James S., In re

Decision Date29 January 1980
Docket NumberNo. 107,107
Citation286 Md. 702,410 A.2d 586
PartiesIn re JAMES S.
CourtMaryland Court of Appeals

F. Ford Loker, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, Andrew L. Sonner, State's Atty., and John Duncan, Asst. State's Atty., for Montgomery County, Rockville, on the brief), for appellant.

Martha Weisheit, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellee.


SMITH, Judge.

We shall here affirm the determination of a trial judge that the word "shall" as used in Maryland Code (1974, 1979 Cum.Supp.) § 3-812(b), Courts and Judicial Proceedings Article, is mandatory. The section in question, a part of Subtitle 8 entitled "Juvenile Causes," is concerned with provisions for filing a petition. Section 3-812 states in pertinent part:

(a) A petition shall allege that a child is either delinquent, or in need of assistance, or in need of supervision. If it alleges delinquency, it shall set forth in clear and simple language the alleged facts which constitute the delinquency, and shall also specify the laws allegedly violated by the child. If it alleges that the child is in need of assistance or in need of supervision, the petition shall set forth in clear and simple language the alleged facts supporting that allegation.

(b) Petitions alleging delinquency . . . shall be prepared and filed by the State's attorney. A petition alleging delinquency shall be filed within 15 days after the receipt of a referral from the intake officer. All other petitions shall be prepared and filed by the intake officer.

As originally enacted by Chapter 554 of the Acts of 1975, which completely revised the statutes pertaining to juvenile causes, § 3-812(b) read:

(b) Petitions alleging delinquency shall be prepared and filed by the State's attorney. All other petitions shall be prepared and filed by the intake officer.

The statute was enacted in its present form by Chapter 814 of the Acts of 1978.

The incidents in which the juvenile was involved took place on January 11, 1979, and February 4, 1979. On February 14 the juvenile intake officer referred the charges in one incident to the State's Attorney for Montgomery County for the filing of charges. It was filed on March 5. The trial judge dismissed that petition without prejudice because of the failure of the State's Attorney to comply with the time limitations specified in § 3-812(b). A new referral was made and new petition filed on April 6. In the other incident the referral took place on February 27 and the petition was filed on April 12.

A motion to dismiss one petition was made on the basis of the time lag between February 27 and April 12. A motion was made to dismiss the other petition, claiming, as it was put by the trial judge, "that the new filing of the old petition did not cure the defect under the interpretation of Section 812(b) of the Courts and Judicial Proceedings Article." The trial judge said:

The Court has reviewed the Juvenile Causes Act and notes that the words "may" and "shall" are used in various sections of the Juvenile Causes Act, Section 810(d), 3-810(f) and 3-815(c) contain the word "shall" but however the legislature made provisions for an extension of the time limits by the Court. Had the legislature intended a more flexible time period in Section 3-812(b) the legislature would have used the word "may" or would have allowed for an extension of the 15 day time limit. No such extension appears to be allowed under Section 3-812(b).

It is of utmost importance and interest that the 1978 amendment to Section 3-812(b) added the 15 day time limit based upon the request of the Maryland Judicial Conference Committee on Juvenile and Family Law in order to avoid the delays that were present in the Juvenile Justice System by the failure of the timely filing of delinquency petitions.

The Court concludes that the provisions of Section 3-812(b) . . . sets forth a specific mandatory time period within which the State's Attorney must file a delinquency petition. Failure to so file within the time so prescribed mandates that these petitions be dismissed . . . .

The State entered an appeal to the Court of Special Appeals. We granted certiorari prior to the hearing in that court.

We discussed statutory construction in Police Comm'r v. Dowling, 281 Md. 412, 379 A.2d 1007 (1977). A number of cases were cited for each of the statements there made. That which is pertinent to the case at bar includes:

The cardinal rule of statutory construction is to ascertain and carry out the real legislative intent. In determining that intent the Court considers the language of an enactment in its natural and ordinary signification. . . . A corollary to this rule is that if there is no ambiguity or obscurity in the language of a statute, there is usually no need to look elsewhere to ascertain the intent of the General Assembly. . . . A court may not insert or omit words to make a statute express an intention not evidenced in its original form. . . . The General Assembly is presumed to have had, and acted with respect to, full knowledge and information as to prior and existing law and legislation on the subject of the statute and the policy of the prior law. . . . Absent a clear indication to the contrary, a statute, if reasonably possible, is to be read so that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless, or nugatory . . . . (Id. at 418-19, 379 A.2d at 1011.)

See also Board v. Stephans, 286 Md. 384, 408 A.2d 1017

(1979); Harbor Island Marina v. Calvert Co., 286 Md. 303, 407 A.2d 738 (1979); and Baltimore Gas & Elec. v. Department, 284 Md. 216, 219, 395 A.2d 1174 (1979).

At oral argument the State conceded that lexicographers view the word "shall" as mandatory in meaning when used in the third person. It urges us, however, that we should interpret it as directory in nature, that here it means "do the best you can."

Guidelines for determining whether a statute is mandatory or directory are set forth in 1A C. Sands, Sutherland Statutory Construction § 25.04 (4th ed. 1972):

Although the question whether a statute should be given mandatory or less than mandatory effect is, in every case, one of statutory construction with respect to which all of the rules and principles of construction are applicable, some special guidelines are recognizable.

Certain forms and types of statutes are generally considered mandatory. Unless the context otherwise indicates the use of the word "shall" (except in its future tense) indicates a mandatory intent. And even the permissive word "may" is interpreted as mandatory when the duty is imposed upon a public official and his act is for the benefit of a private individual.

The directory character of a statute may likewise be indicated by the purpose of a statute and the manner in which its purpose is expressed. Thus it was said: "Where words are affirmative, and relate to the manner in which the power or jurisdiction vested in a public officer or body is to be exercised, and not to the limits of the power or jurisdiction itself, they may and often have been construed as directory; . . ." Likewise, where the time, or manner of performing the action directed by the statute is not essential to the purpose of the statute, provisions in regard to time or method are generally interpreted as directory only.

Something in the nature of a presumption favoring a mandatory interpretation is suggested by judicial expressions that a statute is to be so interpreted unless its directory or discretionary character "clearly appears."

Finally, it deserves to be noted that the differences between mandatory and directory, or between prohibitory and permissive, represent a continuum involving matter of degree instead of separate, mutually exclusive characteristics. It has been said, for example, that because a statute has been classified for some purposes as directory does not mean that for all purposes it can "be ignored at will." (Id. at 301.)

The State points to the fact that Maryland Constitution Article IV, § 15 states that opinions of this Court "shall be filed within three months after the argument, or submission of the cause . . . ." From this it argues that since we have determined this constitutional provision to be directory, we should so regard this statute. We have in fact construed that constitutional provision and the similar provision relative to circuit courts (Art. IV, § 23) as being directory. See the discussion in Resetar v. State Bd. of Education, 284 Md. 537, 548-50, 399 A.2d 225, Cert. denied, --- U.S. ----, 100 S.Ct. 74, 62 L.Ed.2d 49 (1979). In Resetar we quoted from McCall's Ferry Co. v. Price, 108 Md. 96, 69 A. 832 (1908), where a motion for reargument was filed on the ground that the Court's opinion was not filed within three months. The Court said in McCall's:

The object of the constitutional provision is to have prompt decisions of causes, and no one can justly complain of unnecessary delay by this Court in filing opinions and deciding cases before it. It certainly would not be within either the letter or the spirit of this provision to grant a reargument, because an opinion had not been filed within three months thereby causing further delay. (Id. at 113, 69 A. at 839).

To construe those provisions as mandatory so that reargument would be required or that the cause would be dismissed would be to penalize litigants for circumstances beyond their control. The duty imposed by this statute is upon the attorney for one of the litigants, the State's Attorney of the particular county who represents the people of the county in the contention that the juvenile is a delinquent, not upon the arbiter of the controversy.

This Court most recently considered the word "shall" to be mandatory in State v. Hicks, 285 Md. 310, 403 A.2d 356 (1979). That case involved...

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