Brady v. Swisher

• Decision Date: 16 September 1977
• Docket Number: Civ. No. Y-74-1291.
• Parties: Donald BRADY et al. v. William SWISHER et al.
• Court: U.S. District Court — District of Maryland

436 F. Supp. 1361

Donald BRADY et al. v. William SWISHER et al.

Civ. No. Y-74-1291.

United States District Court, D. Maryland.

September 16, 1977.

Peter S. Smith, Michael S. Elder, and Phillip G. Dantes, Baltimore, Md., for plaintiff.

Bernard Raum, Asst. Atty. Gen., Baltimore, Md., for defendant.

Before WINTER, Circuit Judge, and NORTHROP and YOUNG, District Judges.

MEMORANDUM AND ORDER

On November 25, 1974 plaintiffs¹ instituted this action against Milton Allen, then State's Attorney for Baltimore City; Howard Merker, Chief of Operations, Office of State's Attorney for Baltimore City; Barbara Daly, Chief Juvenile Court Services Division, Office of State's Attorney for Baltimore City; and James Benton, Deputy Clerk, Circuit Court for Baltimore City, Division of Juvenile Causes, seeking declaratory and injunctive relief, and to enjoin the defendants from subjecting plaintiffs to a second trial or disposition pursuant to Rule 908 e 2 and 3, Md.Rules of Procedure, which plaintiffs allege violates the Double Jeopardy Clause of the Fifth Amendment, as applied to the States through the Fourteenth Amendment. This action is brought pursuant to 42 U.S.C. § 1983 and this Court's jurisdiction is invoked pursuant to 28 U.S.C. § 1343.

Subsequent to the designation of a three-judge court pursuant to 28 U.S.C. § 2284, plaintiffs filed a request for certification as a class. Having found that the numbers of individuals to be joined might prove impracticable, that the requirements of commonality and typicality of law and fact have been met and that the plaintiffs can adequately represent the interests of the class and are represented by competent counsel, that request is granted. Rule 23(a)(1) F.R.Civ.P. The class is designated as a (b)(2) class under Rule 23 F.R.Civ.P. and consists of all juveniles against whom, on or after June 12, 1976, the State of Maryland had filed exceptions to the finding of non-delinquency. This Court has previously granted the motion of Stevie Jacobs, Dennis Green and Steven Stencil to intervene as plaintiffs. The defendants have moved for relief from this order since the exceptions filed by the State's Attorney's Office were later withdrawn. Paul Meadows, on February 20, 1976, and Eugene Fields on May 21, 1976, also moved to intervene as plaintiffs. The Office of the State's Attorney has also withdrawn its exception to the findings and recommendations of the master in Meadows' case. As of the time of final argument before this three-judge panel (June 12, 1976) a rehearing was still pending on the exceptions filed by the Office of the State's Attorney in Fields' case, although the State subsequently withdrew its exception. The motion of Eugene Fields to intervene as a plaintiff will be granted. The motion of Meadows to intervene is denied and the defendants are granted relief from the order granting Jacobs, Green and Stencil leave to intervene.

Pending determination of nine habeas corpus petitions, filed by the original plaintiffs here, the three-judge court stayed consideration of this case. On June 12, 1975 Judge Thomsen granted habeas corpus relief to six of the plaintiffs, but dismissed the petitions of Brady, Epps and Love without prejudice. See, Aldridge v. Dean, 395 F.Supp. 1161 (D.Md.1975).

On July 17, 1975 the defendants, having been granted leave by the Court to file a supplemental pleading, moved to dismiss the complaint on the ground of mootness since the Maryland legislature had enacted, effective July 1, 1975, Chapter 554 of the Acts of 1975, Md.Ann.Code, Cts. & Jud. Proc.Art., § 3-813, and the Maryland Court of Appeals amended Chapter 900 of the Maryland Rules of Procedure, to conform the rules to Chapter 554 of the Acts of 1975, as well as the opinion of this Court in Aldridge v. Dean, supra. Former Rule 908e 2 and 3 no longer exists, but has been amended and reenacted as Rule 910e, Md. Rules of Procedure. The plaintiffs were then granted leave to file a supplemental complaint seeking a declaratory judgment that Md.Ann.Code, Cts. & Jud.Proc.Art., § 3-813 and Rule 910e, Md.Rules of Procedure, violate the Double Jeopardy Clause of the Fifth Amendment, and an injunction enjoining the defendants, Swisher, the current State's Attorney for Baltimore City, Merker, Sheldon Mazelis,² Chief of the Juvenile Division, Office of State's Attorney, Baltimore City, and Benton from taking exceptions to findings of non-delinquency or from taking exceptions to dispositions pursuant to Md.Ann.Code, Cts. & Jud.Proc. Art., § 3-813 and Rule 910e. The defendants' motion to dismiss this supplemental complaint was denied after a hearing on the motion.

The defendants reasserted their argument that this case should be dismissed on the ground of mootness. However, the intervention of Eugene Fields saves this case from becoming moot. At oral argument it was agreed that the State has filed an exception to the master's findings and recommendations and that a hearing has been set before the juvenile judge on the exception. Thus an actual case and controversy exists between the plaintiff, Eugene Fields, and the defendants.

An evidentiary hearing was conducted in the nine habeas corpus cases (Aldridge, supra) at which counsel stipulated that the evidence admitted there would be admissible in this proceeding subject to any objections. This Court conducted a brief evidentiary hearing and counsel have submitted several stipulations and additional documentation. Most of this new evidence brings up to date the statistics introduced in the Aldridge hearing.

A case is generally instituted when the Office of the State's Attorney files a petition which alleges that the "Named child under the age of eighteen years is Delinquent." If the case is filed in Baltimore City after arraignment, it is assigned to either the juvenile judge or one of the seven masters. The presiding juvenile judge in Baltimore City hears the more aggravated type of case, such as murder, rape or armed robbery. He also hears all cases in which the juvenile is represented by the Maryland Juvenile Law Clinic. If the case is assigned to a master, an adjudicatory hearing is held at which the State's Attorney presents his case. Each witness is sworn and subject to direct and cross examination. After the close of the State's case, the defense normally moves for a dismissal of the petition. If the motion is denied, the defense then presents its case. After hearing argument, the master announces his finding to the parties, explaining the reasons for his conclusions. These proceedings are now recorded on tape. If the charges are not sustained, some masters inform the juvenile that the State has a right to take an exception. Others do not so inform the juvenile. Under Rule 910 the master must submit to the juvenile judge a written statement of his proposed findings of fact, conclusions of law and recommendations. However, in most cases the parties agree to waive the master's written proposed findings of fact and conclusions of law. The memoranda are normally submitted to the juvenile judge when the master has recommended commitment or detention.

Since the new rules became effective July 1, 1975, the juvenile judge has always signed the proposed order where the master has made a finding that the charge was not sustained and the State does not take an exception, even though the judge may hold another hearing on his own motion. If an exception is taken, the matter is set for a hearing before the juvenile judge. If the State is the objecting party, the hearing must be on the record unless the juvenile assents to the introduction of evidence. In recent years the State has filed few exceptions to the findings of a master.

The legal issue, and only issue, presented in this case is whether the defendants are barred by the Double Jeopardy Clause of the Fifth Amendment, as applied to the States through the Fourteenth Amendment, see Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), from taking exceptions to findings and recommendations of a master pursuant to Md. Ann.Code, Cts. & Jud.Proc.Art., § 3-813, and Rule 910e, Md.Rules of Procedure, in order to obtain a different resolution by the juvenile judge.

Md.Ann.Code, Cts. & Jud.Proc.Art., § 3-813 provides:

(a) The judges of a circuit court, and the Supreme Bench of Baltimore City, may not appoint a master for juvenile causes unless the appointment and the appointee are approved by the Chief Judge of the Court of Appeals. The standards expressed in § 3-803, with respect to the assignment of judges, shall also be applicable to the appointment of masters. A master must, at the time of his appointment and thereafter during his service as a master be a member in good standing of the Maryland Bar. This subsection shall not apply to a master appointed prior to June 1, 1971, who is approved by the judge of the circuit court exercising juvenile jurisdiction.

(b) If a master is appointed for juvenile causes, he is authorized to conduct hearings. These proceedings shall be recorded, and the master shall make findings of fact, conclusions of law, and recommendations as to an appropriate order. These proposals and recommendations shall be in writing, and, within 10 days after the hearing, the original shall be filed with the court and a copy served upon each party to the proceeding.

(c) Any party, in accordance with the Maryland Rules, may file written exceptions to any or all of the master's findings, conclusions, and recommendations, but shall specify those items to which he objects. The party who files exceptions may elect a hearing de novo or a hearing on the record before the court. The hearing shall be limited to those matters to which exceptions have been taken.

(d) The proposals and recommendations of a master for juvenile causes do not constitute orders or final action of the court. They shall be promptly reviewed by the court; and in the absence of timely and proper exceptions, they may

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