author: Morton, J.,

text:
    COMPTROLLER OF THE TREASURY v. MAYOR AND CITY COUNCIL OF BALTIMORE
    [No. 753,
    September Term, 1980.]

      Decided March 9, 1981.

    The cause was argued before Morton, Wilner and Weant, JJ.

      Paul S. Sugar, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, and Thomas J. Mace on the brief, for appellant.

      Harry L. Chase, Assistant City Solicitor for Baltimore

      City, with whom was Benjamin L. Brown, City Solicitor for Baltimore City, for appellee Mayor and City Council of Baltimore; David B. Allen for appellee Shirley B. Allen.
   Morton, J.,

delivered the opinion of the Court.

This is an appeal by the State of Maryland acting through the Comptroller of the Treasury, Retail Sales Tax Division, from an order entered in the Superior Court of Baltimore City, dated May 7, 1980, directing the quashing of a writ of attachment served on the City of Baltimore at the direction of the Comptroller of the Treasury to garnish the wages owed to its employee, Shirley B. Allen, a teacher in the public school system of Baltimore City.

In this appeal by the Comptroller the following question is presented:

"Did the Court below err in quashing the writ of attachment served on the City by the State when it allowed the City to assert the defense of sovereign immunity in an action brought against it by the State?”

It appears that on July 25,1972, the Comptroller assessed Shirley B. Allen $6,542.57 for unpaid retail sales taxes, including interest and penalty. Pursuant to the provisions of Md. Ann. Code, art. 81, § 342 (b), the Comptroller on November 2, 1972, filed a lien against any property of Ms. Allen. Under date of October 18, 1979, the Comptroller had the clerk of the Superior Court of Baltimore City issue a writ of attachment and requested the sheriff to lay the writ of attachment "in the hands of the Mayor and City Council of Baltimore — Central Payroll Division, Garnishee, to bind the salary or wages owing the Defendant [Shirley B. Allen].” Baltimore City filed a motion to quash the writ of attachment on the ground that it "is a municipal government and is not subject to Attachment procedures.” On May 7, 1980, the court quashed the writ of attachment. This appeal followed.

Md. Ann. Code Art. 81, § 208, authorizes the Comptroller of the Treasury to institute attachment proceedings against delinquent taxpayers and there is no contention here by either Ms. Allen or the City of Baltimore that the retail sales tax assessment against Ms. Allen is not valid.

They contend, however, that because Baltimore City is a municipal corporation or government, it is absolutely immune from attachment procedures, including those brought by the State of Maryland. They point out that the "genesis of the rule in this State prohibiting the attachment of the salary of a municipal employee is found in Baltimore v. Root, 8 Md. 95 (1855).” In that case Root, a private citizen, laid an attachment in the hands of an official of Baltimore City seeking to garnish the wages of a Baltimore City police officer in order to satisfy a judgment obtained by Root against the officer. In reversing an order of the lower court approving the attachment, the Court of Appeals observed, at 100:

"It has been repeatedly held, that money due by the government to its officers or agents for services rendered by them as such, whilst it remains in the hands of the government or in the keeping of its disbursing agents, is not liable to be attached or seized by the creditors of those having such claims upon the government. This is certainly true in regard to those who hold appointments directly from State authority. The opposite theory would be calculated to produce serious interruptions in the course of public business, and hinder and delay, if not entirely prevent, in some instances, the accomplishment of very important measures, depending for their successful termination upon the prompt and regular supply of the funds on which the officers or agents have to rely.”

The Court went on to reason, at 102:

"As municipal corporations are parts of the State government exercising delegated political powers, for public purposes, the rule which prevents an attachment from being levied upon a claim of one State officer on funds in the hands of another, applicable to its payment, must apply with equal force to a case like the present. If an argument against the right to attach, based upon inconvenience, can have an influence in any case, it surely should do so where the officers of a large city are, necessarily, very numerous.”

Root, of course, involved the action of a private citizen and certainly lends no support, in our opinion, to the proposition advanced by the appellees that Baltimore City is immune from an attachment action brought by the State of Maryland. The appellees argue, alternatively, that "Governmental immunity may be waived only by an act of the General Assembly, and the Comptroller’s attempt to attach the wages of a municipal employee for sales taxes, if approved, would amount to a violation of the separation of powers doctrine . . . .”

It is true that the Court of Appeals has said that as a general proposition any waiver of immunity must emanate from the legislature (Bradshaw v. Prince George’s County, 284 Md. 294, 300 (1979)), but it is equally true that the Court of Appeals in Rockville v. Randolph, 267 Md. 56 (1972), had no trouble in approving an order of the trial court which directed the City of Rockville to make weekly deductions from the salary of a city employee to be applied toward the support of the employee’s illegitimate child. The Court of Appeals said, at 62:

"Here we have not a creditor in pursuit of the collection of a private debt, but a superior apparatus of government soliciting an order of court directing an inferior apparatus to hand over the part of money due an employee which is not a debt but an obligation to his dependent, absent the payment of which the superior apparatus must pay out of public funds a like amount to the employee’s dependent. We have said on a number of occasions that cities and counties are but local divisions of the state. Every municipal corporation remains a creature of the state and it is subject to absolute control by the Legislature.... We see little difference, if indeed there is any difference, between the situation before us and a direction by the state to a municipality to withhold a predetermined amount of the salary of each of its employees and hand it over to the Comptroller to be credited against the income tax liability of the individual.” (Citations omitted.)

We think this same approach should be followed in resolving the issue here since we see little or no difference in the State government directing a municipality to withhold periodic payments from an employee’s salary to be credited upon the employee’s income tax liability and the State government, through the aegis of a court order, directing a municipality to deduct payments from the salary of one of its employees to meet that employee’s obligation to pay retail sales taxes owing to the State government. We simply find no merit in the suggestion by Baltimore City that because the collection provisions of the income tax statute and those in the sales tax statute are not identical, this somehow makes the analogy untenable.

We think the proposition advanced in 18 McQuillan, Municipal Corporations, 209, § 53.24 (3rd Ed. Rev. 1977), with respect to municipalities’ general tort immunity, is sound and is completely supportive of the right of the Comptroller to proceed against Baltimore City in this action:

"[A] municipality derives its general tort immunity from the state because it is deemed to act as the state’s arm or agent when performing governmental functions. It has been stated, then, that it would be illogical to allow a municipality sued by the state to assert its immunity against the very source of that immunity. Consequently, it has been held that a municipality may not assert the defense of sovereign immunity in an action based upon its negligent performance of a governmental function brought by the state itself.” (Footnotes omitted.)

It seems to us that the interruptions, hindrances and delays in the course of the public business, visualized by the Root Court over a century ago, should not prevent the Comptroller of the State of Maryland, in this computerized, electronics age, from utilizing the facilities of Baltimore City to collect taxes conceded to be owed by one of the city’s employees.

In view of our holding, we fail to see any merit or relevancy in the final argument of Baltimore City that "[a] State agency loses its sovereign immunity when it files suit in a court of that State.”

Judgment reversed; costs to be paid by Mayor and City Council of Baltimore.


source: Caselaw Access Project

author:
      Weant, J.,
      Wilner, J.,

license: Public Domain

text:
    RICHARD S. KIRBY v. STATE OF MARYLAND
    [No. 762,
    September Term, 1980.]

      Decided March 9, 1981.

    The cause was argued before Morton, Wilner and Weant, JJ.

      Peter M. Levin, Assigned Public Defender, with whom was Alan H. Murrell, Public Defender of Maryland, on the brief, for appellant.

      Richard B. Rosenblatt, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General of Maryland, Sandra A. O’Connor, State’s Attorney for Baltimore County, and Dana Levitz, Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Weant, J.,

delivered the opinion of the Court. Wilner, J., filed a concurring opinion at page 211 infra.

On 12 March 1980, a jury in the Circuit Court for Baltimore County found the appellant Richard S. Kirby guilty of assault and assault with intent to rape. As a consequence the appellant was committed to the custody of the Department of Correction for a fifteen year period. Having noted a timely appeal, Mr. Kirby presents the following questions:

I. Did the trial judge abuse [its] discretion by admitting, for impeachment purposes, evidence of a twenty-five year old sodomy conviction obtained when Appellant was seventeen years old?
II. Did the trial court err in denying defense counsel the opportunity to ask the complaining witness on cross-examination if she was under the care of a psychiatrist?
III. Was Appellant’s arrest illegal due to lack of probable cause that he had committed a felony, therefore requiring that any evidence obtained as a result of the arrest should have been excluded?
IV. Was the evidence adduced at trial legally insufficient to establish Appellant’s criminal agency?

Because we find that all of these queries warrant negative responses, we shall affirm the challenged conviction.

I.

In 1956, when he was seventeen years old, the appellant was convicted of sodomy. Despite Mr. Kirby’s objection, the trial court allowed the prosecution to use this conviction to impeach his credibility. It was and is Mr. Kirby’s contention that

[t]he extreme remoteness of the sodomy conviction, the fact that [he] was a juvenile under today’s standards when he was convicted and the prejudicial similarity to the offense with which [he] was on trial all required that the trial court, in [its] discretion, rule the conviction inadmissible for impeachment purposes.

In our recent opinion of Burrell v. State, 42 Md. App. 130, 399 A.2d 1354 (1979), this Court reviewed the status of Maryland law with regard to impeachment of witnesses by a showing of a prior conviction. There, quoting Cousins v. State, 230 Md. 2, 4-5, 185 A.2d 488, 489 (1962), we said at pages 138-39, 399 A.2d at 1359:

"It has been held by this Court that evidence of the accused’s previous conviction of crime need not be restricted to infamous crimes or those involving moral turpitude, provided the violation of law may have some tendency to show that the person charged is not to be believed under oath. ... In such instances the exercise of discretion by the trial judge will not be interfered with on appeal unless the fact of the prior conviction is clearly irrelevant... . Where the conviction was for a crime not infamous, the length of time since it occurred considered with the nature of the crime has been deemed pertinent in citing relevancy. .. . We think that where the prior conviction was for an infamous crime, evidence of it is admissible without reference to the time of its commission, for such bearing and weight on credibility as the trier of fact may give it under the circumstances.” [Citations omitted].

The foregoing pronouncement prompts the following observations.

First, while we have been cited no case or cases wherein it has been stated definitively that sodomy is an infamous crime, we are convinced that it is such. In W. Clark and W. Marshall, A Treatise on the Law of Crimes (4th ed. 1940), the authors state at section 464 that "[sjodomy or buggery is spoken of by the courts and in statutes as 'the unnatural crime,’ or 'the crime against nature.’ It is so disgusting a crime against morality and decency that it is punished by the common law, not as a misdemeanor merely, but as a felony.” Maryland in turn has held an infamous crime to be

such crime as involve[s] moral turpitude, or such as render[s] the offender incompetent as a witness in court, upon the theory that a person would not commit so heinous a crime unless he [is] so depraved as to be unworthy of credit. I Abbott’s Law Die. 602, and authorities there cited. The General Court of State in Evans v. Bonner, 2 H. & McH. 378, defined "infamous crime” to be one which rises at least to "the grade of felony.”

State v. Bixler, 62 Md. 354, 360 (1884). See also Black’s Law Dictionary 335 (5th ed. 1979), wherein infamous crime is defined as follows:

A crime which entails infamy upon one who has committed it. The term "infamous” — i.e., without fame or good report — was applied at common law to certain crimes, upon the conviction of which a person became incompetent to testify as a witness, upon the theory that a person would not commit so heinous a crime unless he was so depraved as to be unworthy of credit. These crimes are treason, felony, and the crimen falsi. A crime punishable by imprisonment in the state prison or penitentiary, with or without hard labor, is an infamous crime, within the provision of the fifth amendment of the constitution that "no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury.” Mackin v. U.S., 117 U.S. 348, 6 S.Ct. 777, 29 L.Ed. 909; Brede v. Powers, 263 U.S. 4, 44 S.Ct. 8, 68 L.Ed. 132. It is not the character of the crime but the nature of the punishment which renders the crime "infamous.” Whether an offense is infamous depends on the punishment which may be imposed therefor, not on the punishment which was imposed. United States v. Moreland, 258 U.S. 433, 42 S.Ct. 368, 370, 66 L.Ed. 700,

and Maryland Annotated Code article 27, section 553, which holds that "[e]very person convicted of the crime of sodomy shall be sentenced to the penitentiary for not more than ten years.” Therefore, in accordance with present day Maryland law, evidence of Mr. Kirby’s sodomy conviction was " 'admissible without reference to the time of its commission . . .’” Burrell, supra, 42 Md. App. at 139, 399 A.2d at 1359 (quoting Cousins, supra, 230 Md. at 5, 185 A.2d at 489).

Second, despite our reliance on Burrell’s proposition that "'where the prior conviction was for an infamous crime, evidence is admissible without reference to the time of its commission,’ ” we are uncomfortable with the thought that had the sodomy conviction in the instant case (or any infamous crime conviction for that matter) been a single, isolated incident, the prosecution could have used such to impeach Mr. Kirby, even after such a lengthy passage of time as twenty-fíve years. Nevertheless, such is the law.

Finally, we note that a contrary conclusion is not warranted even though Mr. Kirby was only seventeen years old when he was convicted of sodomy, since at that time the law regarded him an adult.

II.

During cross-examination of the complaining witness at the proceedings below, the appellant desired to elicit from her the fact that she had been seeing a psychiatrist for a period of at least six years prior to trial. By doing so, the appellant sought to impeach the credibility of the victim. The trial court refused to allow Mr. Kirby to so impeach the prosecutrix, although it did say that he could ask her if she had “ever hallucinated, questions of that nature,” e.g., "does she forget, does she have a bad memory, does she have bad vision ... [d]oes she have problems hearing, is she color blind et cetera.” He declined to so question the witness.

Since, "the scope of cross-examination is within the discretion of the trial judge, and grounds for reversal will occur only when there is an abuse of discretion,” Connor v. State, 34 Md. App. 124, 133, 366 A.2d 385, 391 (1976) (citations omitted), we are unable to say that the trial court erred in its restriction of cross-examination to only those questions which would in fact have tested the witness’ credibility, especially in the light of the appellant’s failure to pursue unrestricted, relevant matters.

III. and IV.

A reading of the record convinces us that the insufficiencies complained of are nonexistent.

As to the allegedly illegal arrest, the record shows that on 31 August 1979, while patrolling by vehicle the 700 block of Frederick Road in Catonsville, Corporal Larry Kessler of the Baltimore County Police Department was flagged down by a woman, the prosecutrix herein, and advised by her that she had been sexually assaulted several weeks previously and that the gentleman walking westbound on the opposite side of the road was responsible for said assault. After stopping the gentleman in question, and after the prosecutrix again identified him as her assailant, Officer Kessler had the man now known to be the appellant arrested. In the light of the foregoing, we cannot say that Mr. Kirby’s warrantless arrest was illegal.

Maryland Annotated Code article 27, section 594B (c) states that "[a] police officer may arrest a person without a warrant if he has probable cause to believe that a felony has been committed or attempted and that such person has committed or attempted to commit a felony whether or not in his presence or view.” Therefore if Officer Kessler had probable cause to believe that the prosecutrix had been sexually assaulted by the appellant, then his arrest of Mr. Kirby was justified. We in turn find that the requisite probable cause was supplied by the victim. See Evans v. State, 11 Md. App. 451, 274 A.2d 653, cert. denied, 262 Md. 746 (1971). Because the warrantless arrest of Mr. Kirby was legal, any evidence obtained as a result need not have been excluded at trial.

As to the lack of proof of the appellant’s criminal agency, we believe that the victim’s positive identification of Mr. Kirby as her attacker, "if believed by the trier of facts, [which was so in this case,] is ample evidence to sustain a conviction.” Montague v. State, 3 Md. App. 66, 71, 237 A.2d 816, 820, cert. denied, 250 Md. 732 (1968) (citations omitted).

Accordingly, we find that the appellant’s arrest and subsequent conviction were proper, and that the judgment of the Circuit Court for Baltimore County must therefore be affirmed.

Judgments affirmed.

Costs to be paid by the appellant.

Wilner, J.,

concurring:

I concur entirely with the Opinion authored by Judge Weant and indeed join it. I file this separate concurring Opinion to emphasize that which I could only suggest in the Appendix to Burrell v. State, 42 Md. App. 130, 147, et seq. (1979); namely, that in using an infamous — non-infamous criterion to determine the admissibility of prior convictions to impeach the credibility of a testifying defendant, Maryland is completely out of step with modern day thinking and with most of the rest of the country.

As Judge Weant noted, we are indeed uncomfortable with the notion that a 25-year old sodomy conviction, standing alone, would be admissible for the presumed purpose of impeaching a defendant’s credibility. Yet, by statute (Courts article, § 10-905) and judicial determination (see Cousins v. State, 230 Md. 2 (1962)), that is permissible in this State. It ought not to be.

The law engages in many fictions; some are harmless, some are helpful or even necessary. This one is neither. It simply defies reason to theorize that a person may not be a truthful witness because 25 years ago he was convicted of sodomy, especially when we have no idea of the facts upon which the conviction was based. Such a conclusion — even if one accepts the underlying premise that there is some relationship between the disposition to commit such a crime and the disposition to be untruthful — flies in the face of the one basic principle accepted by nearly every discipline in our society, that people can change.

Certain types of past criminal behavior, if exhibited in the relatively recent past, can very well and legitimately influence a jury’s perception of one’s present credibility. But there has to be some balance, and the balance should not be struck on the basis of whether the crime was infamous or not infamous. It seems to me that, aside perhaps from actual peijury, no crime should be presumed capable of casting permanent doubt on a person’s credibility. Unless a prior conviction can be shown to be part of a general and persistent pattern of criminal conduct, where the pattern itself may be indicative of untruthfulness, I think that some form of statute of limitation ought to be imposed on the use of prior convictions for impeachment purposes.

I hope that the Court of Appeals or the General Assembly will take another look at this issue in light of plain reality and what Congress and other States have done.


author: Wilner, J.,

text:
    GERALDINE POKEY COLLINS, Individually, etc. v. THE BOARD OF EDUCATION OF KENT COUNTY
    [No. 807,
    September Term, 1980.1

      Decided March 9, 1981.

    The cause was argued before Thompson, Melvin and Wilner, JJ.

      David M. Williams for appellants.

      E. Dale Adkins, III, with whom were Anderson, Coe & King on the brief, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

When, on April 23, 1979, sixteen-year old Oscar Grinnell decided to ride home from school with his friend and fellow student Jimmy Styons rather than take the school bus, he made a tragic mistake. Jimmy was involved in a head-on collision when he attempted, improperly, to pass a school bus, and Oscar was seriously injured in the crash.

Oscar’s mother, appellant here, sought recompense for her son’s injuries; but in the judgment of the Circuit Court for Kent County, she has sought it from the wrong person. She sued the county board of education on a most novel theory. By sustaining the board’s demurrer, however, the court indicated its unwillingness to adopt that theory; and we think its position was a correct one.

Appellant’s First Amended Declaration, to which the demurrer in question responded, contained three operative counts, each proposing a different sub-theory of recovery. It was alleged, in an introductory part of the complaint, that (1) Oscar was properly enrolled at the Kent County High School, a "consolidated” school operated by the board; (2) as the school was more than a mile from Oscar’s home, the board had a statutory responsibility (Education article, § 4-119) to transport Oscar to and from the school; (3) school board rules and regulations required Oscar to ride the school bus; (4) Oscar rode the bus to school that morning; (5) appellant rightfully expected that Oscar would be "safely returned to her custody, safety, supervision and control at the place where he boarded said school bus in the morning”; and (6) the board "negligently breach[ed] its numerous duties owed to [appellant] to arrange for safe transportation home for [Oscar]” for the reasons set forth in the three ensuing counts.

Count A complained that the board negligently violated its duty under Education article, § 4-119 when it "knowingly and negligently permitted” Oscar to get into a vehicle with Jimmy Styons without appellant’s permission, knowing that such form of transportation was unauthorized and with "knowledge from which it should have been known that the student [Oscar] foreseeably was riding home from school in a vehicle being driven by a student who was one of a number of students that habitually drove home from school in a speedy, reckless, hazardous and unsafe manner or would probably drive home from school in the aforesaid negligent fashion. . . .” Thus, said appellant, the board violated its duty to provide Oscar with safe transportation.

Count B repeated everything alleged in Count A, and asserted as a purportedly distinct cause of action, a violation by the board of its duty to enforce its bylaws, rules, regulations, and policies pursuant to § 4-107 of the Education article. The bylaws, etc. allegedly violated were those "relating to permits for student driving and parking privileges,” although the Amended Declaration did not specify what particular bylaw, rule, regulation, or policy was transgressed.

Count C also repeated everything alleged in Count A and, in somewhat of an antithesis to Count B, charged that the board had negligently failed to adopt rules, regulations, and policies to assure that students dutifully got on their designated buses, and that they did not ride in private vehicles without their parents’ permission.

Finally, in a concluding statement that, grammatically, seemed to be a part of Count C but perhaps was intended to apply to all three counts, it was alleged that the board, with the exercise of ordinary care, knew or should have foreseen that an accident would occur, and that the injuries resulting to Oscar were the "direct and proximate result” of the board’s negligence.

After hearing argument, the court sustained the board’s demurrer to Counts A and C without leave to amend, concluding, respectively, that § 4-119 does not impose the type of duty alleged by appellant and that there was no legal requirement for the board to adopt regulations prohibiting a student from riding home in a private automobile without his parent’s permission. The court also sustained the demurrer to Count B, but offered leave to amend if appellant could properly allege that an agent of the board responsible for regulating student departures had actual knowledge that Jimmy Styons was a reckless driver, and could have prevented Oscar from leaving with him. Appellant responded that she was unable to make such an allegation, whereupon the court sustained the demurrer to Count B without further leave to amend.

Appellant does not complain here about the court’s declination of further leave to amend. The question is whether, upon the Amended Declaration as it stands, she has stated a cause of action.

As the case reaches us, procedurally, upon the sustaining of a demurrer, we must, in looking at the Amended Declaration, assume the truth of all facts well pleaded. The question before us is not one of fact, however, but one of law. In short, did the county board of education have a legal responsibility to make certain that Oscar got on his designated school bus; did it have a legal responsibility to prevent him from securing alternate means of transportation, specifically with Jimmy Styons; and is it answerable in damages if it had those responsibilities and did not properly discharge them?

We start with Count A and § 4-119. That section provides (1) "[i]f a county board considers it practicable, it shall consolidate schools,” and (2) "[s]ubject to the approval of the State Superintendent [of Schools], each county board shall arrange for the transportation of students to and from consolidated schools.”

Section 4-119 ultimately derives from Acts of 1904, ch. 584. At that time, the counties were subdivided into school districts. One of the principal functions of the county school commissioners, the forerunners of the county boards of education, was to set, and alter, the boundaries of those districts and to select suitable sites within the various districts for the erection of schools. There was no specific statutory direction as to the consolidation of schools, although the power to consolidate would seem to have been implicit. See, for example, Acts of 1872, ch. 377, ch. 1V-VI. The 1904 Act which rewrote a good bit of the State education article, authorized the county school commissioners "to consolidate schools when, in their judgment, consolidation is practicable and desirable, and to arrange for and pay charges of transporting pupils to and from such schools.”

In 1916, this authorization became a direction. By Acts of 1916, ch. 506, the next major recodification of the education laws, the General Assembly provided that the county board "shall consolidate schools wherever in their judgment it is practicable, and arrange, when possible without charge to the county, and shall pay, when necessary, for the transportation of pupils to and from such consolidated schools.” The direction to consolidate schools was, of course, reflective of the public policy that the little one-room red schoolhouses reminiscent of the education of young Abe Lincoln were becoming dysfunctional, and that larger, more centrally located schools serving a wider "catchment” area were desirable. The need to provide transportation for the children required to attend the consolidated schools was a natural by-product of that centralization. As the Court of Appeals said of that provision in Adams v. County Commissioners of St. Mary’s County, 180 Md. 550, 555 (1942), it was "obviously passed to meet a need arising from removal, in the consolidation, of schools from the former local neighborhoods and the consequent increase of distance to be traveled by some children.”

The provision, as enacted in 1916, survived the 1969 rewriting of article 77 and, with but inconsequential style changes, the 1978 recodification that produced the Education article.

There is nothing in the plain wording of § 4-119, much less in its legislative history and purpose, to suggest the connotation sought to be placed on the statute by appellant. The board is required to "arrange for the transportation of students”; and, from what is alleged in the Amended Declaration, it has done so by providing school buses. By making a school bus available, it gave Oscar the means of getting to and from school; and that is all it was required to do under § 4-119. The statute does not make the means arranged by the board the exclusive mode of travel for each pupil eligible for the public transportation, and it certainly does not of itself impose any obligation on the board to assure that the students — particularly high school students — use the means provided by the board.

Count B, as noted, charged a failure by the board to enforce its regulations pertaining to permits for student driving and parking privileges. Those regulations were not specified in the Amended Declaration, but, upon demand by appellee, a document entitled "Kent County High School Student Parking Policy” was sought to be added as part of the Amended Declaration. Assuming (without deciding) that the provisions of the student parking policy could be so incorporated into the pleading, there is still absent any allegation of what policy was violated. We see nothing in the "Student Parking Policy” that prohibits a student from riding home with a friend or that requires school officials to compel the student to ride the school bus; and, to the extent s that it might be relevant, there is no allegation that, at the time Oscar left, his friend Styons was in violation of the Student Parking Policy.

What seemed to concern the court with respect to Count B ' was the common law duty that school authorities have, as the temporary custodians of children, to exercise reasonable care for their protection (which is a matter quite different from any alleged violation of student parking regulations). See, in general, Lunsford v. Board of Education of Prince George’s County, 280 Md. 665 (1977). But absent the type of more particular allegations that the court indicated it would accept — that the school officials had reason to know that Styons was a careless driver and that they could have prevented Oscar from riding with him — there is simply no breach of duty alleged from which damages can flow. Guilt by association or inclusion in a class has its limits; knowledge that some students are reckless does not imply knowledge that all students are reckless, or that Jimmy Styons in particular was reckless. Compare, for example, Hanson v. Reedley Joint Union High School District, 111 P.2d 415 (Cal. App. 1941); and cf. Segerman v. Jones, 256 Md. 109 (1969).

Count C, as noted, charged a failure to adopt regulations of a sort that, in appellant’s view, may have allowed this tragic accident to be averted. But we can find nothing in the law that placed any duty upon the county board to adopt the type of regulations suggested by appellant; and we therefore can find no liability on its part for not having done so.

Judgment affirmed; appellant to pay the costs.

      . There are a number of other provisions in the Education article dealing with the transportation of students, but they have not been mentioned or relied upon by appellant, and we therefore shall not consider them. See, for example, §§ 5-201 (c) and 2-205 (j) dealing with State financing of transportation costs, § 7-601 authorizing county boards to provide additional transportation services, and § 8-412 providing for the transportation of handicapped children.


author: Gilbert, C. J.,

text:
    STATE OF MARYLAND v. ROBERT LEE THOMPSON
    [No. 852,
    September Term, 1980.]

      Decided March 9, 1981.

    The cause was argued before Gilbert, C. J., and Morton and Moore, JJ.

      Richard B. Rosenblatt, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Ralph M. Murdy, Assistant State’s Attorney for Baltimore City, on the brief, for appellant.

      Arthur M. Frank, with whom were Nathanson & Frank, P.A. on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

Apparently aggrieved at appellee’s acquittal by a jury in the Criminal Court of Baltimore on narcotic charges, an Assistant State’s Attorney opted to reopen a stet in another case that had been entered as the result of a plea bargain. The appellee, Robert Lee Thompson, vigorously resisted the effort to reopen the stet and filed a "Motion to Enforce a Plea Agreement.” The matter was heard before Judge Joseph I. Pines, and he granted the appellee’s motion. The State appealed.

The single issue posited by the State is "[w]hether the trial court erred in dismissing the criminal informations against Appellee as a result of its determination that removal of the cases from the stet docket would be unfair and inequitable.”

THE FACTS —

On May 15, 1979, the State called to trial two Criminal Informations charging the appellee with violations of the Controlled Dangerous Substances Act. Negotiations took place between the State and the appellee. It was agreed, according to Timothy Doory, Esq., an Assistant State’s Attorney, that "the ... [appellee, Thompson,] would make a good faith effort to provide some information to the cases that the district officers were interested in within the next 60 days, that the [State’s] case [against appellee] would then be, we would stet the case that day based on his assurance of a good faith effort.”

Inasmuch as the stet was to be entered in open court, and because of the possibility of jeopardizing the appellee, the reason for the stet stated in the record "was because the State was not in a position to try the case at... [that] time.” The true reason, however, was made known to Judge Grady before the false reason was supplied in open court.

Mr. Doory further testified before Judge Pines that it was agreed that if appellee fulfilled his part of the bargain, "the stet for all intents and purposes would have remained in effect. The case would have never been recalled and would have just died its natural death.”

On cross-examination Doory acknowledged that, to the best of his recollection, "there was no mention” of the effect on the agreement with respect to any subsequent offense. It was not a condition of the stet that appellee refrain from subsequent criminal conduct. We make clear that Mr. Doory was not the Assistant Prosecutor who sought to reopen the stet.

Other testimony adduced by the appellee indicated that he had made good on his part of the bargain. The effort to reopen the stet was made on January 9,1980, approximately eight months after it had been entered and six months after the appellee’s part of the bargain had been completed.

The prosecutor resisted the appellee’s motion to enforce the "plea agreement” on the ground that "[w]e are dealing with a stet, not a plea bargain.” The thrust of his contention to Judge Pines was that because Thompson did not plead guilty to any charge, there could be no plea bargain. In short, he advanced the turbid theory that a plea bargain "involves a plea,” while a stet involves no plea by an accused. That argument is novel but unavailing.

The prosecutor in the instant case is the same one that unsuccessfully sought Thompson’s conviction on subsequent narcotic charges. He argued to the trial court that "[t]he fact that the Jury found.. . [appellee] not guilty does not indicate that there was no probable cause for the charge and that is in fact brought out even further by the fact that the case went to the Jury.”

Whether probable cause for the bringing of the subsequent charge existed is totally irrelevant. The "bottom line” is that the jury found appellee not guilty and acquitted, him of the charges. That the prosecutor did not share that view matters not one whit.

The crystalline inference that permeates the record in this case is that the Assistant State’s Attorney was piqued because of the jury’s verdict, and he seized upon the stet as a way of balancing the scales. In fact, he told Judge Pines that if the jury had convicted the appellee, the instant case would have been closed.

Despite the State’s unusual view of the agreement entered into between it and the appellee, we think it unmistakable that a "plea bargain” was struck. A "plea bargain” may take many forms; it is multivious in nature. For example, in exchange for information concerning criminal activity, the State may agree to nol pros a case against the informer; for other information, it may agree to confess not guilty. It is also possible that the State, in consideration of the receipt of information, may agree not to seek an indictment of the informer. Obviously then, the State may enter into an agreement with an accused to do exactly what it did in the instant case, namely stet the indictment in exchange for cooperation.

A "plea bargain,” by any other name, remains a plea bargain. It is the substance of the agreement, not the name it is given, to which we look in order to determine whether a pact was struck.

We think that once the State has made a bargain, it is bound to adhere to the agreement so long as the accused performs his part, and we eschew the State’s attempt by semantics to renege on its covenant.

The office of State’s Attorney is a public trust. The awesome power, vested by the people in the State’s Attorney, should not be employed for the purpose of applying balm to a wounded ego or to the fulfillment of a personal vendetta. See generally Sinclair v. State, 278 Md. 243, 363 A.2d 468 (1976).

A plea bargain, the Court of Appeals declared in State v. Brockman, 277 Md. 687, 694, 357 A.2d 376, 381 (1976), aff'g Brockman v. State, 27 Md. App. 682, 341 A.2d 849 (1975), is "entitled to judicial enforcement,” citing Santabello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495, 499, 30 L. Ed. 2d 427 (1971). See also Miller v. State, 272 Md. 249, 322 A.2d 527 (1974); Sturgis v. State, 25 Md. App. 628, 336 A.2d 803 (1975). Judge Pines did exactly what the appellate decisions directed him to do, and we, accordingly, affirm his order.

Order afñrmed.

Costs to be paid by the Mayor and City Council of Baltimore.

      . We use the term "plea bargain” in its broad sense as meaning any agreement between the prosecutor and the defendant whereby a defendant agrees to perform some act or service in exchange for more lenient treatment by the prosecutor. We do not use the term in its narrow sense as in Md. Rule 731.


author: Liss, J.,

text:
    CHESAPEAKE RANCH CLUB, INC. v. FRANCES W. FULCHER et al.
    [No. 719,
    September Term, 1980.]

      Decided March 10, 1981.

      The cause was argued before Liss, MacDaniel and Weant, JJ.

      Glenn B. Harten for appellant.

      Steven L. Clagett for appellee Board of County Commissioners for Calvert County.
   Liss, J.,

delivered the opinion of the Court.

Chesapeake Ranch Club, appellant, submitted to the Zoning Board of Calvert County an application for the reclassification of an 8.034 acre parcel of land. The parcel is a peninsula located on the southern tip of Calvert County and fronts on both the Chesapeake Bay and the Patuxent River. The nearest major highway is approximately one mile away. When the original zoning ordinance was adopted in 1967, the subject property was zoned C-2, Highway Commercial. This classification was granted at the request of the owner of the parcel at that time. Appellant, the current owner, sought to have the parcel reclassified as C-3, Marine Commercial, on the grounds that the original C-2 classification was a mistake and that a C-3 classification was more appropriate to the land. This change would permit appellant to construct a marina on the property which is otherwise prohibited under a C-2 classification.

The property here involved is located in a largely residential community known as Drum Point which was developed in the early 1960’s by Paul Kerman, of the Drum Point Corporation. The property was formerly used as the "Surf and Sand Club,” and was open to the general public. It included a snack bar and swimming facilities. The Surf and Sand Club was closed in August of 1969 and has fallen into disrepair since that time.

The record discloses that although the original developer had requested and obtained C-3 zoning classifications for other parcels he owned in 1967 (when the original zoning ordinance was adopted), he nevertheless elected to have the subject parcel classified as C-2. In August of 1969, Drum Point Corporation conveyed several pieces of property to appellant herein by deed recorded among the land records of Calvert County. In reference to the subject property, the deed states that the parcel includes "the beach club building zoned C-2 (for motels).”

When the application for rezoning was filed, the Planning Commission of Calvert County undertook a review of the request by soliciting comments from related governmental agencies and the general public. The Commission further requested the applicants to submit a proposal for their intended use of the property should the rezoning be granted. The Department of Planning submitted its report to the Calvert County Planning Commission, which recommended that the petition for rezoning be denied.

Public hearings were held before the Board of County Commissioners, sitting as a zoning board, in August and September of 1979. At the hearing appellant relied solely on the contention that there was a mistake in the original zoning classification. Appellant never argued that there was a substantial change in the character of the neighborhood which would warrant a rezoning.

The applicant presented four witnesses at the hearing who testified to the following: (1) Ralph Smalley, contract purchaser of the property, testified that the marina would consist of six piers or docks, which would be protected by a floating breakwater; (2) Steven Peterson, a traffic planning and engineering consultant, testified that if the property is utilized in its present C-2 Highway Commercial status, more traffic would be generated than would result from the applicant’s plan for a marina; (3) Owen Jones, a real estate appraiser and consultant, testified that the optimal use of the property would be obtained under a C-3, Marine Commercial classification; and (4) Bruce Philipson, president of Chesapeake Ranch Club, Inc., testified that the construction of a marina would be compatible with the water oriented character of the neighborhood and would increase the tax base of the County. The applicant also adduced evidence from the original developer that he was unaware of the distinction between C-2, Highway Commercial, and C-3, Marine Commercial when he originally applied for zoning.

In opposition to the rezoning, the Board of County Commissioners heard testimony from several governmental agencies. The Maryland Natural Resources Police stated that "a marina of this type . . . would be hazardous to navigation and would not benefit this location.” The Calvert County Health Department expressed its concern as to the potential source of pollution and danger to area shellfish from the proposed use of the property. This concern was corroborated by the Environmental Health Administration. Others who testified in opposition to the rezoning included the president of the Drum Point Property Owner’s and Citizen’s Association and several private citizens — many of whom had specific expertise because of prior experience with technical deficiencies of the planned marina. These citizens expressed strenuous objection to the traffic hazards which they contended would be created by the marina. They questioned the need for such a facility and contended it would be a hazard to navigation. They also raised the issues as to the potential for shoreline erosion, the detrimental impact on water quality and shellfish production, and the general incompatibility with the existing and proposed development of the area.

After reviewing the evidence, the Board of County Commissioners upheld the Planning Commission’s recommendation and passed resolution No. 26-79 which denied the rezoning application. Their decision was subsequently affirmed by the Circuit Court for Calvert County by opinion and order dated June 30, 1980. From that judgment, Chesapeake Ranch Club, Inc. appeals. Three issues are raised for this Court to determine:

1. Whether the zoning board erred in finding that there had not been a mistake in the original zoning classification of the subject property?
2. Whether the zoning board erred in not reclassifying the subject property from Highway Commercial to Marine Commercial?
3. Whether the zoning board made an improper finding of fact in its decision to deny appellant’s request for reclassification?

1. and 2.

The Court of Appeals has held on numerous occasions that zoning and rezoning classifications are legislative functions. The role of the courts in zoning matters consists of a review of the zoning authority’s decision-making process to ensure that it has not acted arbitrarily, capriciously or unreasonably. Absent any of these irregularities, the courts will leave untouched the quasi-judicial decision of the zoning authority. This case imposes a particularly heavy burden upon appellant because it involves an attempt to amend an original zoning map. Appellant must therefore overcome the strong presumption of correctness which attaches to such original zoning. Valenzia v. Zoning Board, 270 Md. 478, 312 A.2d 277 (1973).

Appellant concedes that the law governing this case is found in Luxmanor Citizen’s Assoc., Inc. v. Burkart, 266 Md. 631, 296 A.2d 403 (1972), where the Court of Appeals held:

The law is well settled in Maryland that upon appeal from the action of a zoning board, if that action is supported by any substantial evidence, then the matter before it was "fairly debatable” and the lower court should not substitute its judgment for that of the administrative body. On the other hand, if the action of the board was not supported by any substantial evidence, then such action was arbitrary and capricious and results in a denial of due process of law prohibited by Art. 23 of the Declaration of Rights in the Constitution of Maryland and should be reversed for this reason. [266 Md. at 647.]

Appellant introduced into evidence a letter written by the original developer which purports to indicate that he did not know the difference between C-2, Highway Commercial, and C-3, Marine Commercial, when the subject parcel was originally zoned. However, the Board of County Commissioners had before them substantial evidence which, if believed, raised the question as to whether the zoning was in fact originally mistaken. It is clear that the original developer requested a C-2 classification for the subject parcel and at the same time requested C-3 classifications for other properties which he owned. It is further evident that the original developer knew of the existence of the C-2 classification and its effects since the deed in which he conveyed the subject property described the property as "the beach club zoned C-2 (for motels).” We feel that the existence of this evidence rendered the matter before the board "fairly debatable” and the decision of the administrative body should therefore be left untouched.

Assuming, arguendo, that there was a mistake in the original zoning classification, the mistake was not of sufficient character to warrant the rezoning requested by appellant. In order for a mistake to be a legally justifiable basis for rezoning, there must have been a basic and actual mistake by the legislative body at the time the property was originally zoned. Pattey v. Board of County Commissioners of Worcester County, 271 Md. 352, 317 A.2d 142 (1974). It is clear from the record that had there been a mistake, the mistake was on the part of the original developer in requesting the C-2 classification; not by the legislative body in granting the request. Moreover, the existence of a mistake by the zoning authority at the time of the original zoning merely permits the legislative body to grant the reclassification but does not require it to do so. Hardesty v. Dunphy, 259 Md. 718, 271 A.2d 152 (1970). It is clear from the record that the Board of County Commissioners exercised its option not to grant the reclassification when it stated in its resolution, "there is no mistake in the existing zoning that would warrant a change to Commercial C-3.”

In light of the evidence before the zoning board, we conclude that the matter before the board was "fairly debatable” and that there was ample evidence to support its conclusion.

3.

Finally, appellant argues that the resolution of the County Commissioners did not comply with Article 23.02 of the Calvert County Zoning Ordinance in that there were insufficient findings of fact. Article 23.02 states:

Procedure for Adopting Changes.
Zoning regulations, restrictions and district boundaries may from time to time be amended, supplanted, modified or repealed. Where the purpose and effect of the proposed amendment is to change the zoning classification, the County Commissioners shall make finding of fact in each specific case including, but not limited to, the following matters: Population change, availability of public facilities, present and future transportation patterns, compatibility with existing and proposed development for the area, the recommendation of the Planning Commission, and relationship of such proposed amendment to the County Comprehensive Plan; and may grant the amendment based upon a finding that there was a substantial change in the character of the neighborhood where the property is located or that there was a mistake in the existing zoning classification. A complete record of the hearing and the votes of all members of the County Commissioners shall be kept.

Had the County Commissioners acceded to appellant’s request to amend, supplant, modify, repeal, or reclassify the existing zoning on the subject parcel, perhaps more detailed findings of fact would have been necessary. However, the County Commissioners denied the reclassification on the basis of issues which were fairly debatable and therefore did not require the specific factual findings (as to population change, availability of public facilities, etc.) as mandated by the zoning ordinance.

In support of its position, appellant cites three decisions handed down by the Maryland Courts. We find the cases to be inapposite to the issues here involved. It should be noted that each of these cases involved situations in which reclassifications were granted rather than rejected. Furthermore, the basis for reclassification in these cases involved alleged changes in the character of the neighborhood as opposed to a mistake in the original zoning. It is obvious from our reading of the record that the Board did not consider the findings of fact as to population change, transportation patterns, etc. applicable to this case. The burden of proof falls on the person seeking the zoning reclassification. See Messenger v. Board of County Commissioners for Prince George’s County, 259 Md. 693, 271 A.2d 166 (1970). We conclude that the Board of County Commissioners of Calvert County, sitting as a zoning board, made adequate findings of fact to support the fairly debatable issue before it in this case.

Judgment affírmed, costs to be paid by appellant.

      . Chevy Chase Village v. Montgomery County Council, 258 Md. 27, 264 A.2d 861 (1970); Montgomery v. Board of County Commissioners for Prince George’s County, 256 Md. 597, 261 A.2d 447 (1970); Sedney v. Lloyd, 44 Md. App. 633, 410 A.2d 616 (1980).


author: MacDaniel, J.,

text:
    MICHAEL T. ATHANASON v. HELENE C. ATHANASON
    [No. 834,
    September Term, 1980.]

      Decided March 10, 1981.

    The cause was argued before Moylan, Melvin and MacDaniel, JJ.

      Andrew W. Dyer, with whom were Dyer & Dyer on the brief, for appellant.

      Marvin E. Perlis, with whom were Perlis & Pincus and Michael B. Schwartz on the brief, for appellee.
   MacDaniel, J.,

delivered the opinion of the Court.

Michael T. Athanason appeals a Decree of Divorce a vinculo matrimonii entered March 19, 1980, in the Circuit Court for Montgomery County. He asks us to consider whether Title 3, Subtitle 6A of the Maryland Courts and Judicial Proceedings Article (Property Disposition in Divorce and Annulment) applies to a Supplemental Bill of Divorce which was filed after the Subtitle’s effective date, but which relates to an action instituted prior to that effective date. The chancellor ruled that the statute in question did apply to the supplemental bill, but we disagree and so shall remand for further proceedings.

Appellant and appellee Helene C. Athanason were married July 24, 1966. On April 20, 1978, appellee filed a Bill of Complaint for Divorce a mensa et thoro alleging constructive desertion. On March 15, 1979, in the same case, appellee filed a Supplemental Bill of Complaint for Divorce a vinculo matrimonii. Appellee re-alleged the grounds stated in her original Bill, and in addition alleged that the parties had lived separate and apart, without cohabitation, for the statutorily prescribed twelve-month period. Appellee also prayed for the relief available under Subtitle 6A, "Property Disposition in Divorce and Annulment,” of Title 3 of the Maryland Courts and Judicial Proceedings Article. That is to say, she requested that the parties’ residence be declared a "Family Home” and that she and the parties’ three minor children be granted use and possession of the home for three years; that the chancellor determine "Family Use Personal Property” and "Marital Property,” and that he grant her a "Monetary Award,” all in accordance with the statute.

Appellant filed a Motion Raising Preliminary Objection to the supplemental bill, alleging the inapplicability of Subtitle 6A and the consequent lack of subject matter jurisdiction. Appellant’s motion came on for hearing on June 22, 1979, and the motion was denied; the chancellor ruled that the issues raised in the supplemental bill would be decided at trial.

Appellant filed his Answer to the Supplemental Bill of Complaint and a hearing was held in the matter on March 7, 1980. Thereafter, by Order of March 19, 1980,. the chancellor granted appellee a divorce a vinculo matrimonii on the ground of constructive desertion, awarded her and the children the use and possession of the family home and furnishings for three years and ordered that appellant pay all monthly mortgage installments and taxes on the home during that time. The chancellor then referred the case to the Domestic Relations Master for further proceedings to determine a suitable monetary award, to establish ownership interests in marital property and to supervise the sale of that property and the division of proceeds therefrom.

During its 1978 legislative session, the General Assembly of Maryland enacted legislation to alter the law governing the disposition of property in conjunction with grants of divorce or annulment. 1978 Laws of Maryland, Chapter 794. The legislation is codified in Subtitle 6A, "Property Disposition in Divorce and Annulment,” of Title 3 of the Courts and Judicial Proceedings Article of the Annotated Code of Maryland. Section 2 of Chapter 794 provides that the Act shall take effect January 1, 1979, and that it shall apply "only to cases filed after that date.”

Appellant contends the language of Section 2 clearly and unambiguously refers to "cases” filed after January 1, 1979; that a supplemental bill is not a "case”, and tkat consequently the Act does not apply here. We agree.

The well-known "cardinal rule” to be followed in applying a statute is to ascertain and effectuate the real legislative intent. In seeking to determine legislative intent, we first look to the language of the statute itself. If the words contained therein are plain and unambiguous, and if they express a definite and sensible meaning, then their meaning is conclusively presumed to be that intended by the Legislature. State v. Fabritz, 276 Md. 416, 421 (1975). Or, as the Court of Appeals stated in District Land Corporation v. Washington Suburban Sanitary Commission et al, 266 Md. 301 (1972), at 307:

"In determining the legislative intent, we exam- * ine the words used as the primary source for discovering that intent. Maryland Medical Service, Inc. v. Carver, 238 Md. 466, 478, 209 A.2d 582, 588 (1965).
If the words are clear and unambiguous, generally speaking, the search for the legislative intent ends. If, however, the words are not clear and unambiguous, then the well-established rules of statutory construction apply. Clerk of the Circuit Court for Calvert County v. Chesapeake Beach Park, Inc., 251 Md. 657, 663-64, 248 A.2d 479, 482-83 (1968).”

We think the words "cases filed after January 1, 1979,” contained in Section 2 of Chapter 794, supra, are quite plain, sensible and free from ambiguity. Appellee filed the original case prior to January 1, 1979. When she filed her supplemental bill in this same case after January 1, 1979, it became a part of the original case. The fact that the supplemental bill may set out a different "cause of action”, as appellee maintains, is immaterial. The statute refers not to "causes of action” but to "cases”, and we hardly think it needs citation to establish that the two are not synonymous: a cause of action is not necessarily a case, while a case must contain at least one, and often contains several, causes of action. And a supplemental bill is not a case. In our view the Legislature’s choice of language here constitutes a clear expression of its intention to limit the effect of the "Property Disposition in Divorce and Annulment” Act to actual cases filed after the Act’s effective date. The legislative history of the Act confirms us in this view. The proposition was subjected to exhaustive study prior to enactment. Public hearings were held; the bench and bar were given the opportunity to comment; the effective date of the Act was in fact postponed to allow counsel and other interested parties to become thoroughly conversant with the provisions of the legislation. Upon the whole, therefore, we think the language of the Act reflects the Legislature’s view that the Act must begin to run "afresh”, from some point in time. When the Legislature stated that "this Act shall take effect January 1, 1979, and shall apply only to cases fíled after that date,”it meant what it said.

Decree affirmed in part and reversed in part.

Case remanded for further proceedings consistent with the views stated in this opinion.

Appellee to pay the costs.

      . In the Circuit Court for Montgomery County, Equity No. 62842.

      . See Md. Ann. Code (1957, 1981 Repl. Vol.), Art. 16, § 24.

      . Those portions of this "Order” not contested are not addressed in this appeal.

      . We note that, notwithstanding this referral to the Domestic Relations Master for further proceedings, his Order is nevertheless final for purposes of appeals. See MD. CTS. & JUD. PROC. CODE ANN. (1980 Supp.), § 3-6A-07 (d).


author: Couch, J.,

text:
    IN RE: DOMINIC W.
    [No. 854,
    September Term, 1980.]

      Decided March 10, 1981.

    The cause was argued before Thompson, Lowe and Couch, JJ.

      Nancy L. Cook, Assigned Public Defender, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Eric E. Wright, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Couch, J.,

delivered the opinion of the Court.

On November 29, 1979, Montgomery County police took into custody the appellant, Dominic W., a juvenile, on a theft complaint lodged by the assistant principal of a public high school in the county. A petition was subsequently filed in the Maryland District Court alleging appellant to be a delinquent child. That court held an adjudicatory hearing and found the appellant to be a delinquent child. After a disposition hearing the appellant was placed on probation under the supervision of the Juvenile Services Administration.

On appeal, Dominic W. presents several questions, and requests that we reverse the judgment of the lower court. We must reverse that judgment because of our affirmative answer to appellant’s first question,

"Was a watch taken from appellant during a search by the assistant principal seized without probable cause, in violation of § 7-307 of the Maryland Code’s Education Article, and improperly admitted into evidence?”

What gave rise to the delinquency petition being filed against appellant may be briefly summarized with additional facts supplied as necessary in our discussion of the issue.

Two male students at the high school involved prepared to attend an assigned gym class. They shared a locker in the gym’s locker room to store their regular clothing; the locker was made secure by the use of a combination lock. On the day in question, after changing into their gym clothes, the students placed their regular clothing and personal possessions in the locker, locked the combination lock, and proceeded to the gym class. These students were two of some ninety students taking gym at that time. After completion of the gym class these two students returned to their locker and found the combination lock broken and unlocked. Upon opening the locker door they discovered that a watch belonging to one of them was missing, as well as two five-dollar bills. A report of this theft was made to the school’s assistant principal. One of the students reported that he had seen three individuals walking by the row of lockers and looking around. He gave their names to the assistant principal. The assistant principal testified he had been told by one of the student victims that appellant and two others were seen by the victims "hanging around the lockers” before gym class. After interviewing the other two boys named, who denied involvement, the assistant principal sought out the appellant, took him to an empty classroom, and told him he was suspected of being involved in a theft. The appellant was requested to empty his pockets, which he did, revealing ten one-dollar bills and a pack of cigarettes. The assistant principal then felt appellant’s pockets and, upon reaching into one of them, found a watch. This watch was later identified as being the one that was missing from the locker. Appellant was turned over to the police, who took him to a police station. Appellant was given his "Miranda” rights, and gave police a statement incriminating another student. Although he admitted being at the locker when it was broken into, he said that the watch was given to him. The next day, this second student gave police a statement wherein he said that appellant forced open the locker and took the watch and money. During the adjudicatory hearing appellant made timely objections to the admission of his statements and the watch, which the court overruled.

The appellant contends that the watch seized from his pants pocket should not have been admitted into evidence. Conceding that the assistant principal had authority under Md. Educ. Code Ann. § 7-307 to make certain searches, the appellant argues that such searches are authorized only if probable cause exists to believe that the suspect possesses contraband.

The State argues that the exclusionary rule developed for violations of the Fourth Amendment to the United States Constitution does not apply to this case, and that the appropriate probable cause was present to satisfy the Maryland statute.

In our view the exclusionary rule developed for Fourth Amendment violations does apply. This conclusion is reached because § 7-307 of the Md. Education Article makes patent that the search was governmental action in the context of the Fourth Amendment. That the assistant principal here was an agent of the State would appear to be beyond doubt. Furthermore, the legislature itself required probable cause to exist before the search could be made. While Maryland has no exclusionary rule by statute, case law, or rule of evidence for search and seizure purposes, it does have the exclusionary rule for Fourth Amendment violations imposed on it under the constitutional compulsion of Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684 (1961). See Belton v. State, 228 Md. 17, 178 A.2d 409 (1962). By our interpretation of § 7-307 and the application of the Fourth Amendment exclusionary rule, the items seized here and the subsequent statements should not have been admitted. Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407 (1963); Everhart v. State, 274 Md. 459, 337 A.2d 100 (1975).

In reaching this conclusion, we considered whether there was probable cause for the assistant principal to make the search. In doing so we made an independent examination of the evidence in the record. Ponds v. State, 25 Md. App. 162, 335 A.2d 162 (1975). Prior to the search of appellant the information had by the assistant principal consisted of (1) a student’s locker had been broken into and two five-dollar bills and a watch were stolen; (2) the appellant and two other boys were observed "hanging around” the lockers; (3) these three were apparently among ninety students taking the gym class; (4) in talking to the other boys who had been observed with appellant the assistant principal was advised by one of them that he was not involved and was not aware of anyone else who was involved; (5) that upon confronting appellant he asked him to empty his pockets, which was done, revealing a new pack of cigarettes and ten one-dollar bills. At this point of the search of appellant’s pockets, the watch was discovered. In overruling appellant’s objection to the watch’s admission, the trial judge stated:

"... I’m going to rule that he had probable cause, based on the evidence that’s been ... he had the complaint made to him and the names of three people were ... or at least the identity of three people were made known. I think that’s sufficient.. ..”

We hold that the trial judge was wrong. In Edwards v. State, 196 Md. 233, 237, 76 A.2d 132, 134 (1950), the Court of Appeals stated:

"The Supreme Court of the United States in the case of Brinegar v. U. S., 338 U.S. 160, at pages 175-176, 69 S. Ct. 1302, at pages 1310, 1311, 93 L.Ed. 1879, said that the substance of all the definitions of probable cause is a reasonable ground for belief of guilt, and that probable cause exists where the facts and circumstances within the officers’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.”

In this case, the assistant principal clearly had insufficient information to lead a reasonably cautious person to believe that appellant committed the theft.

The unreasonable nature of the subject search is shown by the failure of the information provided to the assistant principal to place the appellant in a more suspicious light than any other gym student on the day of the incident. The information found in the record does nothing more than create a mere suspicion and thus does not constitute probable cause. Johnson v. State, 8 Md. App. 187, 191, 259 A.2d 97 (1969). Therefore, the search and seizure were impermissible, and the watch inadmissible.

Appellant’s additional questions concern the exclusion of his statements, and the statements of a nontestifying codefendant, made in response to the search. The admission into evidence of the appellant’s statements was premised on the search’s validity. Our finding that the search was invalid eliminates this premise for admission of the statements. Likewise, absent valid admission of the appellant’s statements, the trial court lacked the proper predicate for admitting the statements of the nontestifying codefendant. Thus there was nothing with which the codefendant’s statement could "interlock” and be admitted under the exception to Parker v. Randolph, 442 U.S. 62, 99 S. Ct. 2132 (1979), to the rule against admissions set forth in Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620 (1968).

Order reversed.

Costs are not reallocated as part of the judgment of this court pursuant to Maryland Rule 1082 f.

      . Md. Educ. Code Ann. § 7-307, concerning searches of students and schools, states:
      "(a) Authority to search student. — (1) A principal, assistant principal, or school security guard of a public school may make a reasonable search of a student on the school premises if he has probable cause to believe that the student has in his possession an item, the possession of which is a criminal offense under the laws of this State. (2) The search shall be made in the presence of a third party.

        (b) Authority to search school. — (1) A principal, assistant principal, or school security guard of a public school may make a search of the physical plant of the school and its appurtenances including the lockers of students. (2) The right of the school official to search the locker shall be announced or published previously in the school.
      (c) Rules and regulations. — The Department shall adopt rules and regulations relating to the searches permitted under this section.”

      . No issue was raised below or on appeal concerning whether the seized watch could possibly constitute "an item”, the possession of which is a criminal offense.


author: Weant, J.,

text:
    WILMER MECHLIN v. COMPTROLLER OF THE TREASURY, RETAIL SALES TAX DIVISION
    [No. 860,
    September Term, 1980.]

      Decided March 10, 1981.

    The cause was argued before Gilbert, C. J., and Thompson and Weant, JJ.

      William H. Clarke, with whom were Galiher, Clarke, Martell & Donnelly on the brief, for appellant.

      Paul S. Sugar, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellee.
   Weant, J.,

delivered the opinion of the Court.

As to the astuteness of taxpayers in ordering their affairs so as to minimize taxes, we have said that "the very meaning of a line in the law is that you intentionally may go as close to it as you can if you do not pass it.” Superior Oil Co. v. Mississippi, 280 U.S. 390, 395-396. This is so because "nobody owes any public duty to pay more than the law demands: taxes are enforced exactions, not voluntary contributions.” [Quoting Commissioner v. Newman, 159 F.2d 848, 851 (2d Cir. 1947) (Hand, C. J.; dissenting)].

Atlantic Coast Line R.R. Co. v. Phillips, 332 U.S. 168, 172-73, 67 S. Ct. 1584, 1587, 91 L. Ed. 1977, 1981 (1947) (Frankfurter, J.). In the instant appeal from the Circuit Court for Montgomery County (Mitchell, J.), we are asked to determine whether in attempting to walk as near to the line of the law as possible, the taxpayer has passed it.

As noted by Thomas J. Mace, Hearing Officer for the Office of the Comptroller of the Treasury of the State of Maryland, the relevant facts in the proceeding before him, and now before us on appeal, are neither complicated nor a matter of dispute. In 1970, the appellant Wilmer Mechlin, a resident of Montgomery County, Maryland, and an attorney admitted to practice law in the District of Columbia, purchased the Ayesha, a 1970 Columbia 43 sailboat from a Florida boat dealer. Mr. Mechlin took delivery of this sailboat in Norfolk, Virginia on 6 June 1970. Two days later the Ayesha first entered Maryland waters, where she remained for the most part until she was sold in May of 1973. Having been advised by a Maryland boat dealer that a vessel so documented was not subject to Maryland sales tax due to a quirk in the Maryland tax law, Mr. Mechlin had his sailboat federally documented in the District of Columbia office of the United States Coast Guard. Hence no tax based upon the purchase or use of the Ayesha was or has been paid to the State of Maryland or to any other federal or state jurisdiction.

Having received, and responded to, several missives from the appellee the Comptroller of the Treasury, Retail Sales Tax Division concerning the payment of tax as a consequence of having purchased the Ayesha, Mr. Mechlin ultimately was notified by letter dated 19 April 1974 that in accordance with sections 344-45 of article 81 of the Maryland Annotated Code, the following assessment had been recorded against his account:

Sales and/or Use Taxes $ 2,144.68

Interest 246.64

Penalty 214.47

Total $ 2,605.69

For the period: June 6, 1970 thru June 6, 1970.[2]

Despite Mr. Mechlin’s leveling various challenges at the foregoing assessment, the Comptroller of the Treasury, the Maryland Tax Court, and the Circuit Court for Montgomery County have seen fit to uphold said assessment. Similarly, in concluding that Judge Mitchell did not err in affirming the decision of the Maryland Tax Court, we find that we must reject each of Mr. Mechlin’s appellate arguments, namely:

I. [His] boat was exempt from a Maryland use tax by § 326 (g-1) of Article 81 of the Maryland Code.
II. Original assessment of April 19, 1974, was null and void.
III. Correction of original assessment was barred by Statute of Limitations.
IV. Statute of Limitations was not tolled by gross negligence provision of Article 81, § 393 (a) of the Maryland Code.

I.

In claiming an exemption from the payment of the assessed tax, the appellant relies upon Maryland Annotated Code article 81 section 326 (g-1), which provides in pertinent part:

The tax hereby levied shall not apply to the following sales:
(g-1) New or used vessels. — Sales of new or used vessels upon which the excise tax is levied and imposed by Section 4E of Article 14B of this Code is collected by the Department of Chesapeake Bay Affairs or which are to be titled or numbered in another state. [Emphasis added].

More specifically, he relies upon that portion of section 326 (g-1), which we have italicized and which, interestingly, was stricken by the Legislature on 23 April 1971, by chapter 107, Acts 1971. Accordingly, our task is to construe the aforementioned provision.

In Atlantic, Gulf & Pacific Co. v. Department of Assessment & Taxation, 252 Md. 173, 177, 249 A.2d 180, 182 (1969), Judge Barnes, writing for the Court of Appeals, stated that

"[t]he cardinal rule of construction of a statute is to discover and to carry out the real legislative intention.... The legislative intent is to be sought in the first instance in the words used in the statute and if there is no ambiguity or obscurity in the language used in the statute, there is usually no need to look elsewhere to ascertain the intent of the legislature.”

(Quoting Maryland Medical Service, Inc. v. Carver, 238 Md. 466, 477-78, 209 A.2d 582, 588 (1965) (citations omitted)). On the other hand, where, as here, the language of the statute is not clear and unambiguous, our looking elsewhere is guided by two well-established maxims of statutory construction. These particular maxims, set out in Atlantic, supra, at pages 182-83, 249 A.2d at 186, are

(1) that tax exemptions are to be narrowly construed, and (2) that where legislation is susceptible of two constructions, a long continued and unvarying construction applied by the administrative officials administering the statute in question is strongly persuasive and should not be disregarded by the courts except for weighty reasons.

That the language of article 81, section 326 (g-1) is unclear and ambiguous is so for two reasons. First, it appears that when a boat is federally documented it receives a number: The appellee postulates that this numbering does not constitute numbering as intended by section 326 (g-1). While we shall conclude herein that this is true, we nevertheless are mindful that on its face section 326 (g-l)’s term "numbered” does not make clear such a distinction. Second, the phrase "in another state” is susceptible to more than one interpretation, in that there is some question whether or not the word "in” can be interpreted to mean "by” as well.

In ruling that the Ayesha was not tax exempt, the Circuit Court for Montgomery County relied upon the Maryland Tax Court’s opinion in Price v. Comptroller, Sales Tax No. 38, June 24,1975, 2 Md. State Tax Rep. (CCH) ¶ 200-753, for the proposition that " 'the purpose of the exemption in Section 326 (g-1) is to avoid duplication of tax’ . . ..” Of all the reasons propounded, we find this to be the most cogent for denying the Ayesha tax exempt status. Not only is such an interpretation of section 326 (g-l)’s exemption language a logical one, it also is one which, as the Hearing Officer for the Comptroller’s office noted, is supported by the administrative practice of the Retail Sales Tax Division, i.e., to tax federally documented boats. See, e.g., Comptroller of the Treasury, Retail Sales Tax Division, Bulletins 64-4 and 69-5.

Accordingly, the trial court’s resolution on this issue was not error.

II., III. & IV.

Mr. Mechlin’s remaining three arguments hinge upon his allegation that the challenged assessment of his account is barred by limitations. In this regard we reiterate a portion of the trial court’s opinion wherein this issue is addressed.

[Mr. Mechlin’s] vessel first entered Maryland waters on June 8, 1970. The State sent its first Assessment Notice on April 19,1974. [Mr. Mechlin] communicated with the Comptroller and notified that office that the date of assessment was incorrect. On October 4, 1974, the State sent another notice dating it back to April 16,1974.-- [Mr. Mechlin] urgently persists that the Comptroller is barred by the four (4) year statute of limitation referred to [in Maryland Annotated Code article 81, section 393 (a)]. This claim must fail....
... [Mr. Mechlin] had full notice of the assessment within the time limit. The fact that an amended or corrected notice was sent in October, 1974, is of little import. It would be no different than filing an amended declaration in law, after limitations would apply as long as a new claim was not asserted. This proposition was recited by the Court of Special Appeals in Mack Trucks, Inc. v. Webber, 29 Md. App. 256 (1975) at page 262. Judge Moore, speaking for the Court said:
"If, however, no new cause is set out by the amendment then the doctrine of relation back applies and the question of limitations is determined with reference to the date of the original filing.” (Citations omitted).

Because we can find no error in the trial court’s reasoning, we adopt it as our own. Moreover, our adoption of such makes it unnecessary for us to address the issue of the appellant’s alleged gross negligence in failing to pay the use tax.

For the reasons stated above, we are constrained to say that Mr. Mechlin’s venture as near to the line of the law as possible has failed, he has in fact sailed across it. Hence, the judgment of the Circuit Court for Montgomery County is affirmed.

Judgment afGrmed.

Costs to be paid by the appellant.

      . Although §§ 344-45 have been amended several times since April of 1974, none of the legislated changes are of consequence here.

      . (Footnote added). The apparent discrepancy in the dates contained in this assessment notice is the basis for the contentions that are discussed at section II, III, and IV infra.

      . At each stage of the proceedings below, the decision maker asserted different grounds for its determination that Mr. Mechlin owed the assessed tax.
      The Comptroller, after examining the pertinent federal and state legislation, reasoned that the federal documentation process and any local numbering system must be differentiated; that the term "state” does not normally include the federal government; and that Maryland policy, as evidenced by the testimony of Bernard F. Moan, a tax consultant for the Retail Sales Tax Division of the Comptroller of the Treasury, and by various bulletins issued by the division employing Mr. Moan, consistently has been to tax federally documented vessels.
      On the other hand, the Maryland Tax Court never directly addressed the issue of the meaning of the language concerning the alleged exemption. Apparently, it accepted as self-evident the proposition that the exemption referred to in section 326 (g-1) was inapplicable here and therefore addressed only the issues pertaining to the validity and timeliness of the assessment.
      In addition to grounding its decision on the opinion of the Maryland Tax Court in Price v. Comptroller, Sales Tax No. 38, June 24, 1975, the circuit court followed the well-settled principle that "[t]he circuit court ... shall affirm the Tax Court’s order if it is not erroneous as a matter of law and if it is supported by substantial evidence appearing in the record.” Maryland Annotated Code art. 81, § 229 (o).

      . The latter was revised on 1 February 1973.

      . (Footnote added). That this corrected assessment notice was erroneously backdated is not of consequence. What is significant is that the notice properly stated the period of assessment as being from 1 June 1970 through 30 June 1970.


author: Lowe, J.,

text:
    IN RE: BOBBY C.
    [No. 890,
    September Term, 1980.]

      Decided March 11, 1981.

    The cause was submitted on briefs to Moore, Lowe and Melvin, JJ.
    Submitted by Michael R. Malloy, Assistant Public Defender, and Alan H. Murrell, Public Defender, for appellant.
    Submitted by Stephen B. Caplis, Assistant Attorney General, Stephen H. Sachs, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Richard Lawlor, Assistant State’s Attorney for Baltimore City, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

This appeal challenges the constitutionality of Md. Cts. & Jud. Proc. (1980 Repl. Vol.) Code Ann. § 3-817 (c), which permits a juvenile court to waive its exclusive jurisdiction over an alleged delinquent child upon a "preponderance of the evidence,” if it concludes that the child is not amenable to juvenile rehabilitation. The juvenile appellant, relying upon Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979), urges us to invalidate Courts Art. § 3-817 (c) and to hold that due process requires that the waiver criteria set out in section 3-817 (d) be established by "clear and convincing proof’ or preferably, "beyond a reasonable doubt” before a juvenile may be waived to the criminal court for trial.

As a result of his drawing a handgun on one person, shooting another in the stomach, and shooting at still another, appellant was charged with two attempted murders, assault, and use of a handgun and was alleged to be a juvenile delinquent. This sixteen-and-one-half year old boy had been previously on probation for one assault with his fists and for another assault in which the victim had been stabbed in the back.

Exclusive jurisdiction over a child alleged to be a delinquent is (with certain exceptions, see Courts Art. § 3-804 (d) ) vested in the juvenile court by Courts Art. § 3-804 (a). Courts Art. § 3-817 allows the juvenile court to waive its jurisdiction over the alleged delinquent, after an appropriate hearing, if the child is fifteen years or older or, if the child is not yet fifteen, where the child has committed a criminal act "which if committed by an adult, would be punishable by death or life imprisonment.” A juvenile waiver hearing is not a trial but a judicial inquiry concerning the advisability of waiving vel non a child from the juvenile system to that of the criminal court. Subsection (c) of § 3-817, that portion of § 3-817 which the appellant challenges as unconstitutional, prescribes the standard of proof the judge is to apply at the waiver hearing: "The court may not waive its jurisdiction unless it determines, from a preponderance of the evidence presented at the hearing, that the child is an unfit, subject for juvenile rehabilitative measures (emphasis supplied).”

As a guide for the court, the General Assembly has mandated that certain "criteria individually and in relation to each other [be considered] on the record.” Section 3-817 (d) specifies that the juvenile court consider:

"(1) Age of the child;
(2) Mental and physical condition of the child;
(3) The child’s amenability to treatment in any institution, facility, or program available to delinquents;
(4) The nature of the offense and the child’s alleged participation in it; and
(5) The public safety.”

Each factor is to be weighed in relation to whether the child is an unfit subject for juvenile rehabilitation. In Re Appeal No. 646, 35 Md. App. 94, 369 A.2d 150 (1977). Not all the factors need be given equal weight, nor do all the factors need be decided against the child in order for a waiver to be granted. In Re Trader, supra; In Re Johnson, 17 Md. App. 705, 304 A.2d 859 (1973).

If the juvenile court waives jurisdiction, the child may, as here, enter an immediate appeal which brings the matter to an abrupt halt in the trial court until the appeal is decided. Courts Art. § 3-817 (f). On the other hand, should the court refuse to grant a waiver, the matter goes forward in accordance with the Courts Article, Subtitle 8, Juvenile Causes.

Appellant asserts that Fourteenth Amendment due process demands that the minimal standard of proof in a juvenile waiver hearing be "clear and convincing.” Although the Supreme Court of the United States has paid much attention to the constitutional rights of juveniles in adjudicatory proceedings, see In Re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967) and In Re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970), and has recognized the critical importance of the juvenile waiver hearing, see Kent v. United States, 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966), it has not addressed the minimum standard of proof constitutionally required in a juvenile waiver hearing.

Appellant urges us to do what the Supreme Court has not done and set aside the legislative "preponderance of the evidence” standard. The basis of his request is his suggestion that Addington v. Texas, supra, mandates that the standard of proof even in juvenile hearings be "clear and convincing evidence.”

Addington involved a constitutional attack on the "clear and convincing” standard of proof in a civil commitment hearing. A jury was to determine whether Addington was mentally ill and, consequently, subject to confinement in a state mental institution for some indefinite period of time. The trial judge instructed the jury to use a "clear unequivocal and convincing evidence” standard in making its determination. Based upon the evidence, the jury found Addington to be mentally ill. He was to be institutionally confined. On appeal, Addington claimed that the proper standard of proof that should have been applied in his case was that of "beyond a reasonable doubt.” The Texas Supreme Court affirmed the trial court. It approved the "clear and convincing” standard and noted that even "preponderance of the evidence” would have been sufficient. The United States Supreme Court, on certiorari, sanctioned the use of the "clear and convincing” standard of proof. The Court said that such a standard met the minimal requirements of due process. The "preponderance” standard was, however, expressly rejected as insufficient to satisfy due process.

Addington was based on two primary considerations. Noting that evidentiary standards of proof "serve.... to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision,” 441 U.S. at 423, 99 S. Ct. at 1808, 60 L. Ed. 2d at 329, the Court immediately identified the consequences of civil commitment for an individual. First, in consideration of due process, civil commitment results in "a significant deprivation of liberty.” 441 U.S. at 425, 99 S. Ct. at 1809, 60 L. Ed. 2d at 331. Second, in consideration of the individual’s social situation, civil commitment results in stigmatizing the individual as a danger to himself and others. Id. Such adverse consequences require that the margin of factual error inherent in a determination of civil commitment be minimized. Therefore, the standard of proof should be higher than a "preponderance of the evidence.” Consequently, the standard of "clear and convincing” was adopted inasmuch as it "strikes a fair balance between the rights of the individual and the legitimate concerns of the State.” Id. at 431, 99 S. Ct. at 1812, 60 L. Ed. 2d at 334. The court did not endorse the "beyond the reasonable doubt” standard because "given the uncertainties of psychiatric diagnosis, it may impose a burden the State cannot meet and thereby erect an unreasonable barrier to needed medical treatment.” Id. at 432, 99 S. Ct. at 1812, 60 L. Ed. 2d at 335.

Addington is neither persuasively apposite nor authoritatively controlling in the matter before us. The significant difference between confinement in an institution as in Adding-ton and a waiver hearing in a juvenile cause is that after waiver the juvenile is not committed to an institution until and unless he has been charged, tried, and convicted in a criminal trial (although he may be confined while awaiting trial). Throughout the entire process he. is entitled to the full panoply of constitutional protections. The purpose of the waiver hearing is to assess whether the child is capable of rehabilitation within the juvenile system, not to determine whether the child is guilty or innocent of the crime alleged, nor even to determine whether he is to be confined.

Moreover, although it may be argued that the waiving of juvenile jurisdiction changes an alleged delinquent child to an alleged criminal, we do not find that any stigma results upon juvenile waiver. The stigma or labelling of a child as allegedly guilty of committing a criminal act does not attach automatically when a court determines that juvenile jurisdiction is waived and the child is to be tried as an adult, even though the waiving court presumes guilt for the purpose of the waiver hearing only. Rather, stigma results when the criminal court finds that the act was, in fact committed by the one charged, see generally, In Re Winship, supra, and the presumption of innocence is overcome.

Finally, appellant argues that waiver to the criminal court means exposure to enhanced punishment. The punishment, it is true, may be greater if meted out by a criminal court, but there is no ironclad rule that it shall or must be more severe than that imposed by the juvenile court. More significantly, waiver does not mean that a conviction inevitably will follow. The juvenile is cloaked with the same presumption of innocence that attends every other person appearing in the criminal courts. Waiver does not subject the child to a criminal record, although it does expose him thereto. Only a conviction consummates that stigma.

Nothing in the Addington, Kent and Winship trilogy dictates our holding that the evidentiary standard for juvenile waiver must be "clear and convincing” or "beyond a reasonable doubt.” We refuse to presage what course the Supreme Court will take in the future, and we see no reason to light the way by announcing a rule of law requiring "clear and convincing evidence” as the standard of proof before a juvenile may be waived to the criminal process.

It follows that we find that the "preponderance of the evidence” rule embodied in Courts Art. § 3-817 (c) meets the constitutional due process test. Upon review we find that the court below amply considered all criteria and that sufficient evidence existed to justify the waiver.

Judgment affirmed.

Costs to be paid by the appellant.

      . We do not address the argument that the "beyond a reasonable doubt” standard is constitutionally required in juvenile waiver hearings. We have emphatically stated our position with respect thereto in Hazell v. State, 12 Md. App. 144, 277 A.2d 639, cert. denied, 263 Md. 715 (1971), wherein it is said that "we hold that nothing in the constitution, State or federal, requires the State to satisfy the court beyond a reasonable doubt.” Id. at 154, 277 A.2d at 644. See Kemplen v. Maryland, 428 F.2d 169 (4th Cir. 1970). See also in Re Trader, 20 Md. App. 1, 315 A.2d 528, rev’d on other grounds, 272 Md. 364, 325 A.2d 398 (1974); In Re Waters, 13 Md. App. 95, 281 A.2d 560, cert. denied, 263 Md. 722 (1971). Appellant has not shown us any reason why we ought to retreat one scintilla from Hazell.