this order and to put them in jail.

If there is a violation of the order you can also file a petition for contempt and if after a hearing I find that there has been a violation of the order I can sentence someone to serve up to 90 days in jail and fine them up to $500 for each violation. It is my order. The only way I have to enforce it is to enforce it by contempt. If either of you violate it there is a very good probability that I will put you in jail for the period of time that I am permitted to do. [Emphasis added.] On May 5, 2000, Corporal J.C. Holter of the Charles County Sheriffs Office contacted appellant to find out if appellant had any firearms to surrender pursuant to the protective order entered by the Circuit Court.

Appellant informed Officer Holter that he was not in possession of any firearms. Officer Holter then contacted the Maryland State Police and requested that they run a search on the Maryland Automated Firearms Services System database to check whether appellant had any firearms registered in his name. The search revealed that, as of at least June 18, 1997 (some thirty-four months ¹⁴⁷ prior to the entry of the protective order), appellant had nine firearms legally registered in his name. On August 31, 2000, Officer Holter filed a Petition for Contempt in the Circuit Court for Charles County.

The petition stated that Officer Holter was the petitioner and that Mr. Zetty 4 was the respondent. The petition alleged that Officer Holter had contacted appellant about surrendering any firearms that appellant had in his possession and that appellant told Officer Holter that he did not have any firearms. This statement, it was alleged, was contrary to the information provided to Officer Holter by the Maryland State Police that indicated that appellant had nine firearms registered in his name. On September 1, 2000, the Circuit Court, pursuant to the petition filed by Officer Holter, issued a Show Cause Order requiring appellant to appear before the Circuit Court and show cause as to why he should not be found in contempt of the protective order for failing to give his firearms to the sheriffs office.

On September 7, 2000, a hearing was held on the Petition for Contempt before the Circuit Court. Appellant appeared but was not represented by counsel. Officer Holter testified that he had contacted appellant about turning in any firearms to the sheriffs office in compliance with the protective order. Officer Holter stated that appellant told him in a phone conversation that he did not have any firearms, even though the Maryland State Police informed Officer Holter that appellant had nine firearms registered in his name.

Appellant testified at the contempt hearing that he had no recollection of ever speaking to a police officer about possessing firearms. Appellant did not deny that he had owned the firearms listed on the report from the Maryland State Police; however, appellant stated that the firearms and their identifying documents were stolen from his residence in March of 1998, approximately two years before the protective order was entered. Appellant testified that he reported that the fire ¹⁴⁸ arms had been stolen to the Prince George’s County Police Department, but that the police department was unable to provide him with any assistance in locating the firearms. At the conclusion of the contempt hearing, the Circuit Court sentenced appellant to 179 days of incarceration; however, the incarceration could be purged.

The Circuit Court stated that: I find you in contempt and commit you to jail for a period not to exceed a period of 179 days. You can purge yourself of this contempt by producing each and every — by having an agent do it for you — each and every of the firearms mentioned in what’s Court’s Exhibit 2 in this proceeding or a documentary receipt from somebody acknowledging having obtained it from you or from a third person; that’s the second possibility. And the third possibility is by producing a report from the Prince George’s County Police Department from June of 1998 reflecting that you did report to them, at that time, that guns had been taken from your Surratts Manor Drive Home. We want the guns, we want receipts for them or we want documentation that you reported it to the police, and you sit in this jail until that happens, until one of those three things happen.

On September 11, 2000, appellant filed a Motion- for Reconsideration of the Circuit Court’s finding of contempt and the sentence imposed. In his motion, appellant stated that no evidence was presented at the original protective order hearing or at the contempt hearing that proved that appellant possessed a firearm on April 27, 2000, the day of the protective order hearing, or any day thereafter. The Motion for Reconsideration was set for a hearing on September 27, 2000. At the hearing on the Motion for Reconsideration, appellant’s first argument, through counsel, was that even if he was contacted by Officer Holter, which he did not remember, any statements he made that he had never been in possession of firearms were pertaining to the period of time since the protective order had been entered.

Appellant stated that if he had the firearms, they were properly bought and registered, ¹⁴⁹ so he would not have a problem turning the firearms into the sheriffs office because the firearms would be returned to him when the protective order ended on April 26, 2001. Appellant also argued that he called the Prince George’s County Police Department when he noticed that the firearms were missing and he is trying to obtain documentation of the police records. Appellant stated that during the protective order hearing, the Circuit Court 5 stated that the maximum punishment for a violation of a protective order was a $500.00 fine or ninety days in jail, yet appellant was sentenced to 179 days of incarceration. Appellant then alleged that Officer Hotter did not have standing to file the contempt petition and that there was not clear and convincing evidence of appellant being in possession of firearms.

Appellant’s counsel stated that: Keep in mind, Your Honor, I don’t even think that Sheriff Hotter has standing. This is a civil case. This is a protective order. It is not Susan Piatt who is suggesting that my client is in violation.

She hasn’t filed anything. She’s never suggested that my client has violated the protective order. She’s never suggested that he’s had guns. So the question is in a civil case can Sheriff Hotter firstly file a petition and, second of all, Your Honor, was there evidence, credible evidence, clear and convincing evidence, I think would be the standard in contempt, 6 that my client had on April 27th or any day thereafter up until the hearing before Your Honor on September 7th, had in his possession firearms.

Your Honor, I would proffer if we had another hearing in this case, his son and daughter would testify, his mother and ¹⁵⁰ father would testify that they have never seen, ever heard anything about guns after April 27th, 1998-after 2000. Appellant then argued that even if the Circuit Court found that the grounds for the finding of contempt were justified, appellant had already served twenty days in jail and that should be a sufficient punishment. Appellant’s counsel stated: I am respectfully suggesting, Your Honor, that you should conclude today respectfully that my client is not in contempt, certainly, Your Honor, regardless of the ultimate finding of Your Honor, conclude that 20 days in jail is sufficient. Today I think is the 21st day.

My client can’t reasonably purge himself of contempt based on the order in this case, if he doesn’t have the guns, can’t produce the guns, he doesn’t have third parties’ names he can produce that have these guns. It would take another ten days before we get something back from Prince George’s County. The Circuit Court first held that Officer Holter had standing to file the contempt petition. The Circuit Court stated: First, since Officer Holter is a functionary of the agency that the Court charged with several duties under this protective order and since I would note parenthetically the local Sheriffs Office has a grant from somebody on high, I think in Annapolis, specifically with which to man the service of and the execution of provisions of these orders.

The general expectation is that the Sheriffs Office is an enforcement agency with regard to the provisions of these protective orders. And it is certainly the law that Officer Holter could have gone, and may have for all I know, but certainly could have gone to a commissioner and filed a criminal complaint against Mr. Zetty. He has standing to do that. If he has standing to do that, I would certainly like to think he has standing to be the complainant in a contempt context.

And if he doesn’t have such standing, the law needs to be changed. I think he does have standing in several senses of that term. ¹⁵¹ The Circuit Court went on to hold that its evidentiary findings from the earlier contempt hearing were correct and that the facts showed that appellant’s actions had the effect of violating one of the provisions of the protective order. The Circuit Court did, however, amend the purge provision of the contempt order. The Circuit Court held that: We can modify the order to provide that the purge can include submission to me of some other document from the Prince George’s police agency reflecting contact of some sort with Mr. Zetty during the month of June of 1998 when he says he told them about the missing guns.

There ought to at least be a call sheet or dispatch sheet or something. I find it very difficult to imagine that any responsible police agency would not file what our people call a supplemental report with regard to the mention of missing guns. The Circuit Court then set an appeal bond at $50,000.00 security. Appellant filed an appeal and we granted certiorari.

Discussion We hold that the Circuit Court for Charles County improperly held a constructive civil contempt hearing, where incarceration is sought, by not confirming when appellant appeared at the contempt hearing without counsel, that appellant had received a notice of his right to counsel and had knowingly and voluntarily waived his right to counsel. We also hold that neither the Charles County Sheriffs Office, nor one of its officers, individually, may be a party that can initiate a constructive civil contempt proceeding under Rule 15-206(b). A. Rule 15-206 We commence our analysis of the application of Rule 15-206 by examining the proper standards for the interpretation of the Maryland Rules. In Johnson v. State, 360 Md. 250 , 757 A.2d 796 (2000), we stated that: With respect to the interpretation of the Maryland Rules, this Court has stated that, “(t]he canons and principles which we follow in construing statutes apply equally to an interpretation of our rules.” State v. Romulus, 315 Md. ¹⁵² 526, 533, 555 A.2d 494, 497 (1989).

In order to effectuate the purpose and objectives of the rule, we look to its plain text. See Adamson v. Correctional Medical Serv., Inc., 359 Md. 238, 250-51 , 753 A.2d 501, 507-08 (2000); Huffman v. State, 356 Md. 622, 628 , 741 A.2d 1088, 1091 (1999). To prevent illogical or nonsensical interpretations of a rule, we analyze the rule in its entirety, rather than independently construing its subparts. See Marsheck v. Board of Trustees of the Fire & Police Employees’ Retirement System of the City of Baltimore, 358 Md. 393, 403 , 749 A.2d 774, 779 (2000).

If the words of the rule are plain and unambiguous, our inquiry ordinarily ceases and we need not venture outside the text of the rule. See Adamson, 359 Md. at 250-51 , 753 A.2d at 507-08 ; Marsheck, 358 Md. at 402-03 , 749 A.2d at 779 ; Huffman, 356 Md. at 628 , 741 A.2d at 1091 . The venerable plain meaning principle, central to our analysis, does not, however, mandate exclusion of other persuasive sources that lie outside the text of the rule. See Adamson, 359 Md. at 251-52 , 753 A.2d at 508 ; Marsheck, 358 Md. at 403 , 749 A.2d at 779 .

We have often noted that looking to relevant case law and appropriate secondary authority enables us to place the rule in question in the proper context. See Adamson, 359 Md. at 251-52 , 753 A.2d at 508 ; Marsheck, 358 Md. at 403 , 749 A.2d at 779 . Id. at 264-65, 757 A.2d at 804 . In Holmes v. State, 350 Md. 412 , 712 A.2d 554 (1998), we stated that: We recently reiterated the longstanding principles of construction that are applied with regard to the Maryland rules. “In construing a rule, we apply principles of interpretation similar to those used to construe a statute.

First, we must examine the ‘words of the rule, giving them their ordinary and natural meaning.’ Where the language of the rule is clear and unambiguous, our analysis ends.” State v. Harrell, 348 Md. 69, 79-80 , 702 A.2d 723, 728 (1997) (citations omitted)(quoting In re Victor B., 336 Md. 85, 94 , 646 A.2d 1012, 1016 (1994)). Where the language of the rule ¹⁵³ is ambiguous, this Court will examine the history of the rule to aid in determining the “reasonable intendment of the language used in the light of the purpose to be effectuated.” Long v. State, 343 Md. 662, 668 , 684 A.2d 445, 448 (1996). “The ultimate goal of this Court is ‘to give the rule a reasonable interpretation in tune with logic and common sense.’ ” Harrell, 348 Md. at 80 , 702 A.2d at 728 (quoting In re Victor B., 336 Md. at 94 , 646 A.2d at 1016 ). With this goal in mind, Maryland rules “dealing with the same subject matter will be construed so as to harmonize with each other and not produce an unreasonable result.” Johnson v. State, 274 Md. 29, 41 , 333 A.2d 37, 43 (1975). Furthermore, absent a clear indication to the contrary, we shall assume that the rule “was not intended to amend, nullify, or supersede the common law.” See Richwind v. Brunson, 335 Md. 661, 672 , 645 A.2d 1147, 1152 (1994).

Id. at 422, 712 A.2d at 558-59 . Maryland Rule 15-206 provides, in relevant part, that: Rule 15-206. Constructive civil contempt. (a) Where filed.

A proceeding for constructive civil contempt shall be included in the action in which the alleged contempt occurred. (b) Who may initiate. (1) The court may initiate a proceeding for constructive civil contempt by filing an order complying with the requirements of section (c) of this Rule. (2) Any party to an action in which an alleged contempt occurred and, upon request by the court, the Attorney General, may initiate a proceeding for constructive civil contempt by filing a petition with the court against which the contempt was allegedly committed.

(3) In a support enforcement action where the alleged contempt is based on failure to pay spousal or child support, any agency authorized by law may bring the proceeding. (e) Waiver of counsel if incarceration is sought. (1) Applicability. This section applies if incarceration is sought and applies only to court hearings before a judge. ¹⁵⁴ (2) Appearance in court without counsel.

(A) If the alleged contemnor appears in court without counsel, the court shall make certain that the alleged contemnor has received a copy of the order containing notice of the right to counsel or was advised of the contents of the notice in accordance with Rule 9-207 d; (B) If the alleged contemnor indicates a desire to waive counsel, the court shall determine, after an examination of the alleged contemnor on the record, that the waiver is knowing and voluntary; (C) If the alleged contemnor indicates a desire to have counsel and the court finds that the alleged contemnor received a copy of the order containing notice of the right to counsel or was advised of the contents of the notice pursuant to Rule 9-207 d, the court shall permit the alleged contemnor to explain the appearance without counsel. If the court finds that there is a meritorious reason for the alleged contemnor’s appearance without counsel, the court shall continue the action to a later time and advise the alleged contemnor that if counsel does not enter an appearance by that time, the action will proceed with the alleged contemnor unrepresented by counsel. If the court finds that there is no meritorious reason for the alleged contemnor’s appearance without counsel, the court may determine that the alleged contemnor has waived counsel by failing or refusing to obtain counsel and may proceed with the hearing. (3) Discharge of counsel.

If an alleged contemnor requests permission to discharge an attorney whose appearance has been entered, the court shall permit the alleged contemnor to explain the reasons for the request. If the court finds that there is a meritorious reason for the alleged contemnor’s request, the court shall permit the discharge of counsel, continue the action if necessary, and advise the alleged contemnor that if new counsel does not enter an appearance by the next scheduled hearing date, the action will be heard with the alleged contemnor unrepresented by counsel. If the court finds (A) that the alleged contemnor ¹⁵⁵ received a copy of the order containing notice of the right to counsel or was advised of the contents of the notice in accordance with Rule 9-207 d. and (B) that there is no meritorious reason for the alleged contemnor’s request, the court may permit the discharge of counsel but shall first inform the alleged contemnor that the hearing will proceed as scheduled with the alleged contemnor unrepresented by counsel. B. Right to Counsel On September 7, 2000, a constructive civil contempt hearing was held at which time appellant was found to be in contempt of a protective order and was sentenced to 179 days of incarceration.

During the hearing, appellant was not represented by counsel and the record does not reflect that the court made any attempt to determine if appellant knew of his right to counsel or if he had knowingly and voluntarily waived his right to counsel. Rule 15-206(e) requires a court, prior to a constructive civil contempt hearing when incarceration is being sought, 7 as it was in this case, to determine whether an alleged contemnor received a notice informing the alleged contemnor of his or her right to counsel and if the alleged contemnor waives counsel the court must confirm on the record that the waiver is knowing and voluntary. The Circuit Court in the case sub judice failed to take those steps. We have held that in a constructive civil contempt proceeding, where incarceration is being sought, the alleged contemnor has a right to counsel or the alleged contemnor must knowingly and voluntarily waive the right to counsel.

In Rutherford v. Rutherford, 296 Md. 347 , 464 A.2d 228 (1983), Mrs. Rutherford filed a petition to hold her husband, Mr. Rutherford, in contempt for his failure to pay child support as required by a divorce decree. At the contempt hearing before ¹⁵⁶ the Circuit Court for Anne Arundel County, Mr. Rutherford stated that he could not afford an attorney and the Circuit Court did not further advise Mr. Rutherford of his right