Wiggins v. State

• Decision Date: 07 August 1974
• Docket Number: No. 29,29
• Parties: Alphonso C. WIGGINS v. STATE of Maryland et al.
• Court: Court of Special Appeals of Maryland

Page 291

22 Md.App. 291

324 A.2d 172

Alphonso C. WIGGINS v. STATE of Maryland et al.

No. 29.

Court of Special Appeals of Maryland.

Aug. 7, 1974.

Peter S. Smith, Baltimore, with whom was Michael S. Elder, Baltimore, on the brief, for appellant.

David B. Allen, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Donald R. Stutman, and David H. Feldman, Asst. Attys. Gen., on the brief, for appellees.

Argued before ORTH, C. J., and GILBERT and LOWE, JJ.

LOWE, Judge.

When the General Assembly provided the Circuit Courts with exclusive juvenile jurisdiction in 1945 another attempt was made to establish age 18 as the uniform age in Maryland for such jurisdiction. ¹ The goal of uniformity was again aborted. Baltimore City and three counties were permitted to remain exempt. The counties subsequently conformed. Baltimore City, on the other hand, chose to retain the provision of its local law first enacted in 1902, ² which established 16 as the maximum age for juvenile jurisdiction in Baltimore City.

On August 6, 1970 the United States District Court for the District of Maryland found Baltimore City's unique treatment of youths 16 through 18 as adults arbitrary and unreasonable and declared it an unconstitutional denial of equal protection and due process under the Fourteenth Amendment to the Constitution of the United States. Long v. Robinson, 316 F.Supp. 22, 30. The United States Court of Appeals for the Fourth Circuit affirmed that decision including the '. . . limitation of (its) application . . . only to those whose convictions had not become final as of the date of the institution of this action on May 15 1969.' Long v. Robinson, 4 Cir., 436 F.2d 1116, 1120. The Court declined to decide the question of retroactivity because it found that no member of the class before the court represented the interests of those persons whose convictions had become final as of May 15, 1969.

On January 29, 1971 this court accepted the reasoning of the District Court's opinion in Long concerning the unconstitutionality of the law in question, Md.Code, Art. 26, § 70-1(c). Greene v. State, 11 Md.App. 106, 110-111, 273 A.2d 830. We decided, however, to meet the question of retroactivity in an effort to minimize the administrative dislocation which usually follows constitutional storms. Greene v. State, supra, 111, 273 A.2d 830. We held that the decision was not to be fully retroactive and accepted the May 15, 1969 cut-off date applied in both Long decisions. The following year, the Court of Appeals of Maryland expressly approved that determination of retroactivity and the selection of the date of finality. Franklin v. State, 264 Md. 62, 68, 285 A.2d 616.

Less than eight months later the United States Court of Appeals for the Fourth Circuit, faced directly with the question of the application of its decision in Long to persons whose convictions had become final prior to May 15, 1969, held that Long should be retroactively applied and that the propriety of the remedy of expunction should be determined on a case by case basis. Woodall v. Pettibone, 465 F.2d 49, 52.

Notwithstanding that favorable federal precedent, the appellant, Alphonso C. Wiggins, chose as his forum for similar declaratory and injunctive relief the Circuit Court of Baltimore City. He sued the State of Maryland and the Clerk of the Criminal Court of Baltimore seeking the expunction of six convictions of burglary, obtained prior to his 18th birthday, ³ the sentences for which had all been served. ⁴

The Attorney General filed a Motion Raising Preliminary Objection on behalf of the State asserting immunity from suit. The motion was granted. His demurrer on behalf of the Clerk of Court was granted without leave to amend by Judge James Murphy, who relied on Franklin v. State, supra, and Greene v. State, supra.

Appellant raises three issues:

1) the contemporary propriety of sovereign immunity 2) the granting of the demurrer, and (anticipating success)

3) the appropriate remedy (expungement).

Blended, they seek our retroactive application of the holding in Greene which followed Long. As a consequence, we shall treat the questions collectively and by so doing respond directly to the essential issue of retroactivity which underlies the technical questions raised by appellant.

-Sovereign Immunity-

Appellant argues that we should refuse to recognize the State's immunity from suit since '. . . neither the purpose of this doctrine nor justice is served by applying it to the instant circumstances.' He does not deny that the doctrine of sovereign immunity exists in Maryland but, because he sees it as outmoded, and because it is '. . . presently under attack from many sides,' Littell v. Morton, 4 Cir., 445 F.2d 1207, 1214, he maintains that we should give '. . . careful consideration . . . to the appropriateness of its application in particular cases.'

We are not at liberty to pick and choose when to apply legal doctrines, nor should we be. If the doctrine of sovereign immunity is to be changed or abolished it is a matter for the Legislature and not for the courts. Cf., Chas. E. Brohawn & Bros. v. Bd. of Trustees of Chesapeake College, 269 Md. 164, 166, 304 A.2d 819. The Motion Raising Preliminary Objection was properly granted.

-Demurrer-

Feinting then with a procedural jab, preliminary to the major encounter, appellant cites Shapiro v. Bd. of County Commissioners, 219 Md. 298, 302, 149 A2d 396, 398, for the premise that '. . . a demurrer is rarely appropriate in a declaratory judgment action.' We note, however, that the reason the Court of Appeals takes a dim view of that procedural deterrent in such a case is that it wishes to avoid dismissal without a declaration of rights of the parties.

In ruling upon a demurrer a court should, of course, consider only whether plaintiff is entitled to a declaration not whether he is right or wrong. A demurrer is, therefore, restricted to challenging the legal availability of the remedy sought. Hunt v. Montgomery County, 248 Md. 403, 408-410, 237 A.2d 35.

The ruling of the court below clearly showed that the appellant, whose convictions became final prior to May 15, 1969, was not entitled to a declaration because of the prior decisions of this Court and of the Court of Appeals obviating the declaratory relief he prayed. In short, his rights had been determined and previously declared in Greene and Franklin. A second declaration, which was the remedy he sought, was not available to him and a demurrer was a proper procedure to challenge its availability.

-Retroactivity-

The more basic question of whether appellant is entitled to benefit retroactively from the holding of Long would appear to be the one of overriding importance. Appellant was apparently inspired by the holding of the Federal Courts in Woodall, but nonetheless chose a state forum adversely committed against his case to seek relief. He appears more interested in posing to us and to the Court of Appeals the academic question of whether we will change our respective holdings in Greene and Franklin regarding retroactivity than in seeking the relief he would have us believe the Federal Courts would make available to him. For the reasons hereafter expressed, we are not so inclined.

Appellant argues that, because the issue of retroactivity was not directly presented, briefed or argued before us in Greene, or before the Court of Appeals in Franklin, the rulings in those cases with respect to retroactivity were dicta which we should not weigh heavily in reaching our conclusion in this case. Whether or not appellant feels this Court and the Court of Appeals meant what we said in Greene and Franklin, Judge Craven, writing for the United States Court of Appeals in Woodall was obviously convinced:

'That the question of retroactivity was not briefed and argued before the Maryland Court of Special Appeals and the Maryland Court of Appeals, the highest court of the state, does not convince us that the Maryland courts did not mean what they said. Whether or not they were specifically asked to decide the question of retroactivity, they have done so.' Woodall v. Pettibone, supra, 465 F.2d at 51.

Because the question of retroactivity is now before us, fully briefed and argued, we have reviewed the question in an effort to avoid whatever uncertainty may have arisen in the wake of Woodall.

Ten months after the United States Court of Appeals decided Woodall, the Suprem Court in Gosa v. Mayden, 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed.2d 873, had occasion to view the question of retroactivity against a factual background analogous to the one before us here. With the advantage of this renewed direction in our quest to balance the interests of society against essential justice to the individual, we are even more persuaded of the restricted application of Long adopted in Greene.

Speaking for a plurality of the Court in Gosa Mr. Justice Blackmun ruled that the Court's decision in O'Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (holding that a serviceman charged with a non-service connected crime is entitled to indictment by a grand jury and trial by a jury in a civilian court), should not be given retroactive application. In making that determination, Mr. Justice Blackmun applied the test utilized in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, and rearticulated in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199:

'. . . '(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards." Gosa v. Mayden, supra, 413 U.S. at 679, 93 S.Ct. at 2936, quoting Stovall v. Denno, supra, 388 U.S. at 297, 87 S.Ct. at 1967.

The plurality opinion found the three prong test pertinent in Gosa where the Court was principally concerned 'with the appropriateness of...