DeWolfe v. Richmond: State Law or Just Law?

By Alan B. Sternstein

As recently recounted on this Blog,[1] the 4-3 decision of the Court of Appeals in DeWolfe v. Richmond, ___ Md. ___, 2013 WL 5377174 (Sept. 25, 2013), was notable as another in a growing line of state court decisions resting individual rights on the Maryland Constitution, as opposed to federal law.[2]  Expressly grounding its decision on Article 24 of the Maryland Constitution’s Declaration of Rights, the Court ruled that detainees at initial bail hearings have a right to counsel provided by the state, if they cannot afford or otherwise retain counsel of their own.  The convoluted procedural history of the case and related cases that preceded it evidences the substantial moment of the competing interests at stake in the decision.[3]  Not only does the decision broaden the protective reach of Article 24 of the Maryland Constitution’s Declaration of Rights but also, more practically and immediately, it is estimated that the ruling will require counsel to be afforded for 177,000 bail hearings at 188 different locations annually, at a cost, no less of $28 Million for the Office of the Public Defender, whose total current General Assembly allocation, set before DeWolfe, stands at $94 Million for all services the Office provides.

Resting the decisions of Maryland’s highest court and of the highest courts of all other states exclusively on state law grounds and eschewing, at least facially, rulings based on federal law insulates those decisions from review in the United States Supreme Court.  Michigan v. Long, 463 U.S. 1032, 1041 (1983).  It is not a novel state judicial stratagem.  Its potential has existed since ratification of the United States Constitution and the creation of federal court jurisdiction, but the modern day attention and use that it has received has its origin in Justice William J. Brennan, Jr.’s call to increased state judicial engagement in the protection of individual rights and liberties in an article published in the Harvard Law Review in 1977[4] and in a preceding public address before the New Jersey State Bar Association on May 22, 1976.[5]  The Supreme Court’s October 1975 Term was a watershed term in the Court’s history, marking a major assault on the dam holding the reservoir of gains to individual and personal liberties filled by Warren Court jurisprudence.   Unsettled by the Court’s decision after decision that term slicing and paring away at Warren Court precedents and drawing on the personal lessons of his experience as a New Jersey supreme court judge, Justice Brennan began that term to consider and eventually trumpet the potential for state courts to protect, under their own state constitutions and laws, the individual liberties and political rights the Supreme Court had come to recognize in the United States Constitution.[6]

Justice Brennan’s clarion call did not go unheeded.  Since the late 1970s state courts in numerous decisions have looked toward their state constitutions with greater regard for their bearing on cases coming before them and in a wide variety of matters, including taxpayer standing, property condemnation for public uses, individual liberties, religious liberties, searches and seizures, impairment of contracts, and criminal procedure.[7]  Many of these decisions, indeed, are not just more liberal drum beating, but libertarian and even conservative in the decisions they reach.[8]  Moreover, in doing so, state courts have not merely gratuitously and expediently characterized, as state law, decisions that are really just different takes on federal constitutional concepts and questions.  Rather, state courts have resorted to considered examination of the text of their relevant state constitutional provisions, to available historical material about those provisions and to other state specific and relevant information to illuminate the purpose and intent of those provisions, giving true and well-grounded meaning to the advice that a decision reflects state law.[9]   As a consequence, in many, though not all opinions, the assertion that a decision is based exclusively on state law grounds has reflected not merely the use of a proven device for insulating state judicial decisions from Supreme Court review but expanding recognition of the substantive provisions of state constitutions as themselves a preeminent source of law, rather than merely the afterthoughts of state constitutional conventions or redundant restatements of federal constitutional principles.  Such considered decisions have also reinvigorated federalism in the development of the law, particularly as it concerns individual liberties and property rights, as was Justice Brennan’s objective.

Despite the history that preceded it and the controversy that attended it and despite its narrow margin of decision, DeWolfe is not merely notable for its perfunctory reliance on state law grounds but also remarkable, given its express state law basis and importance, for the lack of resort by both the majority and the dissent to an authentic examination of Maryland constitutional law in support their respective positions.  In particular, there is no effort by the majority to explain why it is, in this particular case, that the Maryland constitution affords a right to counsel broader than that recognized by relevant Supreme Court decisions.  To be sure, the majority, quoting Dua v. Comcast Cable, Inc., 370 Md. 604 , 621, 805 A.2d 1061, 1071 (2010), noted that “simply because a Maryland constitutional provision is in pari materia with a federal one or has a federal counterpart, does not mean that the provision will  always be interpreted or applied in the same manner as its federal counterpart.” DeWolfe, 2013 WL 5377174, at *12-13 n.9.  But this, of course, is not an explanation for why DeWolfe was a case for a different interpretation or application.  Nor does the majority’s observation that the Court of Appeals has on past occasions construed Article 24 of the Maryland Declaration of Rights to afford protection broader than those found in the United States Constitution, id., explain why DeWolfe should be another such case.  The beginning and potentially even the end of the explanation could have at least started with an examination of the text of Article 24, the generally accepted approach in cases of statutory and constitutional construction.  Even though, however, the majority opinion quotes Article 24 and even though the terms of Article 24 differ significantly from their federal due process counterparts, the majority opinion is devoid of any consideration of those terms.  Nor is there any apparent consideration of what in the history of Article 24 and Maryland’s own experience supports the Court’s outcome.

Likewise, there is no effort by the dissent to explain why due process rights under the Maryland constitution do not reach any further than the federal rights or, depending on one’s view of federal rights, should not reach further than those rights.  The dissent does, however, deserve credit for adverting to Maryland’s own experience under its current criminal procedures in invoking two Supreme Court decisions indulging the need for compromise among competing interests at the federal level.[10]  Still, like the majority opinion, and tellingly, there is no examination of the text of Article 24 by the dissent or the original intent of that provision, in order to determine whether the text or history offers any resistance to the result that the majority reached.

To be sure, each opinion provides a respectable rationale for its result.  The point here, however, is not that the opinions are unreasoned or unreasoned with respect to good jurisprudential practice.  Nor is the point to suggest that one has the better argument or is otherwise correct, while the other is not.  That the Court split 4-3 evidences only an outcome, certainly not, given the narrow margin, that either the majority opinion or the dissent is free from doubt.  Instead, the point is that the opinions really deal with state law in label only.  As such, they are not decisions truly and exclusively about Maryland due process so much as they are just two more differing opinions about due process in general.[11]  More importantly, the prevailing opinion, like so many Maryland (and other state) decisions that have preceded it and that claim, and merely claim, to rest on state law grounds, leaves itself vulnerable to ready overruling sometime hence on the ground that it merely reflects the day’s dominant judicial ideology, strategically shielded from the bright light of a higher review, and not principles truly, long and, therefore, firmly grounded in Maryland’s constitutional jurisprudence and history.[12]  Justice Brennan envisioned state law as not merely a judicial flanking maneuver, devoid of intellectual honesty, to avoid the turning tide in the Supreme Court.  As he wrote in his 1977 law review article, “[s]tate constitutions, too are a fond of individual liberties, their protection often extending beyond those required by the Supreme Court’s interpretation of federal law.  The legal revolution which has brought federal law to the fore must not be allowed to inhibit the independent protective force of state law – for without it, the full realization of our liberties cannot be guaranteed.”[13]


[3] In the DeWolfe case, the Court of Appeals, in 2010, vacated a Circuit Court judgment for the defendants and remanded to the Circuit Court, ruling that the plaintiffs should have joined the Public Defender as a party to the action.  Richmond v. District Court, 412 Md. 612, 990 A.2d 49 (2010).  After the Public Defender was joined, the Circuit Court granted plaintiffs’ motion for summary judgment, ruling that the Public Defender Act required the Public Defender to represent indigents at initial appearance proceedings before a commissioner.  Defendants appealed, and plaintiffs cross-appealed and also filed petitions for certiorari in the Court of Appeals.  The Public Defender cross-petitioned; the Court of Appeals granted the petitions,  DeWolfe v. Richmond, 420 Md. 81, 21 A.3d 1063 (2011); and the Court of Appeals  affirmed, strictly on the statutory grounds of the Act, in an opinion issued on January 4, 2012.  While petitions for reconsideration were pending, the Maryland General Assembly passed and the Governor signed on May 22, 2012 legislation that amended the Public Defender Act, so as to eliminate the statutory basis for the Court’s January 4, 2012 decision.  Responding to the Legislature’s action, some parties filed motions asking the Court to decide whether there was, nevertheless, a federal or state constitutional right to state-furnished counsel at initial appearances before District Court Commissioners, while others urged a remand for further development of the record.  In an order issued August 22, 2012, the Court rejected requests to remand the case and, instead, ordered further briefing and argument in proceedings before it, proceedings that eventuated in the decision that is the subject here.

[5] 33 Guild Prac. 152 (1976).

[6] The writer was one of Justice Brennan’s four law clerks during the October 1975 Term.  The Justice’s custom at the end of each term of Court was to give his law clerks a bound volume of the decisions in all cases in which the Justice himself had authored an opinion for the Court, submitted a concurrence or written in dissent.  In then recent years and prior to the October 1975 Term, that compilation never exceeded one volume, no more than three inches thick.  In the October 1975 Term, the compilation consisted of two volumes, each no less than three inches thick.  The reason was the explosion of concurring or dissenting opinions by Justice Brennan in the face of the onslaught that term against Warren Court principles and precedents.

[7] See Bolick, Brennan’s Epiphany:  The Necessity of Invoking State Constitutions to Protect Freedom, 12 Tex. Rev. Law & Pol. 137 (2007).

[8] Bolick, supra note 7, at 145-47.

[9] Id. at 153-58.

[10] County of Riverside v. McLaughlin, 500 U.S. 44, 57-58 (1991) ( allowing as much as a 48 hour delay between a warrantless arrest and a probable cause hearing as a “reasonable accommodation between legitimate competing concerns,” including the Fourth Amendment’s requirement that warrantless arrests be followed by a prompt judicial determination of probable cause); Baker v. McCollan, 443 U.S. 137, 145 (1979) (holding that a three-day detention over a holiday weekend did not amount to a denial of due process).

[11] Cf. Maryland Green Party, 377 Md. at 139, 832 A.2d at 221, quoting Dua, 370 Md. at 618 n.6, 805 A.2d at 1069-1070 n.6  and Frankel v. Board of Regents, 361 Md. 298, 313-314 n.3, 761 A.2d 324, 332 n.3 (2000) (“[B]y not reaching the federal constitutional issues ‘we do not suggest that the result in this case would be any different if the sole issue were whether the [statutes] violated the federal Constitution.’  We simply are making it clear that our decision is based exclusively upon the [Maryland Constitution] and is in no way dependent upon the federal [Constitution]” (emphasis added)).

[12] Cf. Bator, The State Courts and Federal Constitutional Litigation, 22 Wm. & Mary L. Rev. 605, 606 n.1 (1981) (“inappropriate for Supreme Court justices themselves to campaign to enact into unreviewable state constitutional law dissenting views about federal constitutional law which have been duly rejected by the United States Supreme Court”).

[13] Brennan, supra note 4, at 491.

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