Dewayne H., In re

• Decision Date: 03 June 1981
• Docket Number: No. 16,16
• Citation: 430 A.2d 76,290 Md. 401
• Parties: In re DEWAYNE H.
• Court: Maryland Court of Appeals

Page 401

290 Md. 401

430 A.2d 76

In re DEWAYNE H.

No. 16.

Court of Appeals of Maryland.

June 3, 1981.

Maureen O'Ferrall, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., F. Ford Loker, Asst. Atty. Gen., William A. Swisher, State's Atty. for Baltimore City and Richard Scherr, Asst. State's Atty., Baltimore, on the brief), for petitioner.

Victoria Salner Keating, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for respondent.

Argued before MURPHY, C. J., and SMITH, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

SMITH, Judge.

Assuming that a mandatory provision of Maryland Rule 915 a that a "disposition hearing (in a juvenile proceeding) shall be held no later than thirty days after the conclusion of the adjudicatory hearing" is applicable at the level of a juvenile court master, we shall here hold that a trial judge erred when he concluded that dismissal of the proceeding was the proper sanction for disobedience by the master.

Dewayne H. (the juvenile) was charged in Baltimore City with storehouse breaking and related offenses. An adjudicatory hearing was held before a master for juvenile causes on September 29, 1980. The master found that the juvenile was delinquent. On that day a disposition hearing was set for October 30, 1980, thirty-one days later. At that time the master recommended that the juvenile be placed on probation to the Juvenile Services Administration for one year. On November 3 the juvenile excepted to this recommended disposition. ¹ The juvenile judge regarded himself as bound under the rule to dismiss the proceeding. In so doing, however, he recognized, as he put it, "The preamble of the juvenile law is to do substantial justice and I am supposed to sit here in a fatherly like way and help the child and I am not helping this child with this legal technicality today ...." The State entered an appeal to the Court of Special Appeals. Because of the public importance to the entire juvenile justice system of the issue here presented, we granted the writ of certiorari prior to the hearing of the appeal in that court.

We do not know precisely what took place before the juvenile master at the time of the adjudicatory hearing when the disposition hearing was set. We are told that while the proceeding "was tape recorded, the poor quality of the recording made transcription impossible." No effort was made to have the record reconstructed by, for example, an affidavit from the master. Cf. Kennedy v. State, 289 Md. 54, 71-72, 421 A.2d 1376 (1980). Apparently no issue of waiver was presented to the circuit judge. ²

We reviewed the background of juvenile proceedings in Maryland in Matter of Anderson, 272 Md. 85, 321 A.2d 516, appeal dismissed, 419 U.S. 809, 95 S.Ct. 21, 42 L.Ed.2d 35 (1974), cert. denied, 421 U.S. 1000, 95 S.Ct. 2399, 44 L.Ed.2d 667 (1975). The General Assembly has somewhat revised the juvenile law since then. It is now embodied in Code (1974, 1980 Repl.Vol.) Title 3, subtitle 8, Courts and Judicial Proceedings article. The provisions for masters is found in § 3-813. Subsection (b) provides that if a master is appointed for juvenile causes he is authorized to conduct hearings. The proceedings are to be recorded and he is to make findings of fact, conclusions of law, and recommendations as to an appropriate order. His proposals and recommendations are to 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." Subsection (c) provides that any party may file written exceptions to any or all of the master's findings, conclusions and recommendations. Subsection (d) states that the proposals and recommendations "do not constitute orders or final action of the court" but "shall be promptly reviewed by the court; and in the absence of timely and proper exceptions, they may be adopted by the court and appropriate orders entered based on them."

Maryland Rule 911 dealing with juvenile masters was amended on November 5, 1976, effective January 1, 1977. Under Maryland Constitution Art. IV, § 18(a) a rule adopted subsequent to a statute will govern in the event of any inconsistency and vice versa. Rule 911 a 2 authorizes a master to hear matters such as the charge against this juvenile. Under subsection b "(w)ithin ten days following the conclusion of a disposition hearing ..., he shall transmit to the judge the entire file in the case, together with a written report of his proposed findings of fact, conclusion of law, recommendations and proposed orders with respect to adjudication and disposition." A copy of his report and proposed order is to be served upon each party as provided by Rule 306. Subsection c provides that any party may file exceptions to the master's proposed findings, conclusions, recommendations or proposed orders within five days after service of the master's report upon the party. A prompt hearing is to be scheduled upon the filing of exceptions. In the absence of timely and proper exceptions, under Rule 911 d the proposed findings of fact, conclusions of law and recommendations "may be adopted by the court and the proposed or other appropriate orders may be entered based on them."

The juvenile act in § 3-819 provides for an adjudication hearing and in § 3-820 for a disposition hearing. The controversy here comes under Rule 915 a providing that if after an adjudicatory hearing is held the court determines that the allegations of the petition have been sustained it shall promptly schedule a separate disposition hearing to "be held no later than thirty days after the conclusion of the adjudicatory hearing." It then goes on in Rule 915 b to provide, "If the hearing is conducted by a master, the procedures of Rule 911 ... shall be followed."

Lexicographers commonly understand the auxiliary verb "shall" used in the second and third persons to mean a command, as "Thou shall not kill." See for example Webster's New International Dictionary, 2300 (2d ed. Unabr.1959); Random House Dictionary of the English Language, 1310 (Unabr. ed. 1967); and American Heritage Dictionary of the English Language, 1189 (New College ed. 1976).

The context in which words are used as a bearing on their interpretation. For example, in In re James S., 286 Md. 702, 410 A.2d 586 (1980), the statute specified that a juvenile "petition alleging delinquency shall be filed within 15 days after the receipt of a referral from the intake officer." We said that we were "struck by the similarity between the language used in the statute (t)here under consideration and that in the various limitations of actions found in Code (1974, 1979 Cum.Supp.) Title 5, Subtitle 1, Courts and Judicial Proceedings Article." Id. at 711. For instance, § 5-101 there specifies, "A civil action at law shall be filed within three years from the date it accrues" and § 5-106(a) relative to certain prosecutions says they "shall be instituted within one year after the offense was committed." We held in James S.:

We see this statute as clearly and unambiguously requiring that a petition alleging delinquency must be filed within 15 days after the receipt of a referral from the intake officer. We view this as entirely within the scheme set down in the act for expediting juvenile matters. Once the issue of a tardy filing was raised here, dismissal of the delinquency petition was mandated. Thus, it is virtually the same as the dismissal required in the case of an ordinary civil action filed three years and one day "from the date it accrues" or a prosecution for assault (a common law misdemeanor not required by statute to be punished by confinement in a penitentiary) instituted a year and day after the offense was committed. (Id. at 713, 410 A.2d 586.)

The language here is clear and unambiguous. However, its mandatory nature does not indicate the sanction to be applied nor does the sanction necessarily inure to the benefit of the juvenile. It must not be forgotten that one of the purposes of the juvenile statute as...