Murphy v. Yates, No. 68

• Court: Court of Appeals of Maryland
• Writing for the Court: SINGLEY; LEVINE
• Citation: 348 A.2d 837,276 Md. 475
• Docket Number: No. 68
• Decision Date: 22 December 1975
• Parties: , 84 A.L.R.3d 1 Robert C. MURPHY, Chief Judge of the Court of Appeals of Maryland, et al. v. Donna M. YATES.

Page 475

276 Md. 475 348 A.2d 837, 84 A.L.R.3d 1 Robert C. MURPHY, Chief Judge of the Court of Appeals of
Maryland, et al.
v.
Donna M. YATES. No. 68. Court of Appeals of Maryland. Dec. 22, 1975.

[348 A.2d 838]

Page 476

Francis B. Burch, Atty. Gen. and George A. Nilson, Asst. Atty. Gen. (Henry R. Lord, Deputy Atty. Gen. and Robert A. Zarnoch, Asst. Atty. Gen., Baltimore, on the brief), for appellants.

J. Edward Davis, Towson, and John J. Ghingher, III, Baltimore (Weinberg & Green, Towson, on the brief), for appellee.

Argued before SINGLEY, SMITH, LEVINE, ELDRIDGE, O'DONNELL, CLAPP, ROBERT E., Jr. (specially assigned) and ROSS, DAVID (specially assigned), JJ.

SINGLEY, Judge.

At its 1975 session, the General Assembly enacted what has come to be known as the State Prosecutor Act (the Act). ¹ The Act created the office of State Prosecutor, 'an independent unit in the executive branch . . . for administrative purposes only . . . within the office of the Attorney General.' ² The State Prosecutor would be

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nominated by a State Prosecutor Selection and Disabilities Commission (the Commission) created by the Act and appointed by the Governor for a term of six years, subject to confirmation by the Senate. The State Prosecutor would investigate, on his own initiative, or at the request of the Governor, the General Assembly, the Attorney General or a State's Attorney, criminal offenses under the State election laws and conflict of interest laws; violations of State bribery laws; offenses constituting criminal malfeasance, misfeasance or nonfeasance in office by an officer of the State or of a political subdivision of the State; and investigate, at the request of the Governor, Attorney General, General Assembly or a State's Attorney, criminal activity committed partly in the State and partly in another jurisdiction or committed in more than one political subdivision of the State. Upon a finding of an alleged criminal violation, the State's Attorney having jurisdiction would be allowed 45 days within which to commence prosecution. Upon the failure of a State's Attorney to act, prosecution could be commenced by the State Prosecutor.

The Commission created by the Act consisted of the Chief Judges of the Court of Appeals, the Court of Special Appeals and the District Court (the Chief Judges), and the Attorney General, all ex officio, with power to vote; three persons jointly nominated by the President of the Senate and the Speaker of the House of Delegates; one person nominated by the Board of Governors of the Maryland State Bar Association; and one person nominated by the governing board of the Maryland State's Attorneys Association. Staggered terms were provided for the appointed members.

On 15 August 1975, Donna M. Yates, the appellee and cross-appellant here, a resident, registered voter and taxpayer of the State of Maryland, filed in the Circuit Court for Anne Arundel County, in her own behalf and in behalf of similarly situated residents, citizens, taxpayers and property owners of the State, a petition in which she challenged the validity of the Act. Joined as defendants were Robert C. Murphy, Chief Judge of the Court of Appeals of Maryland; Charles E. Orth, Jr., Chief Judge of the Court of

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Special Appeals; Robert F. Sweeney, Chief Judge of [348 A.2d 839] the District Court; Francis B. Burch, the Attorney General; Andrew L. Sonner, ³ State's Attorney for Montgomery County; Marvin Mandel, Governor of Maryland; .louis L. Goldstein, the State Comptroller, and William S. James, the State Treasurer.

The petition sought declaratory and injunctive relief: a declaration that the Act is unconstitutional and injunctions forbidding the Governor from appointing the Commission provided for by the Act; forbidding the Chief Judges, the Attorney General and State's Attorney Sonner from serving as members of the Commission, and forbidding the Comptroller and the Treasurer from expending public funds for the purposes of the Act.

After the defendants had answered and cross motions for summary judgment had been filed on the ground that there was no genuine dispute as to any material fact, the court (Childs, J.) entered a declaration that the Act was constitutional and valid, except to the extent that it purported to designate the Chief Judges as ex officio members of the Commission. The trial court further concluded that the provisions of the Act were severable and that the portion declared unconstitutional neither tainted the remainder of the Act nor rendered unworkable a Commission reduced from nine members to six. An appeal was then noted in behalf of the defendants as well as a cross-appeal, in behalf of Donna M. Yates, contending that the Act is unconstitutional in its entirety. We granted certiorari in order that the matter might be reviewed by us, and advanced the case for argument.

The appellants and cross-appellees would have us hold that:

(i) Article V. of Maryland Constitution does not preclude the statutory grant of concurrent prosecutorial powers to the office of State Prosecutor;

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(ii) By naming the Chief Judges as ex officio members of the Commission the Act does not violate the separation of powers doctrine as embodied in Article 8 of the Declaration of Rights of the Maryland Constitution;

(iii) It is not a violation of Article 33 of the Declaration of Rights of the Maryland Constitution for the Act to provide for ex officio membership of the Chief Judges on the Commission;

(iv) The common law rule prohibiting the holding of incompatible positions is not violated by a statute providing for membership of the Attorney General, the Chief Judges and a State's Attorney on the Commission;

(v) It is not a violation of Article 35 of the Declaration of Rights of the Maryland Constitution for the Act to provide for membership of the Chief Judges, the Attorney General and a State's Attorney on the Commission;

(vi) The Act is not invalid because of any alleged contradiction between Sections 33D(a) and 33D(b) (of the Act);

(vii) Investiture of the Governing Board of the Maryland State's Attorneys Association and of the Board of Governors of the Maryland State Bar Association with the power to nominate Commission members does not result in an unlawful delegation to private organizations of powers reserved by Article II, § 10 of the Maryland Constitution to the Governor;

(viii) Even if there are legal or constitutional impediments to any of the public members serving on the Commission, these impediments do not [348 A.2d 840] render the Act as a whole invalid or unconstitutional;

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(ix) Should service of some on the Commission by held constitutionally impermissible, the remaining members should be deemed to constitute the 'authorized membership' under the Act.

Interesting as these questions are, we regard the first as addressing the basic question. We think that the issue might be more precisely stated if it were phrased: 'Has the General Assembly constitutional authority, except as provided by the Constitution, to empower any officer to prosecute crimes at the trial level to the exclusion of a State's Attorney?' with a corollary: 'Has the General Assembly constitutional authority to empower any officer to conduct proceedings by or against the State at the appellate level to the exclusion of the Attorney General?'. In order to address ourselves to it, a brief historical overview may be helpful.

The Declaration of Rights adopted on 14 August 1776 by our first Constitutional Convention provided in Article 3:

'That the inhabitants of Maryland are entitled to the common law of England . . . and to the benefit of such of the English statutes, as existed at the time of their first emigration, and which, by experience, have been found applicable to their local and other circumstances, and of such others as have been since made in England, or Great Britain, and have been introduced, used and practised by the courts of law of equity . . ..'

Article XLVIII of the Constitution adopted on the same day provided for an Attorney General, to be appointed by the Governor, but made no attempt to delineate his duties. For more than 40 years the Attorney General had those powers and duties vested in him by the common law of England: the management of all legal affairs and the prosecution of all suits, civil and criminal, in which the Crown was interested, State ex rel. Lamb v. Cunningham, 83 Wis. 90, 130-34, 53 N.W. 35, 51-52 (1892); 7 Am.Jur.2d Attorney General § 6 (1963). As a consequence, the common law powers and duties of the Attorney General in England

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were vested by the Constitution, when read in conjunction with the Declaration of Rights, in Maryland's Attorney General.

At its 1816 session, the General Assembly enacted Chapter 247 of the Laws of that year, which submitted for confirmation by the next succeeding session of the General Assembly an amendment to the Constitution of 1776:

'Sec. 1. Be it enacted by the General Assembly of Maryland, That all and every part of the constitution and form of government of this state, which relates to the attorney general, be and the same is hereby abrogated, annulled, and made void.

2. And be it enacted, that the duties and services, now provided by law to be done and performed by the attorney general, shall be done and performed by such persons, and in such manner as the general assembly of Maryland shall here-after direct.' (emphasis in original).

3. * * *'

This amendment was confirmed by Chapter 69 of the Laws of 1817.

At the 1817 session, Chapter 146 of the Laws of that year implemented the amendment. It is quoted, in part:

'1. BE IT ENACTED, by the General Assembly of Maryland, That there shall be appointed and commissioned a person of sound legal knowledge, who shall be styled Attorney General of Maryland, and who, previous to and during his acting as such, shall reside in the state, and whose duty it shall be to prosecute and...