Kawamura v. State, 84

Decision Date09 April 1984
Docket NumberNo. 84,84
PartiesChegeru KAWAMURA v. STATE of Maryland et al. Sept. Term 1982.
CourtMaryland Court of Appeals

Edward L. Genn, Rockville (Gilbert J. Genn, Rockville, on brief), for appellant.

Susan K. Gauvey, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on brief), for appellees.

Argued before SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ., and W. ALBERT MENCHINE, retired, Specially Assigned Judge.


This case involves a challenge to the constitutionality of Maryland Code (1974, 1984 Repl.Vol.), § 4-302(d)(2)(ii) of the Courts and Judicial Proceedings Article, which limits a criminal defendant's right to be tried by a jury under certain circumstances. 1 Section 4-302(d)(2)(i) entitles a criminal defendant in the District Court to a jury trial in any case where the maximum authorized penalty for the offense with which he is charged is imprisonment for greater than ninety days. Once a defendant in such case prays a jury trial, the District Court is deprived of jurisdiction, and jurisdiction is vested in the appropriate circuit court so that a jury trial may proceed. By § 4-302(d)(2)(ii), however, the prosecutor and District Court judge may act together to deny a defendant a jury trial in a case where the maximum authorized penalty for the offense exceeds ninety days. If the prosecutor recommends that the judge not impose a term of imprisonment for more than ninety days, and if the judge so agrees, the defendant is not entitled to a jury trial and the case remains in the District Court to be tried without a jury. It is the validity of applying this procedure in the present case, under both the federal and state constitutions, that Mr. Kawamura contests here.

The relevant facts are as follows. On September 3, 1981, Chegeru Kawamura was charged in the District Court of Maryland, sitting in Montgomery County, with the theft of goods having a value of under $300.00. Under Code (1957, 1982 Repl. Vol.), Art. 27, § 342(f)(2), this offense is a misdemeanor punishable by imprisonment for a period not to exceed eighteen months and/or a fine not to exceed $500.00. On October 6, 1981, Kawamura prayed a jury trial. The State then recommended, and the trial judge agreed to be bound by the recommendation, that Kawamura receive a prison sentence of not longer than ninety days should he be found guilty of theft. Thus, pursuant to § 4-302(d)(2)(ii), the judge denied Kawamura's jury trial request.

As a result of this ruling, Kawamura asked the District Court to declare that § 4-302(d)(2)(ii) violated his right to a jury trial under both the federal and state constitutions. On December 15, 1981, the District Court judge ruled that she could "not find that the Statute is violative of any federal constitutional rights, nor ... that it violates the state constitution," and she ordered that the case be set for trial without a jury at the earliest possible date. Three days later Kawamura filed a motion for reconsideration, again requesting that § 4-302(d)(2)(ii) be declared unconstitutional, and that proceedings in the District Court be stayed pending disposition of an appropriate appeal. The District Court denied Kawamura's motion for reconsideration and request for a stay on January 8, 1982.

Meanwhile, prior to the District Court's January 8th ruling, and because of apparent concern that the issues would become moot once the trial commenced in the District Court, Kawamura filed two separate original petitions in the Circuit Court for Montgomery County. In both petitions Kawamura requested that § 4-302(d)(2)(ii) be declared unconstitutional and that further proceedings in the District Court be enjoined pending resolution of the constitutional issues. 2 The circuit court judge was of the view that Kawamura's claims amounted to a collateral attack on interlocutory decisions of the District Court, and the judge concluded that the circuit court lacked jurisdiction to entertain the petitions. Consequently, on February 23, 1982, the circuit court dismissed both petitions, and Kawamura filed timely appeals to the Court of Special Appeals.

On February 26, 1982, which was forty-nine days after the District Court's January 8th order and three days after the circuit court's denial of his petitions, Kawamura filed an appeal from the District Court's failure to grant a jury trial and to declare § 4-302(d)(2)(ii) unconstitutional. This appeal was dismissed by the District Court, and Kawamura failed to take an appeal from the District Court's order of dismissal. 3

Thereafter, on March 4, 1982, Kawamura filed a third petition in the circuit court requesting a writ of certiorari under the K Rules for the purpose of reviewing the District Court's decisions denying a jury trial. Upon concluding that the issues raised by Kawamura's certiorari petition had been fully raised and argued in the prior equity and miscellaneous petitions, the circuit court denied the petition for a writ of certiorari. Kawamura again filed a timely appeal to the Court of Special Appeals.

By order of March 19, 1982, the Court of Special Appeals consolidated the three appeals filed by Kawamura, and stayed the District Court criminal proceedings pending disposition of the appeals. Prior to any further proceedings in the Court of Special Appeals, however, we granted Kawamura's petition for a writ of certiorari and also stayed the District Court criminal proceedings.


The first question we must address is whether the merits of Kawamura's constitutional challenge to § 4-302(d)(2)(ii) were properly presented to the circuit court for decision, and consequently are before this Court for review. We believe that the constitutional issues are properly before us. 4

Preliminarily, we note that the question of the appealability of the District Court's decisions denying a jury trial was not before the circuit court and is not before us, as Kawamura failed to appeal from the District Court order dismissing his appeal. 5

Nevertheless, Kawamura's contention that § 4-302(d)(2)(ii) unconstitutionally deprived him of his right to a jury trial was appropriately raised in the circuit court pursuant to its original jurisdiction to issue a writ of certiorari. In our view, it was error for the circuit court to deny Kawamura's certiorari petition.

It has long been the common law rule in Maryland that a circuit court has jurisdiction to issue a writ of certiorari to a lower court for the purpose of inquiring into that tribunal's jurisdiction. Thistlewood v. Ocean City, 236 Md. 548, 550, 204 A.2d 688 (1964); State v. Jacob, 234 Md. 452, 457-458, 199 A.2d 803 (1964); State v. Stafford, 160 Md. 385, 389, 391, 153 A. 77 (1931). See Baum v. Warden of Jail, 110 Md. 579, 583, 73 A. 294 (1909); Gaither v. Watkins, 66 Md. 576, 580-581, 8 A. 464 (1887); 2 J. Poe, Pleading and Practice §§ 722-723A (Tiffany's ed. 1925). In such instance, a writ of certiorari may properly issue notwithstanding the availability of a direct appeal. As early as 1887, this Court in Gaither v. Watkins, supra, rejected the argument that whenever an appeal is available, certiorari is improper, stating (66 Md. at 580-581, 8 A. 464, emphasis added):

"[I]t was argued, that a certiorari ought not to issue in any case where a party has a remedy by appeal or by writ of error. We are not prepared to go to this extent. This much, however, we may say, that as it is a matter resting in the legal discretion of the court, the writ ought not to be granted in any case, where the party has a right of appeal, except for the purpose of testing the jurisdiction of the tribunal below...."

See also A.S. Abell Co. v. Sweeney, 274 Md. 715, 719, 337 A.2d 77 (1975); Ruth v. Durendo, 166 Md. 83, 86, 170 A. 582 (1934); Roth v. State, 89 Md. 524, 526-527, 43 A. 769 (1899); Weed v. Lewis, 80 Md. 126, 127-128, 30 A. 610 (1894): Judefind v. State, 78 Md. 510, 512, 28 A. 405 (1894).

The Maryland K Rules, effective January 1, 1962, were intended to implement the existing common law practice regarding certiorari in the circuit court. Accordingly, in cases brought under those rules, this Court has approved of certiorari in the circuit court as the appropriate means for that court to review trial magistrate proceedings based on an allegedly unconstitutional ordinance, Thistlewood v. Ocean City, supra, and to review a trial magistrate's power to grant probation without verdict, State v. Jacob, supra. See also State v. Stafford, supra (certiorari is the proper means to review the power of a justice of the peace to try a criminal case without affording the accused a right to elect a jury trial).

When the District Court replaced the existing courts of limited jurisdiction in this State, nothing in the original implementing statute or in later amendments modified the common law remedy of certiorari in the circuit court to test the jurisdiction of the lower court. 6 Liebmann, in his treatise on the Maryland District Court, summarized the law as follows (1 Maryland Practice--District Court Law and Practice at § 91):

"The enactment of the District Court Act would not appear to alter the established principle that where a court is of limited jurisdiction there must be affirmative proof in support of substantial compliance with jurisdictional requirements.... It would appear that the jurisdiction of the District Court may be tested by certiorari from the Circuit Court which will issue the writ only when it is alleged and appears prima facie that the inferior tribunal is without jurisdiction."

In the case at bar, Kawamura sought a writ of certiorari in order for the circuit court to examine the District Court's denial of a jury trial. This question directly related to the subject matter jurisdiction of the District Court. Section 4-302(d)(1) of the Courts and Judicial Proceedings Article of the Code expressly deprives the District Court of jurisdiction over a criminal...

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