State v. Lykins, 235

• Decision Date: 09 October 1979
• Docket Number: No. 235,235
• Parties: STATE of Maryland v. Mitzi Jean LYKINS.
• Court: Court of Special Appeals of Maryland

Page 472

43 Md.App. 472

406 A.2d 289

STATE of Maryland v. Mitzi Jean LYKINS.

No. 235.

Court of Special Appeals of Maryland.

Oct. 9, 1979.

William H. Kenety, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., and Neal P. Myerberg, State's Atty. for St. Mary's County on the brief, for appellant.

George E. Burns, Jr., Asst. Public Defender, with whom was Alan H. Murrell, Public Defender on the brief, for appellee.

Argued before MORTON, MOYLAN and MASON, JJ.

MOYLAN, Judge.

The office of State's Attorney is independent, elective and constitutional. It is not part of the judicial branch of government but is established, along with the office of Attorney General, by Article V of the Maryland Constitution. It has been a constitutional office since 1851. With respect to his conduct in office, the State's Attorney is "subject to removal" for "incompetency, willful neglect of duty, or misdemeanor in office" either upon a "conviction in a Court of Law" or upon "a vote of two-thirds of the Senate, on the recommendation of the Attorney-General." Maryland Constitution, Article V, Section 7. Beyond that, the State's Attorney is answerable for his conduct in office to his electorate every four years. A healthy respect for the delicate balance of powers upon which our democratic institutions rest compels that we brook no lightly assumed interference by the judicial branch with the function of that independent branch of government and that we not arrogate unto our branch supervisory powers which the Constitution does not bestow. The legal context for the decision that follows was well articulated by Chief Judge Murphy in State v. Hunter, 10 Md.App. 300, at 305, 270 A.2d 343, at 345:

". . . (T)he office of State's Attorney is not a branch of the judiciary, nor is it directly subject to its supervision. See United States v. Shaw, 226 A.2d 366 (Dist.Ct.App.D.C.). Under the Constitution and laws of Maryland, the State's Attorney is a constitutional office elected by the people and entrusted by them with the prosecution of persons accused of crime. The office is one of great dignity and commands great respect."

See also State v. Aquilla, 18 Md.App. 487, 493, 309 A.2d 44.

Neal Myerberg took office as the newly elected State's Attorney of St. Mary's County in January, 1979. Before that, he had been in private practice in that county. On January 29, 1979, the grand jury indicted the appellee, Mitzi Jean Lykins, for assault with intent to murder one George Welch. On April 3, 1979, the Circuit Court for St. Mary's County granted the appellee's motion to dismiss the indictment because of the fact that State's Attorney Myerberg had once represented her in a civil matter. The State has appealed that ruling.

The testimony revealed that Mr. Myerberg met the appellee in July of 1978. She was then a Mrs. Anderson. He prepared a separation agreement between her and Mr. Anderson and mailed it to her. The separation was apparently uncontested. He had no further contact with her. He also testified that, in the course of an extensive practice, he had written over a thousand such separation agreements. The hearing judge found expressly, "Certainly the Court is not in any way implying that there is...