author: Mason, J.,

text:
    THE EQUITABLE TRUST COMPANY et al. v. STATE OF MARYLAND COMMISSION ON HUMAN RELATIONS
    [No. 95,
    September Term, 1978.]

      Decided April 10, 1979.

      The cause was argued before Mason, Wilner and Couch, JJ.

      Stanley Mazaroff, with whom was George W. Johnston on the brief, for appellants,

      Rlsselle Rosenthal Fleisher for appellee.
   Mason, J.,

delivered the opinion of the Court.

The issues in this case concern the Maryland Human Relations Commission’s (“Commission”) right to judicial enforcement of a subpoena duces tecum issued against the Equitable Trust Company (“Equitable”).

On 18 December 1974 the Commission issued a complaint in its own name against Equitable charging:

“The above named financial institution is subject to the jurisdiction of the Maryland Commission on Human Relations acting in accordance with Section 12(b) of Article 49B of the Annotated Code of Maryland.
“We have reason to believe the above named financial institution has engaged in unlawful application of financial standards, terms, and conditions regarding mortgage financing, personal credit, and all other forms of credit to individuals and' classes protected by Article 49B. Such unlawful practices have the effect of causing differential treatment in credit evaluation and the determination of credit worthiness of racial minorities and the protected sex class.
“An investigation of said practices shall be undertaken pursuant to Article 49B of the Annotated Code of Maryland. This investigation shall examine and look into the specific facts and circumstances concerning the holding of different standards of credit worthiness for men and for women, differential evaluation of income of males and females, and refusing services to females when changes are made in marital status. On the basis of investigation into these facts and circumstances the Maryland Commission on Human Relations will determine whether there is probable cause to believe that there is validity to the complaints.”

This complaint was referred to the Commission staff for investigation and ascertainment of the facts. Following several unsuccessful attempts to obtain information from Equitable during this investigation, the Commission on 23 October 1976 issued a subpoena duces tecum directing Equitable to deliver the documents requested. Upon Equitable’s refusal to comply with the subpoena, the Commission petitioned the Circuit Court of Baltimore City to direct Equitable to deliver the documents. After a hearing, the chancellor ordered Equitable to produce the documents specified in the subpoena and dismissed Equitable’s counterclaim for the production of certain of the information under the Maryland Public Information Act. Article 76A, Annotated Code. From this order Equitable appeals and presents the following arguments in challenging the validity and enforceability of the subpoena:

“I. Before the Commission validly may issue and enforce compliance with a subpoena duces tecum pursuant to a Commission complaint under § 12(b) of Article 49B of the Annotated Code of Maryland, appellants are entitled to be apprised of any reliable information indicating discriminatory practices received by the Commission and of any preliminary investigation of that information by the Commission.
“II. Since the Commission complaint in this action was not sworn as required by § 12 of Article 49B of the Annotated Code of Maryland, the Commission did not validly issue and may not enforce compliance with its subpoena duces tecum.
“III. The Commission’s complaint and the subpoena duces tecum issued pursuant thereto are deficient since the Commission has failed to state, as required by § 12 of Article 49B, the particulars, including the dates, of the discrimination charged.
“IV. Since the Commission complaint fails to charge discrimination within the ambit of Article 49B, the subpoena duces tecum was not validly issued and may not be enforced.
“V. Since the Commission is seeking financial records protected from disclosure by Article 11, §§ 224-27 of the Annotated Code of Maryland the subpoena duces tecum may not be enforced.
“VI. Since the Commission is seeking data irrelevant to its complaint, the subpoena duces tecum should not be enforced.
“VII. Since the documents sought by the Commission are so voluminous as to be unduly burdensome to provide, the court should deny enforcement to the Commission’s subpoena duces tecum.
“VIII. The Maryland Public Information Act guarantees appellants the right to information concerning any reliable information received by or any results of a preliminary investigation conducted by the Commission.”

I, II and III.

In arguments I, II and III, which we will consolidate and consider together, Equitable’s attack on the validity and enforceability of the subpoena is premised solely on alleged defects in the Commission complaint. Equitable, in essence, argues that the subpoena should not be judicially enforced because the Commission complaint was not sworn and lacked the particulars required by Article 49B, section 9 (a). Equitable further contends the complaint failed to disclose the reliable information purportedly received, or any evidence that a preliminary hearing had been conducted as required by section 9 (b).

Instructive on the issue of particulars required in a complaint during the investigative stage of a proceeding, such as here, is Banach v. State of Maryland, Commission on Human Relations, 277 Md. 502 (1976). In that case several individuals filed complaints with the Commission under section 9 (a) alleging discrimination by the A. S. Abell Company. After refusal by the company to supply the requested data, the chairman of the Commission authorized a preliminary investigation under section 9 (b) and issued a subpoena duces tecum to aid in the investigation. In challenging the subpoena the A. S. Abell Company argued, among other things, that the Commission was not empowered to issue the subpoena because: (1) the individual complaints lacked the particulars required by section 9 (a) and (2) that before a preliminary investigation can be conducted under section 9 (b), the Commission must establish that the information received is reliable.

In disposing of the contention that the Commission was without authority to issue the subpoena because the individual complaints lacked the particulars required by section 9 (a), the Court observed:

“The argument that appellants were not provided the ‘particulars’ required by § 12(a) [9(a)] is, at least in part, attenuated by our holding that subpoenas may be issued during the investigative stage preceding the filing of a formal complaint. In essence, appellants contend that since the four individual complaints are defective due to the absence of the necessary particulars, the commission is not empowered to issue the subpoenas. This argument misconceives the role of the administrative complaint and the relationship between the investigative and adjudicatory functions of the commission.
“Notwithstanding the ‘particulars’ requirement, a complaint filed with the commission under § 12(a) [9(a)] merely triggers the investigative process. If, as we have seen, the commission then wishes on the strength of such a complaint to issue a complaint in its own name it must first conduct a preliminary investigation. In any event, an investigation is mandated by § 13(a) [10(a)] ‘after the filing of any complaint,’ and it is only after the results of that investigation are reduced to written findings that the statute requires notice to be given the respondent against whom the complaint has been made.” Id at 513.

The Court further observed that it is at the adjudicatory stage and not at the non-judicial investigative stage of the proceedings that the traditional safeguards of fairness, i.e., notice of charges and opportunity to be heard, must be demonstrated.

“It is only when the conciliation process prescribed by § 13 [10] fails and the hearing stage contemplated by § 14 [11] is invoked that' the investigative yields to the adjudicative function. See Atchison, Topeka and Santa Fe Railway Co. v. Lopez, 216 Kan. 108, 531 P. 2d 455, 462 (1975). Only at that juncture must the charges be capable of withstanding attack for lack of particularity.” Id. at 515.

In answering the argument that the information received by the Commission must be “reliable” before it can initiate a preliminary investigation, the Court said, “[t]he determination whether the information received from individuals is ‘reliable’ can only rest within the sound administrative discretion of the Commission.” Id. at 516.

Returning to the present case, both parties apparently rely on Banach for support. The Commission contends that Banach is fully dispositive of Equitable’s argument that the subpoena is invalid and unenforceable because of alleged defects in the complaint. Equitable, on the other hand, argues that Banach did not address the issue of a defective Commission complaint, but was concerned with the lack of particulars in complaints filed by several individuals. Further, according to Equitable, the Banach court implicitly held that a Commission complaint, in contrast to an individual complaint, should be particularized to reflect compliance with the statutory requirements of sections 9 (a) and 9 (b).

In the present case, the proceedings have barely reached the threshold of the investigative stage mandated by section 10 (a), and as the Banach court said, “[i]t is only when the conciliation process prescribed by section 13 [10] fails and the hearing stage contemplated by section 14 [11] is invoked that the investigative yields to the adjudicative function .... Only at that juncture must the charges be capable of withstanding attack for lack of particularity.” Id. at 515. (Emphasis supplied). Obviously, if particulars are not required until the adjudicatory stage of the proceedings, it necessarily follows that an unparticularized Commission complaint issued at the investigative stage of the proceedings would not preclude issuance of a valid, enforceable subpoena. Consonant with this view see Augusta Building and Loan Association v. The State Commission, 39 Md. App. 466 (1978), where this Court, in responding to a claim of alleged defects in the Commission complaints specifically held that “[a]ny alleged defects in the complaints in this case, which were filed after the initiation of the preliminary investigation, are irrelevant to the validity of the properly executed subpoena duces tecum.” Id. at 470. See also Soley v. State Commission on Human Relations, 277 Md. 521 (1976) where the Court of Appeals held that the subpoena power delegated to the Commission Is clearly available following the issuance of a Commission complaint. “At that point the staff becomes engaged in an investigation pursuant to the command of § 13 (a) [§ 10 (a)] that may lead directly to a finding of probable cause to believe that a discriminatory act has been committed, and may conceivably eventuate in the quasi-judicial hearing contemplated by § 14 [§ 11].” Id. at 524-25.

Although the factual and legal issues involved in Banach may have been different from those in this case, we think Banach makes clear that during the investigative stage of a proceeding, i.e., when the Commission is attempting to discover and procure evidence, as opposed to proving a pending charge or complaint, the lack of specificity or other non-jurisdictional defects in a complaint will not render invalid or unenforceable an otherwise properly issued subpoena. Therefore, the alleged defects in the instant complaint were insufficient to defeat the issuance of the subject subpoena.

IV.

The Commission complaint charged Equitable with engaging in “unlawful application .of financial standards, terms and conditions regarding mortgage financing, personal credit, and all other forms of credit to individuals and classes protected by Article 49B.” The subpoena issued pursuant to this complaint requested, among other things, documents, memoranda, and other writings regarding the policy followed by the bank in extending automobile loans, consumer loans, mortgage loans and Bankamericard transactions. Equitable opines that the alleged charges of discrimination are not within the ambit of the Commission's authority because the jurisdiction of the Commission with respect to discrimination in financing is expressly circumscribed by section 22 (a) of Article 49B which, in relevant part, provides:

“(a) It shall be unlawful for any bank, savings and loan institution, credit union, insurance company, or other person regularly engaged in the business of making mortgages or other loans for the purchase, construction, improvement, or repair or maintenance of dwellings to deny such a loan to a person applying therefor, or discriminate against him in the fixing of the down payment, interest rate, duration, or other terms or conditions of such a loan, because of the race, color, religion, creed, marital status, sex, national origin or physical or mental handicap of such person, or of any member, stockholder, director, officer, or employee of such person, or of the prospective occupants, lessees, or tenants of the dwelling or dwellings in relation to which the application for a loan is made.”

Even if we assume that the discrimination alleged in the Commission complaint is not within the contemplation of section 22 (a) and that the Commission cannot pursue its investigation under authority of this section, we do not agree With Equitable that the Commission’s authority to investigate discrimination in financing is strictly limited to transactions delineated in section 22 (a).

The Commission contends, and we agree, that its authority to investigate the instant charges derives from section 8 of Article 49B which in pertinent part reads:

“It is unlawful for any person, business, corporation, partnership, co-partnership or association or any other individual, agent, employee, group or firm which is licensed or regulated by the Department of Licensing and Regulations as set out under Article 41, Subtitle 15, 221A(a), ‘The Department of Licensing and Regulations,’ to refuse, withhold from, deny or discriminate against any person the accommodations, advantages, facilities, privileges, sales or services because of the race, sex, creed, color or national origin, marital status, or physical or mental handicap of any person.”

Included within the jurisdiction of the Department of Licensing and Regulation is the Bank Commissioner. Article 41, section 221A. Inasmuch as section 8 demonstrates a clear legislative intent to prohibit discrimination by regulatees of the Department of Licensing and Regulations, it follows that Equitable, a regulatee of the Bank Commissioner, is subject to the authority of the Commission by virtue of section 8. Consequently, the discrimination alleged in the Commission complaint is not outside the orbit of the Commission’s jurisdiction. Therefore, the Commission can validly conduct the subject investigation and issue a subpoena in aid thereof.

Equitable further argues that if section 8 is also construed as vesting authority in the Commission to investigate discrimination in financing, section 22 (a) becomes meaningless because, according to Equitable, the canons of construction require the specific language of section 22 (a) to control over the general language of section 8. In support of its position Equitable quotes the following passage from Maguire v. State, 192 Md. 615, 623 (1949):

“It is an old and familiar rule that ‘where there is, in the same statute, a particular enactment, and also a general one, which, in its most comprehensive sense, would include what is embraced in the former, the particular enactment must be operative, and the general enactment must be taken to affect only such cases within its general language as are not within the provisions of the particular enactment____’ This rule applies wherever an act contains general provisions and also special ones upon a subject which, standing alone, the general provisions would include----” (Citations omitted).

However, the Court of Appeals in Rafferty v. Comptroller, 228 Md. 153, 158 (1967) said:

“There is, of course, a rule of statutory construction to the effect that the general language of one part of a statute may be controlled by the more specific phraseology of another part, ..., but there is also an elementary rule of construction requiring that a statute shall so be interpreted as to give meaning to each of its provisions so as not to render any of them nugatory.” (Citations omitted).

Further, where two statutory provisions, such as we have here, are neither irreconcilable nor mutually repugnant they should be construed in harmony even though the statutes were passed at different times and contain no reference to each other. Department of Natural Resources v. France, 277 Md. 432, 461 (1976).

Moreover, in holding that the Commission’s authority to investigate the instant complaint of discrimination in financing derives from section 8, a general enactment, and not from section 22 (a), a particular enactment, we have, in effect, applied the statutory rule of construction expressed in Maguire and urged by Equitable. Stated another way, the general language of section 8 vests authority in the Commission to investigate cases of discrimination in financing that are not included within the specific provisions of section 22 (a).

V.

Equitable next attacks the subpoena by contending the Commission was seeking financial records protected from disclosure under sections 224-227 of Article 11 of the Maryland Code. Section 225 provides:

“A fiduciary institution may not disclose to any person, except to the customer or his duly authorized agent, any financial records relating to that customer of that fiduciary institution unless:
(a) The customer has authorized disclosure to the person; or
(b) The financial records are disclosed in response to a lawful subpoena, summons, warrant or court order which meets the requirements of § 226 (a).”

Section 226 (a) requires a subpoena to be “served upon the customer and upon the financial institution; however, the court for good cause may waive service of the subpoena... upon the customer.” Because we have already determined that the subpoena was lawful, and the statute permits waiver of service upon the customer by the court, the exception set forth in section 225 (b) permitting disclosure of the subpoenaed records applies. Furthermore, the chancellor found, and we agree, that the records sought by the Commission were not within the protected classes of documents enumerated in section 224 (a) (2).

VI.

Equitable next argues that the subpoena should not be enforced because the Commission is seeking data irrelevant tó its complaint. Section 11 of Article 49B empowers the Commission to issue subpoenas to compel the production of only those books, papers and records which are relevant or necessary for its proceedings. Equitable contends that the Commission complaint limits its investigation to allegations of sex discrimination. Therefore, the racial data sought by the subpoena is irrelevant to the complaint. The predicate for this argument is the third paragraph of the Commission complaint which reads:

“An investigation of said practices shall be undertaken pursuant to Article 49B of the Annotated Code of Maryland. This investigation shall examine and look into the specific facts and circumstances concerning the holding of different standards of credit worthiness for men and for women, differential evaluation of income of males and females, and refusing services to females when changes are made in marital status. On the basis of investigation into these facts and circumstances the Maryland Commission on Human Relations will determine whether there is probable cause to believe that there is validity to the complaints.”

Equitable apparently ignores the second paragraph of the Commission complaint which states:

“We have reason to believe the above named financial institution has engaged in unlawful application of financial standards, terms, and conditions regarding mortgage financing, personal credit, and all other forms of credit to individuals and classes protected by Article 49B. Such unlawful practices have the effect of causing differential treatment in credit evaluation and the determination of credit worthiness of racial minorities and the protected sex class. ” (Emphasis supplied).

Like the chancellor below, we are hard pressed to understand why the Commission, after stating in the second paragraph of the complaint that it had reason to believe Equitable was engaging in unlawful financing practices and that such practices resulted in a different treatment of “racial minorities and the protected sex class,” should be limited to investigating only sex discrimination. We think the requested data was relevant and necessary to the proceedings. Additionally, the case of EEOC v. United States Fidelity and Guaranty Co., 420 F. Supp. 244 (D. Md. 1976) relied on by Equitable is inapposite. In that case the court, in answering a question raised concerning the scope of the subpoena, said: “The Commission is entitled only to those records identified by sex and not by race. The underlying charge alleges exclusively sex discrimination, and Ms. Braden is Caucasian. Therefore, information identified by race is not relevant to the instant investigation and cannot be obtained.” (Emphasis supplied) Id. at 247.

VII.

The final argument advanced by Equitable in challenging the subpoena is that the documents sought by the Commission are so voluminous that compliance would be unduly burdensome. The subpoena sought documents with respect to fifteen categories of information relating to Equitable’s lending practices and policies. According to Equitable, “in order to develop the information sought by the Commission, Equitable would be forced to collate data from over 63,000 accounts, which, conservatively estimated, would consume 9,600 work hours. The cost of such an undertaking would be staggering. Equitable, were it to attempt to supply the documents, memoranda and other writings sought by the subpoena duces tecum, would have to expend, again conservatively estimated, $96,000.00.”

In determining whether the information subpoenaed by the Commission was relevant and within its investigatory powers, we are guided by the principles established in United States v. Morton Salt, 338 U. S. 632, 652 (1950). There the Supreme Court declared:

“Of course a governmental investigation into corporate matters may be of such a sweeping nature and so unrelated to the matter properly under inquiry as to exceed the investigatory power... But it is sufficient if the inquiry is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant.’’ (Citation omitted) (Emphasis supplied).

Accord, Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186, 208-09 (1945).

In Banach, supra, the Court of Appeals adopted the three-fold test articulated in the Oklahoma Press Pub. Co. v. Walling case for determining the validity of a subpoena issued by an administrative agency: “[w]hether the inquiry is authorized by statute, the information sought is relevant to the inquiry, and the demand is not too indefinite or overbroad.” Id. at 506.

Applying the above principles to the present case, the requested documents clearly meet the test articulated by the Supreme Court and the Court of Appeals. The statutory authority for the inquiry is section 8, Article 49B, which makes it unlawful for any entity, such as Equitable, licensed or regulated by the Department of Licensing and Regulations “to refuse, withhold from, deny or discriminate against any person the accommodations, advantages, facilities, privileges, sales or services because of race, sex, creed, color, national origin, marital status, or physical or mental handicap of any person.” Further, section 11 authorizes the Commission to issue subpoenas for the production of records and documents relevant, or necessary for proceedings under section 8.

As to the relevancy of the information requested, the Commission complaint charges Equitable with discrimination “in mortgage financing, personal credit, and all other forms of credit to individuals and classes protected by Article 49B.” Plainly, the documents sought are relevant to the investigation of these charges. Moreover, we do not think the information and materials demanded are too indefinite or overbroad. The subpoena revealed the subject matter of the inquiry, specifically described the requested material, and called for documents and records covering a limited period of time (12 months).

Equitable contends that even if the materials sought are relevant the subpoena is unreasonable because the cost of compliance would be excessive and unduly burdensome. In support of this contention Equitable cites Oklahoma Press Publishing Co. v. Walling, supra, wherein the Court, after observing that Fourth Amendment principles might apply to administrative subpoenas of corporate records stated:

“[T]he Fourth [Amendment], if applicable, at most guards against abuse only by way of too much indefiniteness or breadth in things required to be ‘particularly described,’ if also the inquiry is one the demanding agency is authorized by law to make and the materials specified are relevant. The gist of the protection is in the requirement, expressed in terms, that the disclosure sought shall not be unreasonable.
“Beyond this the requirement of reasonableness, including particularity in ‘describing the place to be searched and the persons or things to be seized/ also literally applicable to warrants, comes down to specification of the documents adequate, but not excessive for the purposes of the relevant inquiry. Necessarily, as has been said, this cannot be reduced to a formula; for relevancy and adequacy or excess in the breadth of the subpoena are matters variable in relation to the nature, purposes and scope of the inquiry.” 327 U.S. at 208-09. (Emphasis supplied) (footnote omitted).

We do not think the subpoenaed documents were excessive for the purpose and scope of the inquiry. In Brown v. United States, 276 U. S. 134 (1928) a subpoena was enforced which called for documents covering a period of two and one-half years, with reference to eighteen different items. The court said: “The subpoena... specifies a reasonable period of time and, with reasonable particularity, the subjects to which the documents called for relate.” See also Wheeler v. United States, 226 U. S. 478 (1913). In McGarry v. Security and Exchange Commission, 147 F. 2d 389, 392 (10th Cir. 1945) the court said:

“The test of the validity of the subpoena is not the extent of the books and records called for, but whether those called for are pertinent and relevant to the inquiry. The process is lawful if it confines its requirements within the limits which reason imposes in the circumstances of the particular case.” (Footnote omitted).

Numerous decisions have also upheld the validity of subpoenas requiring the production of vast numbers of documents. See Federal Trade Commission v. Crafts, 355 U. S. 9 (1957); Civil Aeronautics Board v. Hermann, 353 U. S. 322 (1957); Cudmore v. Bowles, 145 F. 2d 697 (D.C. Cir. 1944), cert. denied, 324 U. S. 841 (1945).

As to the cost of compliance, the contention of Equitable is similar to that made in the case of EEOC v. United States Fidelity and Guaranty Co., 414 F. Supp. 227 (D. Md. 1976). There the court held that even if compliance would be costly and time consuming, such a burden standing alone was an insufficient basis for refusal to enforce the subpoena. In addition, we find nothing in the language of section 11 that limits the enforcement of a subpoena on the basis of cost, or some other^ burden compliance would impose. The court in EEOC v. United States Fidelity and Guaranty Co., supra, quoting from H. Kessler & Co. v. EEOC, 53 F.R.D. 330 (N.D. Ga. 1971), aff’d, 468 F. 2d 25 (5th Cir. 1972), rev’d on other grounds on rehearing en banc, 5 Cir. 472 F. 2d 1147, cert. denied, 412 U. S. 939, 93 S. Ct. 2774, 37 L.Ed.2d 398 (1973), stated:

“If the information or records sought is relevant or material to the charge under investigation and the EEOC proceeds as authorized by the statute, then any inconvenience or difficulty (which is actually inherent in any compulsory process proceeding) must be considered as a ‘part of the social burden of living under government.’ (53 F.R.D. at 336).”

The chancellor below, in concluding that compliance with the subpoena was not too expensive or burdensome, aptly stated:

“[T]he issue involved here is not so much the number of documents involved, but the relevancy of those documents. The defendants have placed too much emphasis on the number of documents involved. The fact that compliance will be expensive, inconvenient, or interfere with the conduct of the defendant’s business alone does not ordinarily afford a basis for non-enforcement of a subpoena.
“Only if the difficulty of compliance was plainly out of proportion to the end sought would this court find an undue burden which would compel this court to deny enforcement of a subpoena. Such a lopsided scale does not exist here.” (Citations omitted).

VIII.

Equitable, pursuant to the Maryland Public Information Act, Article 76A, Annotated Code, filed a counterclaim seeking access to the following information:

“1. the identity of any individual or individuals from whom the Commission received reliable information that appellants were engaged in discriminatory acts or practices as alleged in the Commission’s complaint;
2. a description of this reliable information;
3. the date on which the information was received by the Commission;
4. the identity of the member(s) of the Commission staff who conducted any preliminary investigation prior to the issuance of the Commission complaint;
5. a description of any preliminary investigation; and
6. the date on which the chairman or vice chairman of the Commission authorized any preliminary investigation on which the Commission complaint of December 18, 1974 is based.”

The threshold question is whether the Maryland Public Information Act requires the Commission to furnish, at this stage of the proceeding, the information sought by Equitable. The Commission, which has the burden of justifying non-disclosure, asserts that the records sought by Equitable are protected by exceptions contained in section 3 of Article 76A. With certain exceptions, section 3 (a) provides that “the custodian of any public records shall allow any person the right of inspection of such records or any portion thereof____”

The first exception on which the Commission relies for non-disclosure of the records is section 3 (a) (i) which exempts records from mandatory disclosure if “such inspection would be contrary to any state statute.” The Commission contends that section 13 of Article 49B “is the sort of statutory provision contemplated by the legislature when it enacted that exception.” Section 13 reads, in part, as follows:

“(a) During the investigation of any complaint alleging a violation of §§ 5, 7,14,15,16, or 22 of this article, and until said matters reach the stage of public hearings, the activities of all members of the Commission and employees thereof in connection with said investigation shall be conducted in confidence and without publicity, and the Commission shall hold confidential any information in relation thereto, including the identity of the complainant and the respondent, except that
“(b) Any member of the Commission or employee thereof, who violates the provisions of this section shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not more than $1,000.00 or imprisoned not more than one year or both.”

The fundamental flaw with the Commission’s argument is that the investigation in this case is bottomed on alleged violations of section 8 which is not designated in section 13 as one of the sections requiring that the “investigation shall be conducted in confidence and without publicity.” Thus, the records sought by Equitable cannot be denied on the basis that such disclosure would be “contrary to any state statute.”

The second exception on which the Commission relies for denying the requested information is section 3 (b) (i) which provides:

“(b) The custodian may deny the right of inspection of the following records or appropriate portions thereof, unless otherwise provided by law, if disclosure to the applicant would be contrary to the public interest:
(i) Records of investigations conducted by, or of intelligence information or security procedures of, any sheriff, county attorney, city attorney, State’s attorney, the Attorney General, police department, or any investigatory files compiled for any other law-enforcement, judicial, correctional, or prosecution purposes, but the right of a person in interest to inspect the records may be denied only to the extent that the production of them would (A) interfere With valid and proper law-enforcement proceedings, (B) deprive another person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source, (E) disclose investigative techniques and procedures, (F) prejudice any investigation, or (G) endanger the life or physical safety of any person; ”

The Commission argues that its “records in the case at bar also are protected by subsection 3 (b) (i) of Article 76A. This should be clear from a reading of §§ 13 [10] and 15 [12] of Article 49B, which set out the functions, duties and powers of the Maryland Commission on Human Relations as a law enforcement agency, with specific emphasis on investigation.”

This sweeping assertion falters because the Commission is not a named “law enforcement agency” within the meaning of section 3 (b) (i) whose records are presumed to be compiled for law enforcement or prosecution purposes.

In Superintendent v. Henschen, 279 Md. 468 (1977), the Court of Appeals in construing section 3 (b) (i) observed:

“Section 3 (b) (i) is in the disjunctive, excepting records of investigation by the enumerated types'of law enforcement agencies or investigatory files compiled for any other law enforcement or prosecution purposes. The statutory provision exempts from the mandatory disclosure requirement two categories of documents: (1) investigatory records of certain named law enforcement agencies; (2) investigatory records of other governmental agencies which were compiled for law enforcement or prosecuting purposes. It is only with respect to the second category that there is an express requirement that the records be compiled for law enforcement or prosecution purposes. The statutory language, and particularly the use of the word other before the phrase ‘law-enforcement or prosecution purposes,’ suggests that the Legislature believed that investigatory records of one of the enumerated law enforcement agencies were presumptively for law enforcement or prosecution purposes, but that investigatory records compiled by other agencies might or might not be for such purposes. (Emphasis in original). Id. at 475.

Although the Commission describes itself as a “law enforcement agency, with specific emphasis on investigation” it is not one of the enumerated agencies listed in section 3 (b) (i). Accord, Prince George’s County v. Commission, 40 Md. App. 473 (1978). Consequently, in order for a 3 (b) (i) exception to apply to the Commission’s records, it must be expressly shown that the data sought by Equitable is part of investigatory files compiled by the Commission for law enforcement or prosecution purposes.

Although Henschen, supra was not concerned with and did not answer the question of when records of an agency other than one named in section 3 (b) (i) are considered as compiled for “law enforcement or prosecution purposes,” there is a spate of federal cases which hold, as a general proposition, that where files are prepared in connection with related government litigation and adjudicative proceedings currently under way or contemplated, they are compiled for law enforcement purposes within the meaning of 5 U.S.C., section 552 (b) (7) of the Federal Freedom of Information Act (FOIA) which closely parallels Article 76A, section 3 (b) (i). Exemption 7 (A) provides that disclosure is not required of “matters that are... investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would... interfere with enforcement proceedings.”

For example, in Wellman Industries, Inc. v. NLRB, 490 F. 2d 427 (4th Cir. 1974), pursuant to the FOIA, the employer sought affidavits obtained by an investigator during an election investigation. In denying the relief sought the Court held the affidavits exempt from disclosure under section 552 (b) (7). In disposing of the employer’s contention that the investigatory files exception did not apply, the Court said:

“[T]hough procedures vary, if aimed at enforcement of the NLRA we think they are ‘for law enforcement purposes.’
“The legislative history of exemption 7 clearly supports such an interpretation. The House Report states:
‘This exemption covers investigatory files related to enforcement of all hinds of laws, labor and securities laws as well as criminal laws. This would include files prepared in connection with related Government litigation and adjudicative proceedings.’ ” (Emphasis in original). Id. at 430.

Of like import see Moore-McCormack Lines, Inc. v. I.T.O. Corp. of Balto., 508 F. 2d 945 (4th Cir. 1974); Pillar v. S. S. Hess Petrol, 55 F.R.D. 159 (1972); Benson v. United States, 309 F. Supp. 1144 (D. Neb. 1970); Cooney v. Sun Shipbuilding and Drydock Co., 288 F. Supp. 708 (E.D. Pa. 1968).

Following the reasoning of Wellman and the other cited federal authorities, we conclude that the information sought by Equitable was compiled by the Commission for purposes of enforcing the anti-discrimination laws under section 8 of Article 49B, and that the records in question are part of investigatory files compiled for law enforcement purposes within the meaning of section 3 (b) (i). Having determined that the requested information comes within the investigatory files exception, we must now determine whether this information should be accorded immunity from disclosure. Resolution of this question depends on whether disclosure would produce one of the seven harms enumerated in section 3 (b) (i).

Equitable urges us “to grant their counterclaim and order disclosure of the information sought, or, in the alternative, to direct the court below to review the materials sought in camera and to exempt from disclosure only those materials, if any, which will actually interfere with the Commission’s investigation.” In support of this argument Equitable relies heavily on Charlotte-Mecklenburg Hospital Authority v. Perry, 571 F. 2d 195 (4th Cir. 1978). There, the hospital sought production of sworn statements, by EEOC investigators in connection with charges of employment discrimination against the hospital. EEOC objected to disclosure on the basis that its investigatory records were perse non-disclosable, and because disclosure would “interfere with enforcement proceedings.” The Court, after reviewing the legislative history of the 1974 amendments to exemption 7 of the FOIA, concluded:

“[I]n order that the courts in applying such exemption might be provided with an adequate factual basis for determining whether disclosure would ‘interfere with enforcement proceedings,’..., Congress by the same Amendments gave the courts the right to make in camera inspections of all requested documents prior to ruling on disclosure under exemption 7.
“It is manifest from this legislative history of the 1974 Amendments that Congress intended to proscribe the use of a mechanical test such as that enunciated in Title Guarantee in favor of ‘a case-by-case’ factual inquiry in determining whether to require disclosure of investigatory records.” Id. at 202.

In affirming the decision of the district court, the court of appeals said:

“In our opinion, the district court conformed in its decision to the procedure established by the 1974 Amendments. It examined in camera the affidavits obtained by the EEOC from the charging parties. Based on that in camera inspection, it concluded that the statements procured from all present employees of the Hospital should not be disclosed because such disclosure might interfere with the EEOC investigation but that the disclosure of the statements procured from former employees would not interfere or disclose confidential sources. It accordingly denied the disclosure of the statements of present employees and ordered the disclosure of those of former employees. In our opinion the court did not abuse its discretion in the selection of the records to be disclosed.” Id. at 202.

In further- support of its position urging us to order disclosure of the information sought, or remand the case for an in camera review by the lower court with-directions to exempt from disclosure only the records that would interfere with the Commission’s investigation, Equitable cites the case of Robbins Tire and Rubber Co. v. NLRB, 563 F. 2d 724 (5th Cir. 1977). There, the National Labor Relations Board (NLRB) appealed an order of the district court directing it to disclose all written statements of prospective witnesses it intended to call in an unfair labor practice complaint hearing. The court of appeals, in affirming, held that the NLRB had failed to sustain the burden of proving that disclosure of the statements would interfere with the Board’s enforcement proceedings so as to exempt such statements from disclosure under exemption 7(A) of the FOIA.

The Supreme Court granted certiorari in Robbins, supra, NLRB v. Robbins Tire and Rubber Co., 437 U. S. 214, 98 S. Ct. 2311 (1978), to resolve the conflict among circuits on the question of whether the FOIA required the NLRB to make such a disclosure. After an extensive review and analysis of the legislative history of the FOIA and the 1974 amendments to exemption 7, the Supreme Court, in reversing the 5th Circuit, concluded that prehearing disclosure of prospective witnesses’ statements would interfere with NLRB enforcement proceedings. It further held that such statements are exempt from FOIA disclosure at least until completion of the Board’s hearing.

In reaching its decision that premature disclosure of the witnesses’ statements would interfere with NLRB enforcement proceedings, the Supreme Court recognized that the courts had uniformly protected such statements from mandatory disclosure prior to an unfair labor practice proceeding. It also recognized the peculiar character of labor litigation and the likelihood of intimidation and harassment of persons who had given statements.

In focusing on the present case, we cannot determine from the record before us whether the information sought by Equitable would interfere with the Commission’s enforcement proceedings, or produce one of the other enumerated harms in section 3 (b) (i). Therefore, this case shall be remanded to the lower Court for the limited purpose of determining whether section 3 (b) (i) requires the Commission to disclose the information sought by Equitable.

In making this determination the lower court should consider, among other things, the following:

1. That the records of the Commission are not protected from disclosure simply because they are part of investigatory files compiled for law enforcement or prosecution purposes.

2. That the Commission has the burden of proving that disclosure of the records sought would produce one of the harms specified in section 3 (b) (i).

3. That the in camera review provision of section 5 (b) (1) is discretionary and does not mandate that the documents be individually examined.

Judgement affirmed in part and reversed in part.

Case remanded for further proceedings in conformance with this opinion.

Costs to be paid by appellants.

      . The Honorable Robert L. Sullivan, Jr., heard this matter and prepared the Opinion and Order giving rise to the instant appeal. Because of Judge Sullivan’s demise, the actual Order of Court-appealed from was signed, pursuant to Maryland Rule 528, by the Honorable James A. Perrott of the Circuit Court of Baltimore City.

      . Section 9 (a) provides:
      “(a) Any person claiming to be aggrieved by an alleged discrimination prohibited by any section of this article may make, sign and file with the Human Relations Commission (hereinafter referred to as the ‘Commission’) a complaint in writing under oath. The complaint shall state the name and address of the person, firm, association, partnership, corporation, state agency, department or board alleged to have committed the act of discrimination together with the particulars thereof; and the complaint also shall contain such other information as may be required from time to time by the Commission. A complaint must be filed within six months from the date of the occurrence alleged to be a violation of this article. A complaint filed with the federal or with a local human relations commission within six months from the date of occurrence shall be deemed to have complied with the provisions of this section.”
      Chapter 684, Acts 1978, effective July 1, 1978, renumbered this section from 12 (a) to section 9 (a).

      . Section 9 (b) provides:
      “(b) Whenever the Commission has received reliable information from any individual or individuals that any person has been engaged or is engaged in any discriminatory practice within the scope of this article, and after a preliminary investigation by the Commission’s staff authorized by the chairman or vice-chairman it is satisfied that said information warrants the filing of a complaint, the Commission, on its own motion, and by action of not less than three commissioners, may issue a complaint in its name in the same manner as if the complaint had been filed by an individual.”
      Chapter 684, Acts 1978, effective July 1, 1978, renumbered this section from 12 (b) to section 9 (b) and substituted “three” for “four” near the end of the subsection.

      . Section 10 (a) of Article 49B provides:
      “(a) After the filing of any complaint the executive director shall consider the complaint and shall refer it to the Commission’s staff for prompt investigation and ascertainment of the facts. The results of the investigation shall be made as written findings. A copy of the findings shall be furnished to the complainant and to the person, firm, association, partnership or corporation....”
      Chapter 684, Acts 1978, effective July 1, 1978, renumbered former § 13 to be present § 10.

      . Chapter 684; Acts 1978, effective July 1,1978, renumbered this section from section 23 (a) to section 22 (a). -

      . Chapter 684, Acts 1978, effective July 1,1978, renumbered this section from 11C to section 8. Also, it added “physical or mental handicap” near the end of the section, and deleted certain surplus language.

      . Section 224 (a) (2) provides:
      “(2) The term ‘financial records’ means any original or any copy of:
      (i) A document granting signature authority over a deposit or share account;
      (ii) A statement, ledger card, or other record on any deposit or share account, which shows each transaction in or with respect to that account;
      (iii) A check, clear draft, or money order drawn on an institution or issued and payable by an institution; or
      (iv) Any item, other than an institutional or periodic charge, made pursuant to any agreement by an institution and a person which constitutes a debit or a credit to that person’s deposit or share account if the item is not included in subparagraph (a) (2) (iii) of this section.”

      . Excepted from the court’s order were items relating to mortage loan applications which covered a period of two years.

      . Article 76A, section 5 (b) (1), Chapter 1006, effective Duly 1, 1978, in relevant part provides:
      “JT]he court may examine the contents of the records in camera to determine whether the records or any part thereof may be withheld under any of the exemptions set forth in § 3, and the burden is on the defendant to sustain its action.

      . This section was substantially amended effective July 1, 1978, by Chapter 1006. Because the changes affect procedural rather than substantive rights, the amended law will apply. Yorkdale Corp. v. Powell, 237 Md. 121 (1963); Janda v. General Motors, 237 Md. 161, 168 (1964).


source: Caselaw Access Project

license: Public Domain

text:
    SAMUEL CLECKLEY v. STATE OF MARYLAND
    [No. 239,
    September Term, 1978.]

      Decided April 10, 1979.

    The cause was argued before Thompson, Mason and Liss, JJ.

      W. Michel Pierson, Assigned Public Defender, and William H. Murphy, Jr., for appellant.

      Paul T. Cuzmanes, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and David Katz, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Mason, J.,

delivered the opinion of the Court.

Sam Cleckley, appellant, was convicted by a jury in the Criminal Court of Baltimore on five counts of robbery. On appeal appellant contends: (1) That the trial court erred in admitting evidence seized from three pocketbooks during a warrantless search; (2) that he was denied a speedy trial; (3) that the evidence was insufficient to sustain his convictions.

On the afternoon of January 10, 1976, at 1:40 p.m., a man, accompanied by a woman, entered Mondie’s Beauty Shop in Baltimore City. After producing a pistol, the man robbed Sarah Mondie, owner of the shop, and four other females of money and jewelry valued at several thousand dollars.

Later the same day around 6:30 p.m., a red Buick with Maryland license tags, operated by appellant, was illegally parked on 8th Avenue and 126th Street in New York City. As Officer Vincent Guzzo and his partner, Officer Peter Cotroneo, approached the vehicle to give the operator a summons, the vehicle pulled off from the curb without lights, While the vehicle was stopped at a red light, Officer Guzzo approached the car from the driver’s side and asked appellant for his driver’s license and registration card. Whereupon appellant gave the officer his license and a rental receipt for the vehicle he was driving. Officer Cotroneo, who had approached the car from the passenger side, observed Raymond Cleckley, appellant’s nephew, in the back seat acting a little “fidgety”, i.e., moving his hands and shifting his feet. When Officer Cotroneo directed the beam of his flashlight to the floor in the rear of the car, he observed the end of an automatic revolver with the hammer cocked. At this point, he drew his service revolver and ordered Raymond Cleckley not to move. Officer Guzzo in the meantime called for assistance. On arrival of other officers, appellant was removed from the car and frisked. A .22 caliber pistol was recovered from his pocket. Appellant, Raymond Cleckley, and a male passenger who was in the front seat of the vehicle, were all arrested and transported to the police station.

Officer Guzzo took custody of appellant’s vehicle and while driving it to the station house noticed three ladies’ purses on the front seat. After parking the vehicle, he opened them and observed their contents. The officer then removed the handbags from the car and took them into the station house. After advising appellant of his Miranda rights he opened one of the purses which contained the identification of one Jacqueline Gardner. Appellant, when asked who she was, said she was his “old lady.”

After booking appellant on the handgun charge, the officer telephoned Jacqueline Gardner regarding her purse. She told him she had been a victim of a robbery earlier that day, and referred him to a Detective Cole of the Baltimore City Police Department who was handling the case. Soon thereafter the officer inventoried the contents of the three purses.

At trial, the .22 caliber revolver, which had been removed from appellant’s pocket, as well as the three purses and their contents were introduced into evidence against appellant. The victims of the robberies identified the purses and the items contained therein. The .22 caliber revolver was identified by Sarah Mondie as belonging to her. In addition, there was testimony that at approximately 1:45 p.m., on the day of the robbery, a red Buick with its motor running and with a man at the wheel, was observed parked near Mondie’s Beauty Shop. The State also introduced evidence showing appellant had leased the red Buick he was driving in New York from Avis Car Rental in Baltimore. Further, Sarah Mondie testified that Raymond Cleckley was the man who had robbed her beauty shop.

Appellant argues that the purses and the property contained therein should not have been admitted into evidence because they were obtained as the result of an illegal search. On the other hand, the State argues that these items were properly admitted into evidence because the actions of Officer Guzzo did not constitute a Fourth Amendment intrusion, but amounted to no more than a bonafide taking of an inventory.

I.

In determining whether the search of the pocketbooks was an impermissible intrusion of Fourth Amendment values or the bonafide taking of an inventory, we are guided by the case of South Dakota v. Opperman, 428 U. S. 364 (1976) where the Supreme Court stated:

“When vehicles are impounded, local police departments generally follow a routine practice of securing and inventorying the automobiles' contents. These procedures developed in response to three distinct needs: the protection of the owner’s property while it remains in police custody; the protection of the police against claims or disputes over lost or stolen property; and the protection of the police from potential danger.” (Emphasis supplied) (Citations omitted).

In Duncan and Smith v. State, 281 Md. 247, 259 (1977) the court of appeals held:

“[P]olice may, without regard to probable cause, and, thus, absent a warrant, constitutionally enter an automobile and unlocked compartments therein, and inventory and seize articles found, provided the vehicle had been otherwise legally taken into police custody and the inventorying was pursuant to a standard police procedure.” (Emphasis supplied)

The principle exposited by these cases is that inventory searches must be conducted in a non-investigative manner, as part of a standard, routine procedure and not conducted to discover evidence of crimes. See Boone v. State, 39 Md. App. 20, 30 (1978), affirmed with modification, State v. Boone, 284 Md. 1 (1978). See also Waine v. State, 37 Md. App. 22 (1977).

We think the following testimony of Officer Guzzo on cross-examination, at the suppression hearing, clearly shows the purpose for which the search was conducted:

“Q Can you explain to the Court why you did not place the purses that you found on the front seat of the car in the trunk and lock the trunk?
A Well, we were trying to find someone who knew to verify who the ownership of it was.
Q Why?
A It appeared to be a few rings of considerable cost.
Q These purses were closed when you first observed them on the front seat?
A Yes.
Q And after you found them you opened them?
A Yes.
Q You did this before they were inventoried?
A I opened them before I removed them from the car.
Q You had your inventory sheet out at the time you were opening the purses?
A No.
Q For what purpose did you open the purses before you removed them from the car?
A I opened the purses to see what their contents were.
Q Why did you do that?
A I was interested to know.
Q Why?
A Because my suspicions were aroused. The Defendant was found to be in possession of a gun and the purses on the front seat.
Q You were looking for incriminating evidence?
A No, sir.
Q What do you mean when you say your suspicions were aroused? Suspicions of what?
A Suspicions of what the women’s purses were doing there at that time on the front seat of the car.
Q What specifically were you suspicious about?
A I was suspicious whether the items belonged to the occupants of the car.
Q When you saw the purses the first time in the car?
A Yes.
Q You thought that it was the result of a robbery or stick up or purse snatching?
A Yes.
Q There is no typical inventory of a person’s property when you routinely impound a car?
A No.
Q It was the result of an exploratory act on your part which led you to the conclusion that the Defendant might be in possession of incriminating evidence.
MR. KATZ: Objection.
THE COURT: Overruled.
THE WITNESS: Yes, sir.”

Based on our independent examination of the evidence in the record, as we are required to do, Walker v. State, 12 Md. App. 684 (1971), we think it clear that the challenged search in this case was not conducted pursuant to a standard police procedure of securing and inventorying property under a community care-taking function. Since this search was “investigative” in nature and conducted for the purpose of discovering evidence of a crime, it exceeded the scope of a bonafide inventory search.

Inasmuch as the only theory upon which the challenged items could possibly have been admitted into evidence consistent with Fourth Amendment guarantees was that of a bonafide inventory search, the further contention of the State that the search was valid under the “plain view” doctrine is without merit.

In State v. Wilson, 279 Md. 189 (1977) while executing a valid search warrant for narcotics, one of the officers observed twenty to twenty-five electrical appliances, such as televisions and stereos, in one of the rooms. He “looked over” these items and “jotted down the serial numbers for all of them.” Id. at 192. The officer later checked the serial numbers through a national computer system which lists stolen equipment and found one of the items to be stolen.

The State sought to justify the warrantless seizure of the serial numbers on the grounds of the “plain view” exception to the warrant requirement. Quoting from Coolidge v. New Hampshire, 403 U. S. 443 (1971), the court summarized the “plain view” doctrine:

“This doctrine serves to supplement a previously justified intrusion, such as a search warrant for other property, and permits a warrantless seizure. The exception, on the other hand, may not be used to expand a justified, but limited, intrusion into a general exploratory search of a person’s belongings until something incriminating at last emerges. To confine the exception within these boundaries, the Court prohibited the use of any evidence seized outside the warrant unless (1) the police have a prior justification for the intrusion; (2) they find the evidence in plain view; (3) they find it inadvertently; and (4) it is ‘immediately apparent to the police that they have evidence before them,____’” (Citations omitted). Id. at 194-195.

The court noted that the fourth element “amounts to a requirement that the police have probable cause to believe the evidence is incriminating before they seize it----Stated another way, to be subject to seizure, the object must be one for which the police could have obtained a warrant because they had probable cause.” Id. at 195.

In Boone v. State, supra, a member of the Prince George’s County Sheriff’s Department assigned to the Eviction Squad, went to Boone’s apartment to execute a warrant of restitution. Before removing Boone’s property from the apartment to the street, the Deputy Sheriff conducted a search of the premises for contraband, money or weapons which were not normally placed on the street. During this search he found a checkbook and several identification cards belonging to one Gale Acevedo. He also found credit cards belonging to other persons. The Sheriff telephoned Ms. Acevedo and she informed him that her purse had been stolen. As a consequence, the Sheriff contacted the police and turned these items over to them. This court held:

“We think Wilson is dispositive of this issue. Mach clearly did not have probable cause to believe the credit cards were incriminating before he seized them. In fact, he testified that he had no knowledge that the cards were stolen. The presence of credit cards bearing several different names creates ‘no more than a mere suspicion that any of the [credit cards] were stolen.’ Like Wilson, the incriminating nature of the evidence became apparent only after the seizure. Accordingly, we find that the seizure was illegal.” Id. at 33.

The court of appeals in State v. Boone, 284 Md. 1 (1978) in affirming this court, held:

“Whether we regard the credit cards as the ‘fruit of crime’ or ‘mere evidence,’ the record fails to show that the Deputy Sheriff had probable cause to seize them. We are in full accord with the findings of the Court of Special Appeals:
“We hold that the seizure of the credit cards was not justified under the plain view doctrine.” Id. at 11.

In the present case, Officer Guzzo clearly did not have probable cause to believe the purses were incriminating before he seized them. He had no knowledge of the Baltimore robberies, nor did he know what was inside the purses. Although finding three ladies’ handbags in the car where three men had just been arrested for illegal possession of handguns may have aroused the officer’s suspicion, the incriminating nature of the evidence became apparent only after the search and'the telephone call to one of the victims. The State cannot buttress its probable cause theory on the result of the search and the information received from the victim. Accordingly, we hold the search was not justified under the “plain view” doctrine, and that the trial court erred in not suppressing this evidence. Furthermore, we cannot say that the admission into evidence of the handbags and the property contained therein was not prejudicial or harmless error beyond a reasonable doubt. Dorsey v. State, 276 Md. 638 (1976).

II.

The contention of the appellant that he was denied a right to a speedy trial is without substance and warrants little discussion.

Appellant was arrested in New York on January 10, 1976. He was subsequently convicted and sentenced for a handgun violation. On January 30, 1976, an indictment was filed charging him with the Mondie Beauty Shop robberies. Although a formal request for his extradition was sent to the New York authorities on March 5, 1976, the records do not show the reason he was not extradited. On October 26, 1976, appellant filed a pro se motion to dismiss the indictment for lack of a speedy trial. He was returned to Maryland on December 31,1976, and his trial was scheduled for February 16, 1977. At the request of appellant’s attorney the trial date was re-scheduled to April 19, 1977.

In order to determine whether the appellant has been denied a speedy trial we must, in making our independent constitutional appraisal, engage in a four factor balancing test as delineated by the Supreme Court in Barker v. Wingo, 407 U. S. 514 (1972). The four factors are: (1) The length of the delay; (2) reason for the delay; (3) the defendant’s assertion of rights; (4) prejudice to the defendant.

After applying each of the four factors set forth in Barker, supra, to the facts in this case, we conclude that the appellant’s right to a speedy trial was not denied.

III.

The final argument of appellant that the evidence was insufficient to sustain his conviction is equally without merit.

This court has stated:

“In a jury trial, the test as to whether the evidence was sufficient in law to permit the trial judge properly to deny Appellant’s motion for a judgment of acquittal and to submit the case to the jury is whether the admissible evidence adduced at the trial either showed directly, or circumstantially, or supported a rational inference of, the facts to be proved from which a jury could fairly be convinced, beyond a reasonable doubt, of the Appellant’s guilt of the offense charged. Williams v. State, 5 Md. App. 450, 459; Metz v. State, 9 Md. App. 15, 23.”

McCree v. State, 33 Md. App. 82, 86 (1976).

Applying the above test to the present case, we conclude that the evidence adduced at the trial, including the pocketbooks and the items contained therein which went before the jury, was sufficient to sustain appellant’s convictions. Consistent with the court of appeals’ holding in State v. Boone, supra, we shall remand for a new trial. “A re-trial is not constitutionally proscribed when judgment is reversed on an appellate court’s determination that evidence was erroneously admitted,...”. Id. at 17.

Judgments reversed.

Case remanded for a new trial.

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


author: Moylan, J.,

text:
    NICHOLAS BOSLEY MERRYMAN KEMP v. NANCY C. KEMP
    [No. 333,
    September Term, 1978.]

      Decided April 11, 1979.

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

      Robert A. DiCicco and Beatrice S. Daly for appellant.

      Donald F. Chiarello for appellee.
   Moylan, J.,

delivered the opinion of the Court.

We are called upon here to decide whether there was sufficient evidence of extraordinary circumstances to warrant a suspension of the appellant’s right of visitation with his now 11-year-old son.

The appellant, Nicholas Bosley Merryman Kemp (father), and the appellee, Nancy C. Kemp (mother), were married on December 8,1961. Two children were born as a result of that marriage — a daughter, Frances Jeffries (Jeff), born December 17,1962, and a son, Nicholas Bosley Merryman, Jr. (Buzz), born July 20, 1967, the subject of this appeal. Marital problems caused the parties to separate in October, 1972. They were subsequently divorced on May 17, 1974. The divorce decree provided, inter alia, that the mother would have custody of the children and that the father would have reasonable rights of visitation. The decree set out a specific schedule for the father’s visitation with his children. The decree further provided that the father was to contribute $50 per week to the support of each child and such other sums as set forth in the property settlement agreement incorporated into the decree. In the agreement, the father, among other things, agreed to pay the reasonable medical and dental expenses of the children and to maintain adequate medical insurance coverage for them. The agreement provided that he would be consulted on all major medical, surgical and/or dental needs of the children, except where emergency would not so permit.

Apparently, ever since the parties separated, they have argued over the appellant’s visitation with Buzz. The arguments reached a head in the summer of 1975 when each party petitioned the court to hold the other in contempt for violations of the divorce decree, and the mother sought to modify the visitation schedule. Before disposition of the various petitions by the court, however, the parties resolved their differences. Even though the child’s psychiatrist recommended a suspension of visitation, the parties agreed that the father would see his son for two days every other weekend instead of one day every weekend, as set forth in the divorce decree.

The resolution was short-lived. On April 22, 1977, the mother again filed a petition to modify the father’s visitation rights. She alleged that the appellant and his present wife were having domestic problems and that the continued visitation of Buzz with his father under these circumstances and in this environment was not in the child’s best interests. Her allegation was based on conversations between her attorney and the appellant’s present wife. On May 2, 1977, the court ordered an investigation of the matter by the Probation Department of the Circuit Court for Baltimore County.

Meanwhile, since April 10,1977, the mother had not allowed the father to visit with his son. On June 27, the father, therefore, filed a petition to hold the mother in contempt of court for failure to comply with the visitation provisions of the divorce decree. He also discontinued sending her support payments for Buzz. As a result, on July 6, the mother filed a cross-petition to hold the father in contempt for failure to pay child support. In her petition, she also stated that Buzz has been under the medical care of a psychiatrist since December 30,1972, and that his father has refused to pay the cost of this psychiatric treatment.

After a full hearing on the petition of April 22, 1977, to modify the father’s visitation rights and on the cross-petitions of June 27 and July 6, 1977, to hold each of the parties in contempt, the chancellor issued a memorandum and order finding that the continued visitation of Buzz with his father would not be in the child’s best interests. The chancellor also suspended the support payments for Buzz as of the date of the last payment. He found that the conduct of the father was not the sole cause of the estrangement between the father and son and suspended the father’s contributions to the support of his son so long as the child refuses to visit with his father. The chancellor dismissed the cross-petitions of June 27 and July 6 to hold each of the parties in contempt but ordered the father to pay the psychiatrist’s fee.

The father has filed an appeal from that judgment and the mother has filed a cross-appeal. The father contends that the evidence did not justify a suspension of his right of visitation with his son and that the chancellor erred in ordering him to pay the cost of his son’s psychiatric treatment. He further contends that the chancellor erred in failing to hold the appellee in contempt of court for refusing to allow him visitation with his son in accordance with the provisions of the divorce decree. The mother contends that the chancellor erred in suspending support payments for Buzz and in failing to find the father in contempt of court for his arrearages in child support.

The appellant is a general contractor, specializing in excavating. He has operated his own business, on first a part-time and later a full-time basis, since 1949. One month after divorcing the appellee, he married his present wife, Eleanor (Ellie), who is considerably younger than he. The appellant and Ellie have one child, a son, born September 22, 1976, and Ellie has a daughter by a previous marriage, whom the appellant has adopted. The appellant and his current wife reside on the same farm in northern Baltimore County where the appellant and appellee resided when they were married.

The incident which precipitated the appellee’s refusal to permit Buzz to visit with his father occurred in April, 1977. The appellee’s attorney received a telephone call from the appellant’s current wife telling him that she and the appellant were having domestic problems and that she thought it would be advisable that Buzz not visit with them while they were having these problems. She told the attorney that the quarrels had come very close to physical strikings between them and that they were affecting her own two young children. The appellee’s attorney wrote to the appellant advising him that Buzz was aware of the problems at the Kemp home and that they had affected him considerably. He advised the appellant that, under the circumstances, the appellee would not permit further visitation.

The appellant explained to the appellee’s attorney that he and Ellie merely had an argument over money on April 12. At the hearing, the appellant denied that he and his wife are having serious domestic problems or that they had any violent arguments in Buzz’s presence. He testified that on many weekends he consented not to see his son because Buzz would have other activities planned. When the visitation schedule was changed to alternate weekends in November of 1976, Buzz would still have things planned on the weekends he was to visit with him. Sometimes when the appellant went to pick up his son, nobody would be at home. The appellant testified that it would take' his son some time to “unwind” when visiting with him but that once he “loosened up,” he seemed to enjoy himself. He testified that Buzz gets along well with Ellie and their daughter.

The appellee gave a completely different version of the child’s visits with his father. She testified that Buzz has begged her not to make him visit his father and that she, on many occasions, has had to force him to go. She testified that prior to December, 1976, when Buzz was visiting with his father every weekend, he would come home on Sunday nights with severe asthma attacks which required emergency treatment at the hospital and that he experienced severe stomach cramps following the visits which would last for several days, interfering with his school work. The appellee testified that Buzz’s grades at school were very, very poor and that he was very unhappy that he was being forced to visit with his father. Buzz’s work would improve the weeks there was no visitation but would slump again after a visit. She testified that Buzz told her that there was a great deal of arguing and fighting at the Kemp home and that he felt uncomfortable there and begged her not to make him go. The appellee testified that since visitation ceased in April, 1977, Buzz has been very, very happy and has had no asthma attacks or stomach cramps.

In questioning by the chancellor, in chambers, out of the presence of the parties, Buzz reaffirmed essentially what his mother had testified — that he did not want to visit with his father. He testified that visits with his father were “no fun” and that there was “nothing to do.” He testified that he disliked very much visiting with Ellie and her daughter, “Boo.” When the chancellor questioned him whether he wanted his father completely out of his life, he nodded affirmatively. He said that he never wanted to see his father again. He told the chancellor that his father always yells at him and that he feels his father does not love him. Buzz testified that he has been happy that he has not seen his father since Easter, 1977. The chancellor questioned him whether he missed his father, and he shook his head negatively. The chancellor asked Buzz if he would be willing to visit with his father at a place where Ellie was not present, but he insisted that he did not wish to see his father.

The appellee testified that she discontinued Buzz’s visits with his father on the advice of the child’s psychiatrist, Dr. John M. Arthur. Dr. Arthur testified that he has seen Buzz sporadically over a period of four or five years and sporadically over the course of the last several months. He expressed the opinion that visitation should not be reinstated or continued at this time. He gave as the basis for his opinion:

“Well, I saw Buzz Kemp originally because he was doing very poorly in school, very poorly socially and this could not be accounted for by psychological studies or by his inability and the psychologist referred him to me as a child with personality problems that he thought was interfering with his functioning. It became clear to me after, I can’t say, a number of months that the friction between his parents was a very heavy burden on this boy; he felt this as a very heavy burden. He really suffered from his parents bickering over many issues. One of the issues being, the major one being over him and what he would be doing, where he should spend his time, what he should do____ He had many exciting weekends with his father, actually, at this time and his mother worried about it____[Tlhey would do dramatic things that he thought was very exciting, motorcycle, things that his mother didn’t have where they lived in the city and this excited the boy, pleased him and worried his mother, but over a longer period of time it became clear that he was really burdened by the fact that they differed and he was torn in his loyalty between which one he should please, whether he should stay home with his mother or go spend more time with his father. He did poorly, functioned poorly, I think, in general for a bright, perceptive boy. As time went on it became more clear that he was much more comfortable at home with his mother and the exciting things provided by his father simply were no longer exciting and just this past year his schooling has been much improved. He is functioning like a bright boy should function. He is obviously happier, happier than I have ever seen him and I think, too, that this is connected with the approval — with his not being required to go see his father. I think required is the correct word. He considers this a real — he considers it a strain, a burden.”

Dr. Arthur felt that forcing Buzz to visit with his father was destructive to the future relationship between them. He testified that Buzz was much happier when he saw him in July of 1977 and that his happiness and his doing better in school were directly related to his feeling that he was not required to see his father.

The chancellor gave great weight to the opinion of Dr. Arthur. He felt that the psychiatrist’s opinion was of such “probative force” as to warrant a suspension of visitation privileges.

In Radford v. Matczuk, 223 Md. 483, the Court of Appeals quoted the general rule from 2 Nelson, Divorce, § 15.26 (2d ed.) that “The right of visitation is an important, natural and legal right, although it is not an absolute right, but is one which must yield to the good of the child.” As Nelson further points out, however, a parent should not be denied access to his child in the absence of extraordinary circumstances and only in exceptional cases.

We are not dealing here with an errant parent who has led an immoral or criminal way of life which would adversely affect the welfare of the child. Nor are we dealing with a parent who has been guilty of other grave misconduct such as abandonment of the child, refusal to support, cruelty or neglect. We are simply dealing here with a situation where a child does not wish to visit with his father because he does not like his visitation being the object of controversy in disputes between his parents.

The Court in Roberts v. Roberts, 35 Md. App. 497, at 508, pointed out the infrequency with which courts suspend all visitation privileges:

“[I]n a series of cases beginning with Hill v. Hill, 49 Md. 450 (1878), and continuing through Hild v. Hild, 221 Md. 349, 157 A. 2d 442 (1960), [the Court of Appeals] had never had an occasion to deny the right of visitation to an errant parent. Almost 17 years have passed since the Radford case and we find no case either in the Court of Appeals or in this Court where such visitation rights were denied.”

We do not feel that the circumstances here present the exceptional case where all access to the child should be denied the father. The report of the Probation Department to the court made no recommendation that visitation be suspended. Nor was there any clear showing otherwise that any contact of the child with his father would be so detrimental to the child as seriously to endanger his well-being. It has rather been the squabbling of the parents between themselves over the circumstances of the child’s visitation that has been more responsible in the past for the child’s unhappiness than the child’s contact with his father per se. Dr. Arthur’s opinion that visitation should be discontinued was based on the fact that with a cessation in visitation, Buzz is no longer torn in his loyalty between his parents and is much happier. Dr. Arthur testified that the parties constantly bickered over what would occur during Buzz’s visits with his father and that Buzz consequently “was torn in his loyalty between which [parent] he should please, whether he should stay home with his mother or go spend more time with his father.” We do not feel, however, that such a situation presents the “extraordinary circumstances” which would warrant a complete cessation of visitation privileges, nor do we feel that the estrangement which now exists between the father and son will be mended or reduced by a continued cessation of visitation privileges. If anthing, the lack of visitation will only further alienate the child from his father. The child’s wish not to see his father, as expressed at the hearing, has most likely been influenced somewhat by his mother. Although that wish may be taken into consideration, it is not controlling of the visitation question. Absent any other evidence here that visitation would adversely affect the child’s welfare, the father’s visitation with his son must be reinstated.

We, therefore, reverse the judgment striking out the father’s visitation rights with his son and remand the case for the entry of an order allowing the father reasonable visitation privileges. The chancellor may, in the exercise of his discretion, decide the frequency and length of the visits, where those visits are to take place, and whatever details of the visits the chancellor considers reasonable and appropriate.

The appellant’s second contention is that the equity court lacked jurisdiction to compel him to pay the cost of Buzz’s psychiatric treatment. The chancellor ordered that the appellant reimburse the appellee the $1,245 which she had paid to Dr. Arthur. One of the provisions of the separation agreement, which was incorporated into the divorce decree, states:

.. The Husband further agrees to pay reasonable medical and dental expenses for said minor children and to maintain in full force and effect adequate Blue Cross-Blue Shield coverage, or similar medical insurance for said minor children. The Husband shall be consulted on all major medical, surgical and/or dental needs for the minor children except where emergency will not permit, provided, however, that Husband shall not unreasonably withhold his consent....”

The appellee counters that since this provision was incorporated into the divorce decree, the equity court retained jurisdiction to enforce its decree.

In Rand v. Rand, 13 Md. App. 574, 582, we held that “[a]n equity court has no jurisdiction to compel a father to pay unusual medical expenses in retrospect..., or after a decree of divorce has been entered (citations omitted)” but that the remedy is one at law. The Court there quoted at length from Kriedo v. Kriedo, 159 Md. 229, at 233:

“Our conclusion, therefore, is that the father is primarily liable for the extraordinary necessary expenses shown to have been incurred for the benefit of his deceased minor child, which liability is to the persons rendering the service in cases where those rendering service have not been paid, and that the mother is entitled to reimbursement from the father in those cases in which payment has been made by her, but that upon the refusal of the father to pay, the remedy is by a suit at law wherein he is entitled to have a jury pass upon questions of fact, including the inquiry as to whether the services were rendered, whether they were necessary, and whether the charge was a reasonable and proper one.” (Emphasis supplied).

The fact that one of the provisions of the separation agreement, which was incorporated into the divorce decree, provided that the father was to pay “reasonable medical and dental expenses for said minor children” does not alter that holding. The father’s primary liability for the medical expenses is to the supplier of the services. It is clear that that liability could only be pursued by the supplier of the services in an action at law and could, in no event, be enforced by the supplier in equity. Even though it is the mother who is seeking to be reimbursed for the cost of the psychiatric treatment, the father is, nevertheless, entitled to have a jury pass upon the same questions of fact — whether the services were necessary and whether the charges were reasonable — as he would be if the supplier of the services brought an action against him. In Frank v. Frank, 203 Md. 361, an agreement making a similar provision for medical expenses was incorporated into the divorce decree. The Court, in passing, there noted, at 369:

“[T]he agreement was modified to provide that the husband should pay all medical expenses incurred or to be incurred because of the mental illness of one child and $16 a week for support of the other, all subject to further order of court. As modified the agreement was incorporated in the decree, which was assented to by the parties. It is quite clear that the order to pay medical expenses was beyond the court’s authority, in the absence of agreement.... The husband’s liability, to pay for necessaries furnished his minor child, is to the supplier in an action at law, and not enforceable by application of the wife to the divorce court. Kriedo v. Kriedo, supra." (Citations omitted) (Emphasis supplied).

We, accordingly, hold that the chancellor lacked jurisdiction to order the appellant to reimburse the appellee for the cost of Buzz’s psychiatric treatment.

Each party now asserts that the chancellor abused his discretion in refusing to hold the other in contempt. The mother suspended Buzz’s visitation with his father in April, 1977, upon the advice of Dr. Arthur. The appellant subsequently stopped sending her support payments for Buzz. After she filed her petition to cite him for contempt, he did, however, send several checks for all the arrears directly to Buzz. The appellee refused these checks because they were not made payable to her. On the basis of this evidence, the chancellor refused to hold either party in contempt for violations of the divorce decree.

It is clear that under Courts Art. § 12-304 (a), the right of appeal in contempt cases is not available to the party who unsuccessfully sought to have the other adjudged in contempt. Even assuming, however, that the order “refusing to impose the order for civil contempt is so much a part of or so closely intertwined with [the] judgment or decree which is appealable as to be reviewable on appeal as part of or in connection with the main judgment,” as provided in Tyler v. Baltimore County, 256 Md. 64, 71 (see also Becker v. Becker, 29 Md. App. 339, 345-346), we hold that the chancellor’s conclusion not to adjudge either party in contempt was not a clear abuse of his discretion.

There remains for consideration the mother’s contention on her cross-appeal that the chancellor erred in suspending support payments for Buzz as of the date of the last payment on May 20, 1977. In cancelling the arrears and suspending future support payments, the chancellor viewed the provisions of the divorce decree providing support payments for Buzz and allowing the father reasonable visitation privileges as being mutually dependent:

“The evidence proves that the best interest of the son will be served, for this court to order-cessation of visitation rights of the father, and suspension of the support payments, as of the date of the last payment, subject to the continuing jurisdiction of this court.
“The evidence proves that the conduct of the [father] is not the sole cause of the estrangement between himself and his son. Consequently, in equity and good conscience, the [father’s] obligation to contribute to the support of his son in the future ought to be suspended so long as the son refuses to visit the [father].”

The appellant also viewed his exercise of visitation privileges and his duty to support Buzz as dependent on each other. The chancellor’s memorandum states:

“[The father’s] counsel argued that it would be better for the child if this court ordered him to visit with his father; that if the visitation is resumed, the father will pay the arrearages in child support and continue to make the regular payments in the future.”

The payment of child support and the exercise of visitation privileges as provided in a divorce decree are not mutually dependent. See Stancill v. Stancill, 41 Md. App. 335 (1979). The mother’s denial of visitation, therefore, is neither an absolute defense to enforcement of arrears in child support payments provided by a divorce decree nor, of itself, grounds for suspending future payments. Of paramount consideration in the equity court’s inherent power to modify or cancel arrears in child support or reduce or suspend future payments is always the best interests and welfare of the child. In suspending the payments here, the chancellor considered the equitable circumstances that the mother had been denying the father visitation privileges and that the child did not wish to see his father but did not consider the financial position of the parties and what effect a suspension of support payments to the mother would have on the welfare of the child. In view of the fact that the provisions of the decree regarding child support payments and visitation are not mutually dependent, that the father at no time made any request, formal or informal, that future payments be suspended and, in fact, attempted to send checks for all the arrearages directly to Buzz, and that there was no evidence of the financial position of the parties and whether the mother could adequately provide for the child, the arrearages should not have been cancelled nor the future payments suspended.

Judgment affirmed in part and reversed in part; case remanded for further proceedings in accordance with this opinion; costs to be paid equally by appellant and appellee.

      . Jeff no longer visits with her father and, as per an agreement between the parties, the appellant is no longer supporting her.


author: Moore, J.,

text:
    CHARLES S. TUCKER v. STATE OF MARYLAND
    [No. 549,
    September Term, 1978.]

      Decided April 11, 1979.

    The cause was argued before Moore, Lowe and Melvin, JJ.

      Martha Weisheit, Assistant Public Defender; with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Diane G. Goldsmith, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, Warren B.

      Duckett, Jr., State's Attorney for Anne Arundel County, and R. David Fordham, Assistant State’s Attorney for Anne Arundel County, on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

At a bench trial in the Circuit Court for Anne Arundel County, appellant, Charles S. Tucker, was convicted of escape and a consecutive 18-month sentence was imposed. In his brief, filed on October 3,1978, six separate issues were raised.

At oral argument on December 13, 1978, counsel for appellant requested leave to raise a new issue, that of noncompliance with Maryland Rule 735, in light of this Court’s decision in Biddle v. State, 40 Md. App. 399, filed on October 13, 1978, some 10 days subsequent to the filing of appellant’s brief. Thereafter, pursuant to leave of court, appellant’s counsel filed a written motion on January 9,1979 that the court, pursuant to Maryland Rule 1046 (f), consider this new issue.

On January 16, 1979, the court signed an Order “that the issue, ‘Did the trial judge err in permitting trial to proceed without first determining on the record that the appellant had knowingly and intelligently waived his right to jury trial as required by Maryland Rule 735?’ first raised before this Court upon oral argument be considered along with other issues raised in the brief of appellant.” The court also granted a motion by appellant to supplement the record, pursuant to Maryland Rule 1027, by the inclusion of the transcript of appellant’s arraignment on October 10, 1978 in the Circuit Court for Anne Arundel County and of proceedings on a motion for discovery held on November 18, 1978 (Goudy, J.). The basis for the aforesaid motion and Order was appellant’s statement that “matters which transpired in prior proceedings may be pertinent to the success of the present appeal.”

Upon our examination of the record, we find that although two written elections for a court trial were filed, there was no inquiry on the record to determine if the election was voluntary. There was no compliance with Maryland Rule 735 d as amended by 5 Md. Reg. 1788-89 (1978) which provides:

“d. When Court Trial Elected.
If the defendant elects to be tried by the court, the trial of the case on its merits before the court may not proceed until the court determines, after inquiry of the defendant on the record, that the defendant has made his election for a court trial with full knowledge of his right to a jury trial and that he has knowingly and voluntarily waived the right. If the court determines otherwise, it shall give the defendant another election pursuant to this Rule.”

Accordingly, as Chief Judge Gilbert stated in Biddle v. State.

“Because the record in the case sub judice unequivocally shows a non-compliance with Md. Rule 735 d, the trial on the merits should not have proceeded. Ergo, the judgment must be reversed and the case remanded for a new trial.”

40 Md. App. at 407.

The State concedes that there was noncompliance with the Rule and, therefore, that the issue raised at oral argument is meritorious. However, it contends that the proper avenue of relief is through post conviction proceedings, and that the belated assertion of the issue should not be permitted. We do not agree. To a similar argument in Biddle v. State, the Court responded:

“Although the State asserts now that the issue of non-compliance with Rule 735 was not preserved for appeal, we believe the rule requires that the record affirmatively show compliance with its tenets, and that the failure to object does not preclude appellate review. This is so because Rule 735 d has a constitutional aspect similar to that of a guilty plea. The rule specifically forbids the trial court to proceed with the trial on the merits until there has been compliance with Rule 735 d, i.e., a determination on the record of a knowing and intelligent waiver of the right to trial by jury. Cf. Davis v. State, 278 Md. 103, 361 A. 2d 113 (1976). A waiver of a constitutional right must appear affirmatively in the record, Boykin v. Alabama, 395 U. S. 238, 89 S. Ct. 1709, 23 L.Ed.2d 274 (1969), and a failure of it to so appear is not grounds for dismissal of the appeal. Indeed, it is the very basis of the appeal.” (Emphasis in the original.)

40 Md. App. at 407.

We recognize that one of appellant’s contentions in his brief is that he was denied his constitutional right to a speedy trial. Such deprivation would mandate a reversal without a new trial. However, the delay here from indictment to trial consisted of approximately five months and was not, therefore, of constitutional dimension.

Judgment reversed; cause remanded for a new trial; Anne Arundel County to pay the costs.

      . We observe that the inquiry by the court required by the Rule was not made at the proceedings of October 10 and November 18,1978. The question whether inquiry made at either of such dates would satisfy the Rule is not before us.