Baker v. State

• Citation: 377 Md. 567,833 A.2d 1070
• Decision Date: 17 October 2003
• Docket Number: No. 109,109
• Parties: Wesley Eugene BAKER v. STATE of Maryland.
• Court: Court of Appeals of Maryland

833 A.2d 1070

377 Md. 567

Wesley Eugene BAKER v. STATE of Maryland.

No. 109, Sept. Term, 2002.

Court of Appeals of Maryland.

October 17, 2003.

Stuart Jay Robinson, Bel Air, for appellant.

Ann N. Bosse, Asst. Atty. Gen. (J. Joseph Curran, Jr., on brief), for appellee.

Argued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

BELL, C.J.

The issue in this case is whether, pursuant to a collateral attack, we should vacate as illegal, the sentence of a judge, who was appointed pursuant to the Maryland Constitution and duly elected to the Circuit Court for Harford County, but who may have lived outside of Harford County for a period of time during his term, in contravention to the residency requirements for state judges enumerated in the Maryland Constitution. The Circuit Court for Harford County denied the petitioner's motions attacking the of the Circuit Court judge in this case. We shall affirm.

I.

Neither the facts underlying the petitioner's conviction, nor the procedural history of the case is relevant to the disposition of the case sub judice, except to the extent that they elucidate the timing and measure of the involvement of the particular judge whose judicial acts are at issue in this case.¹ This issue at bar arose following the petitioner's murder trial. After a jury convicted the petitioner, Wesley Eugene Baker, Harford County Circuit Court Judge, Cypert O. Whitfill, sentenced him to death.² Following an unsuccessful direct appeal and unsuccessful collateral attacks on the judgment, Judge Whitfill signed a warrant of execution directing that the petitioner be executed during the week of May 13, 2002. Subsequently, the petitioner filed motions in the Circuit Court for Harford County to quash Judge Whitfill's sentence and execution warrant. He alleged that the warrants had been issued without jurisdiction.³ More particularly, he maintained that Judge Whitfill was not constitutionally qualified to preside at the petitioner's trial for first degree murder, or to sign the warrant for the petitioner's execution because, although appointed to the Harford County bench pursuant to the Maryland Constitution and duly elected by the voters of that county, Judge Whitfill lost his jurisdiction to preside over cases in Harford County when he changed his actual residence from Harford County to Baltimore County for some period during his term. Specifically, the petitioner alleged that, at some point prior to the petitioner's trial, Judge Whitfill ceased to meet the residency requirements imposed upon State judges by Article IV, Section 2 of the Maryland Constitution.⁴ Thus, the petitioner maintained, the sentence Judge Whitfill imposed on him was "illegal," at the time of its imposition. Although the petitioner conceded that Judge Whitfill's alleged change in residence occurred prior to his trial and conviction, he argued nevertheless that the change "divested [Judge Whitfill] of the judicial power and authority to preside over the Sentencing Hearing on October 26, 1992."

The matter was assigned to the Honorable John G. Turnbull, II, of the Circuit Court for Baltimore County, who denied the petitioner's motions without a hearing. The petitioner noted an appeal to the Court of Special Appeals. Prior to any proceedings in the intermediate appellate court, the case was transferred to this Court, pursuant to Md.Code (1973, 2002 Repl.Vol.) § 12-307 of the Courts and Judicial Proceedings Article⁵ and Maryland Rule 8-132.⁶

In this Court, the petitioner maintains that although Judge Whitfill was a resident of Harford County during his trial, his sentencing and all times thereafter, Judge Whitfill's earlier change of residence from Harford County to Baltimore County divested him of his judicial authority immediately upon its occurrence and by operation of law. The petitioner insists that the Judge's judicial authority could not be regained by simply reestablishing a residence in Harford County. In support of his position, the petitioner relies upon this Court's precedents regarding challenges to the constitutional residency requirements of non-judicial elected officials. See generally, Oglesby v. Williams, 372 Md. 360, 812 A.2d 1061 (2002)

; Stevenson v. Steele, 352 Md. 60, 720 A.2d 1176 (1998); Blount v.Boston, 351 Md. 360, 718 A.2d 1111 (1998); Bainum v. Kalen, 272 Md. 490, 325 A.2d 392 (1974).

The respondent rejoins that there is no support for the petitioner's argument, and that the fact that Judge Whitfill may have, temporarily maintained a residence in Baltimore County, rather than Harford County, did not evince any intent to abandon his Harford County domicile. The respondent also relies on the "de facto officer" doctrine. Directing our attention to Nguyen v. U.S., ___ U.S. ___, 123 S.Ct. 2130, 156 L.Ed.2d 64 (2003), then under review, and, subsequently decided by the United States Supreme Court, the State argues that, under the de facto officer doctrine, the acts of public officials acting under color of title are presumed to be valid even if it is later discovered that there are deficiencies in the official's appointment or election to office. Thus, the State asserts that a defect in Judge Whitfill's judicial authority may not be challenged in post-conviction proceedings. Consequently, the State maintains that the petitioner has missed his opportunity to challenge the alleged defect.

II.

Neither party disputes that Judge Whitfill was qualified for, and duly elected to the office of judge of the Circuit Court for Harford County when he presided and imposed sentence in the petitioner's case. Therefore, the only question before this Court concerns how a fully qualified and validly elected judge may be removed from office, or be found to have vacated the office. Accordingly, we must decide whether Judge Whitfill's exercise of judicial authority may be collaterally attacked in a post-conviction proceeding.

The Maryland Constitution vests "[t]he judicial power of this State in a Court of Appeals, such intermediate courts of appeal as the General Assembly may create by law, Circuit Courts, Orphans' Courts, and a District Court." See Article IV, Section 1 of the Maryland Constitution. Article IV also delineates the constitutional qualifications of judges. See Article IV, Section 2 of the Maryland Constitution, note 4 supra. Moreover, the Constitution addresses the grounds and procedures for removal of judges. Article 33 of the Maryland Declaration of Rights of the Maryland Constitution expressly proscribes the removal of judges "except in the manner, and for the causes provided in this Constitution." Article IV, Section 4 enumerates the grounds and procedures for said removal, providing:

Section 4. Grounds and procedure for removal of judges

"Any Judge shall be removed from office by the Governor, on conviction in a Court of Law, of incompetency, of wilful neglect of duty, misbehavior in office, or any other crime, or on impeachment, according to this Constitution, or the Laws of the State; or on the address of the General Assembly, two-thirds of each House concurring in such address, and the accused having been notified of the charges against him, and having had opportunity of making his defence."

Section 5 of the same article states, in relevant part, that a Circuit Court judge "shall hold the [office of Circuit Court judge] until the election and qualification of his successor." Md. Const., Art. 4, § 5. Significantly, there is no constitutional provision that provides that the judges of this State may be divested of judicial authority by operation of law or that permits collateral attack on the authority of a judge based solely on that judge's change of residence.

As early as 1886, the United States Supreme Court recognized that the acts of public officials acting under color of title are presumed to be valid, even though it is later discovered that the legality of that person's appointment or election to office is deficient. Norton v. Shelby County, 118 U.S. 425, 441-42, 6 S.Ct. 1121, 1125, 30 L.Ed. 178, 186 (1886). As the Court explained:

"[t]he doctrine which gives validity to acts of officers de facto, whatever defects there may be in the legality of their appointment or election, is founded upon considerations of policy and necessity, for the protection of the public and individuals whose interests may be affected thereby. Offices are created for the benefit of the public, and private parties are not permitted to inquire into the title of persons clothed with the evidence of such offices and in apparent possession of their powers and functions. For the good order and peace of society their authority is to be respected and obeyed until in some regular mode prescribed by law, their title is investigated and determined. It is manifest that endless confusion would result if in every proceeding before such officers their title could be called in question."

Id. The Court also recognized, however, that the doctrine was not absolute, pointing out that "the idea of an officer implies the existence of an office which he holds. It would be a misapplication of terms to call one an `officer' who holds no office, and a public office can exist only by force of law." Id.

In Norton, the dispositive issue was whether the statutorily created Tennessee Board of Commissioners had the legal authority to issue bonds to finance a county subscription to the Mississippi River Railroad Company. Prior to the passage of the act empowering county commissioners to issue the bonds, that authority resided with the county court and the justices of the peace. The Supreme Court of Tennessee held that the act creating the Board of Commissioners and conferring on the commissioners the powers of the justices of the peace was unconstitutional and void. The United States Supreme Court affirmed, holding that the commissioners could not appropriately carry out actions that were exclusively...