Whitaker v. Prince George's County

Decision Date01 September 1986
Docket NumberNo. 6,6
Citation514 A.2d 4,307 Md. 368
PartiesGerald WHITAKER et al. v. PRINCE GEORGE'S COUNTY, Maryland. ,
CourtMaryland Court of Appeals

Sean Daniel Wallace and William C. Brennan, Jr. (Knight, Manzi, Brennan & Ostrom, P.A., on brief), Upper Marlboro, for appellant.

Joyce B. Hope, Associate Co. Atty. (Thomas P. Smith, Co. Atty., Michael O. Connaughton, Deputy Co. Atty. and Tonia Y. Belton, Associate Co. Atty., on Brief), Upper Marlboro, for appellee.

Argued before MURPHY, C.J., and SMITH, * ELDRIDGE, COLE, RODOWSKY, COUCH and McAULIFFE, JJ.

COUCH, Judge.

The present appeal comes to us as a consolidation of three appeals from the Circuit Court for Prince George's County, Maryland (Bowen, J.). All three appeals were consolidated in the Court of Special Appeals by Order dated December 27, 1985. 1 The subject matter of these appeals arose as a result of an investigation conducted by the Prince George's Police Department into the alleged activities of several business establishments suspected of being houses of prostitution or "bawdyhouses." 2 We follow with a brief overview of the factual and procedural background leading to the instant appeal.

I Appeals No. 1229 and No. 1231

On July 8, 1985, after the investigation had been conducted, Prince George's County ("County" or "Appellee") filed in the Circuit Court for Prince George's County a Bill of Complaint for Injunctive Relief and Ex Parte and Permanent Injunction against Cary Greene and Paul Malone as owners of property located at 11100 Baltimore Boulevard, Beltsville, Maryland, Gerald Whitaker and Faith McCollum as occupants of the premises trading as "J.J.'s Photo Studio" (hereinafter "J.J.'s" or "Photo Studio") located at the above address, Johnnie Robert Parries as manager of "J.J.'s", and alleged prostitutes Alison Irene Glenn, Rita Lee Jarboe, Donna Jean Barden, Denise Marie Watts, Laurie Gale Foster, Carmen Milagres Feliciano, Janet Marie Prather, and Margaret Helen Alvey (hereinafter "Appellants").

The Complaint alleged, inter alia, that J.J.'s operates seven days a week and serves an exclusively male clientele; that, upon entering the Photo Studio, a prospective customer is greeted by several females and asked to select the female of his choice. After choosing a female attendant, the customer is asked to choose a type of session. For a flat half-hour rate of thirty dollars ($30.) or an hourly rate of fifty dollars ($50.), the customer gets a room with a bed for the prescribed period of time. Female employees of the Photo Studio allegedly receive additional income by bargaining with customers for sex acts to be performed by them during the pre-paid "sessions." Customers pay additional amounts for the aforementioned acts.

Investigations conducted by County police, consisting of surveillance, searches and oral interviews of customers allegedly revealed that only male customers entered the premises, none of whom carried or wore any type of athletic apparel, suntanning apparel or art or photographic equipment. No photographic equipment was found at the establishment as a result of a search of the premises. It was thus alleged that appellants, among others, were involved in various capacities in the operation of a business that was "a blatant house of ill repute, a bawdyhouse ... and a nuisance per se." The County sought to enjoin appellants, temporarily and permanently, from

"conducting, owning, financing, leasing, operating, managing, supervising, or in any manner whatsoever, associating with the house of prostitution which exists as a nuisance per se...."

Judge Albert T. Blackwell of the Circuit Court for Prince George's County signed an Ex Parte Order, Ex Parte Injunction and Order to Show Cause on July 8, 1985 abating the "operation of a house of lewdness, assignation, and prostitution at the subject property by the [appellants]" until a decision could be rendered on the Bill of Complaint for Injunctive Relief and Permanent Injunction.

Hearing on the Show Cause order was held on July 29, 1985 before Judge Perry Bowen. The County presented a variety of witnesses and evidence regarding prostitution, including several County police officers who testified that the subject establishment had been under investigation since 1978 as a bawdyhouse. Judge Bowen issued an oral opinion from the bench indicating that the Ex Parte Injunction would be made permanent, thus enjoining appellants from engaging in prostitution or prostitution related activities in Prince George's County. This Order was signed and filed on August 7, 1985; it was subsequently posted on the subject establishment. The appellants filed a timely appeal to this Order (Appeal No. 1229).

On August 19, 1985, the County filed a Motion to Cite Defendants for Contempt. The County alleged in its Motion that appellants continued to operate the Photo Studio as a house of lewdness, assignation, and prostitution despite the August 7, 1985 order of court. The action proceeded to hearing on September 26, 1985, where Judge Bowen refused to dismiss the proceedings and denied appellants' demand for a jury trial. At the conclusion of the hearing, Judge Bowen found appellants to be in willful contempt of court by the continued operation of a bawdyhouse contrary to the August 7, 1985 Order. Appellants Faith McCollum and Gerald Whitaker were ordered to post bonds guaranteeing that they would not be involved with prostitution or prostitution related activities in Prince George's County. Appellants Greene and Malone were ordered to post bonds guaranteeing that the subject real property would not be used for a house of lewdness, assignation, and prostitution. Appellants Prather, Watts and Alvey were ordered to post bonds of personal recognizance guaranteeing that they would not engage in prostitution. Appellant Parries was required to post a $10,000 surety bond. An Order to this effect is dated October 3, 1985. A Notice of Appeal was filed on October 22, 1985 from that Order (Appeal No. 1231).

Appeal No. 1230

On July 26, 1985, the County filed a Motion to Cite Defendant [McCollum] for Contempt for continuing to operate a bawdyhouse in violation of two "Orders of Permanent Injunction" dated April 13, 1981. The two Orders enjoined appellant Faith McCollum from being involved in prostitution or prostitution related activities at 11100 Baltimore Boulevard, Beltsville, Maryland, or at any other location in the County. On August 12, 1985 an Order granting Show Cause was filed by the trial court (Woods, J.); appellant McCollum's Motion to Strike and Demand for Jury Trial, filed on August 26, was denied by the court (McCullough, J.) after a hearing held on August 30, 1985. At the end of that hearing the proceedings were continued until October 2, 1985, over appellant's objection, for Judge Bowen to hear.

Judge Bowen concluded at the end of the October 2 hearing that appellant McCollum was in willful and flagrant contempt of court for violating the Orders issued on April 13, 1981. McCollum was given a six month suspended sentence and ordered to pay a six thousand dollar ($6,000.00) fine to purge herself of contempt. An Order to this effect was signed on October 9, 1985. On October 21, a timely Order of Appeal was entered. We granted the writ of certiorari on our own motion on March 12, 1986 to resolve the questions presented by the consolidated actions.

II Assignment of Trial Judge

First, we are asked to consider the propriety of the assignment of the underlying actions to Judge Bowen of the Circuit Court for Calvert County by Judge Ernest Loveless, Circuit Administrative Judge of the Seventh Judicial Circuit. Appellants take issue with this assignment by challenging the constitutional validity of Md. Rule 1202(b)(1). They claim that, in light of Art. IV, § 18(b) of the Maryland Constitution, the Rule impermissibly expands both the number of judges allowed to make assignments and the circumstances in which such assignments are to be made. 3 Appellants conclude, therefore, that the instant assignment of Judge Bowen to the actions was improper. We disagree.

Md. Rule 1202(b)(1) was promulgated by this Court in implementation of the constitutional power vested in it under § 18(a) to make rules governing the administration of the trial courts of the State and expressly grants unto a circuit administrative judge the power of assignment within his judicial circuit. "[T]he Circuit Administrative Judge of each of the first seven judicial circuits may assign any judge of his judicial circuit to sit as a judge of the Circuit Court of any county in the judicial circuit, in any specified case or cases or for any specified time." (emphasis supplied). Md. Rule 1202(b)(1). As the unambiguous language suggests, the effect of Rule 1202(b)(1) is to provide each circuit administrative judge of each (of the first seven) judicial circuits, under the overall aegis of the Chief Judge of the Court of Appeals, broad powers of assignment. Whether it be by the Court of Appeals directly or the circuit administrative judge as its alter ego in the circuit, this power and authority encompasses all facets of the internal management of our courts.

It must be pointed out that a judge of a circuit court is indeed a judge of a judicial circuit of Maryland. See Md. Const. art. IV, §§ 19-22. Since Judge Bowen was a judge of the Seventh Judicial Circuit of Maryland, of which Calvert County is a part, Md. Const. art. IV, § 19, Judge Loveless as circuit administrative judge of that circuit was not without authority in assigning the proceedings to Judge Bowen.

Appellants' assertions that Rule 1202(b)(1) expands the number of judges allowed to make assignments and the circumstances in which assignments can be made fails to recognize the existence of this deliberate but flexible scheme of internal management set forth by the Rule. This scheme can be implemented by the Chief Judge of the Court of Appeals, 1202(a)(1),...

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