author: Gilbert, C. J.,

text:
    MICHAEL P. DE BLEECKER v. MONTGOMERY COUNTY, MARYLAND et al.
    [No. 1043,
    September Term, 1980.]

      Decided April 13, 1981.

    The cause was argued before Gilbert, C. J., and Melvin and Couch, JJ.

      Gary Howard Simpson for appellant.

      Hugh E. Donovan, with whom were Donovan & Nash on the brief, for appellees Montgomery County, Blake and Sander. Edward B. Layne, Jr., for appellees Montgomery County Board of Education and Norma C. Day.
   Gilbert, C. J.,

delivered the opinion of the Court.

This is a unique appeal in this Court because it is the first case appearing before us that is bottomed on the federal statute permitting civil actions for alleged deprivation of constitutional or statutory rights.

The federal statute upon which the instant appeal was built is 42 U.S.C. §§ 1983 and 1985. Section 1983 provides:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

Section 1985 (3) provides:

"If two or more persons in any State or Territory conspire, or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws, or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice-President, or as a member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.”

Historically, cases arising under federal statutes have been heard and decided exclusively by the federal court system. The State’s courts generally have been strangers to such causes. Civil rights deprivation suits have, to a degree, changed the focus from exclusively federal to State and federal.

Justice Brandeis, writing for a unanimous Court in McKnett v. St. Louis & San Francisco Railway Co., 292 U.S. 230, 54 S. Ct. 690, 78 L. Ed. 1227 (1934) observed:

"The power of a State to determine the limits of the jurisdiction of its courts and the character of the controversies which shall be heard in them is, of course, subject to the restrictions imposed by the Federal Constitution. .. .
While Congress has not attempted to compel states to provide courts for the enforcement of the Federal Employers’ Liability Act, Douglas v. New York, N.H. & H.R. Co., 279 U.S. 377, 387 [49 S. Ct. 355, 356, 73 L. Ed. 747, 752 (1929)], the Federal Constitution prohibits state courts of general jurisdiction from refusing to do so solely because the suit is brought under a federal law. ... A state may not discriminate against rights arising under federal laws.” Id. at 233-34, 54 S. Ct. at 691, 78 L. Ed. at 1229.

Professor Charles Alan Wright, in his Handbook of the Law of Federal Courts (3d ed. 1976) ch. 8, § 45, states that unless the Congress has conferred exclusive jurisdiction in federal courts, the State courts have concurrent jurisdiction even though the action "is entirely based on a federal claim.” Id. at 193.

Although it has been clear for many years that State courts could hear federal claims, it was not at all pellucid that they were required to do so. The question, Professor Wright notes, was "finally resolved in the Second Employers’ Liability Cases [223 U.S. 1, 32 S. Ct. 169, 56 L. Ed. 327 (1912)], where it was held that claims arising under the Federal Employers’ Liability Act could be enforced, as of right, in the courts of the states if their jurisdiction, as prescribed by local laws, was adequate to the occasion.” Id.

"The Supreme Court,” however, "has not as yet considered whether Congress can require state courts to entertain federal claims where there is no analogous state-created right enforceable in the state courts.” Id. at 195. Nevertheless, a number of decisions of less august courts have concluded that the State and federal courts have concurrent jurisdiction with respect to the entertainment of civil rights actions brought pursuant to 42 U.S.C. § 1983. See Perry v. Apache Junction Elementary School District, 20 Ariz. App. 561, 514 P.2d 514 (1973); Williams v. Horvath, 16 Cal. 3d 834, 129 Cal. Rptr. 453, 548 P.2d 1125 (1976); Alberty v. Daniel, 25 Ill. App. 3d 291, 323 N.E.2d 110 (1974); Kish v. Wright, 562 P.2d 625 (Utah 1977); Terry v. Kolski, 78 Wisc. 2d 475, 254 N.W.2d 704 (1977); Bennun v. Board of Governors of Rutgers State University, 413 F. Supp. 1274 (D.C.N.J. 1976). But see Chamberlain v. Brown, 223 Tenn. 25, 442 S.W.2d 248 (1969). This was held to be equally applicable to cases arising under 42 U.S.C. § 1985. Vason v. Carrano, 31 Conn. Sup. 338, 330 A.2d 98 (1974); Luker v. Nelson, 341 F. Supp. 111 (N.D. Ill. 1972); Bennun v. Board of Governors of Rutgers State University, supra.

The jurisdiction of the Circuit Court for Montgomery County was never an issue in the case. We have set out the statute and the discussion relative to concurrent jurisdiction in order that the reader understand why and how a claim based solely on a federal statute was litigated in a State court rather than in a federal court. We align ourselves with the above-cited cases and hold that Maryland courts have jurisdiction to try actions based upon 42 U.S.C. §§ 1983 and 1985. We turn now to the instant appeal.

The appellant, Michael P. De Bleecker was hired by the Montgomery County Board of Education (Board) in June 1973 as a part-time, temporary employee for the specific purpose of teaching the inmates in the Montgomery County Detention Center (Center). By the terms of his employment he was neither tenured nor was he hired for a specific time period. De Bleecker’s job was to continue "until such time as the program on which he was working terminated.”

De Bleecker had begun teaching one of the inmates on Friday morning of July 22, 1977, when there was "some slamming and ... unusual noise which indicated there was a fight” in the immediate area. De Bleecker "called the guards” and then "ran up toward the place where the fight took place.” He saw one of the inmates, Antonio Thomas, in a cell, lying "on the floor beside the bunk.” The fight was over when De Bleecker arrived. He helped Thomas out of the cell, and while the two of them were heading toward the school dorm, Sergeant Barricklow, a correctional officer, "came running up the steps and ... grabbed Thomas.” Barricklow, with the assistance of two other guards, forced Thomas into a cell. De Bleecker testified that he "could not see anything because the door” while half open, shielded "the bunk” from view. De Bleecker said, however, that he heard sounds of "slamming and... struggling.” He went into the cell in order to help, but he was sent away by the officers. When the guards brought Thomas out of the cell, De Bleecker observed that Thomas’s "head was swollen up, and . . . [there were] some blood stains.”

De Bleecker returned to the classroom where some inmates were discussing the incident. De Bleecker expressed to them his disapproval of Sergeant Barricklow’s behavior. He recommended to his audience that they be "sincere, honest, ... and not to be afraid of telling the truth” during any investigation. Later that day, De Bleecker submitted a written report of the incident to the Center officials.

Three days later, when De Bleecker reported for work at the Center, he was called into a meeting with Gary Blake, Director of the Center. Blake told De Bleecker that he, Blake, would investigate the matter, and he suggested that De Bleecker take the day off because the guards would deny De Bleecker access to the Center.

As a result of his investigation, Gary Blake, on August 1, 1977, sent a letter to the Board. The Blake letter stated that, "Mr. De Bleecker acted in an irresponsible and emotional manner.” It further declared that De Bleecker’s discussion with the inmates concerning Sergeant Barricklow’s "violent behavior” constituted "a serious security violation.” Blake concluded that Corrections had determined that "De Bleecker’s services . .. [were] no longer desired or permitted at the .. . Center.” The following day, De Bleecker received his official termination notice from the Board.

De Bleecker filed suit in the circuit court against Montgomery County, the Board, Gary Blake, and Norma C. Day, Director of the Department of Adult Education. The complaint alleged there was conspiracy to deprive and a deprivation of De Bleecker’s civil rights. De Bleecker averred that he was denied a due process right to pre- and post-termination hearings, and a violation of his First Amendment right of free speech.

At the close of De Bleecker’s evidence, Judge John F. McAuliffe granted the motions of the several defendants for directed verdicts in their favor on all counts.

Judge McAuliffe ruled that "as a pure matter of contract law and employer/employee law, [De Bleecker] was not entitled to a pretermination hearing.” He observed that "[t]here was no contention made that [De Bleecker] was under a specific term of employment.” It was conceded that De Bleecker was a temporary employee, terminable at will.

The judge further rpíed that because of the difficulty in maintaining order and a high level of discipline in any penal institution, De Bleecker’s comments to the inmates were not constitutionally protected speech and conduct under the circumstances. Judge McAuliffe opined that De Bleecker’s "subsequent discharge grounded upon that conduct [was] not a violation of any constitutional right... .”

Lastly, the trial court held "as a matter of law” that Messrs. Blake and Sander "acted in good faith in taking the action that they did,” based upon their investigation of the incident.

De Bleecker argues on appeal that "the trial court erroneously granted the appellees’ motion[s] for a directed verdict.” He advances four issues to us, namely:

"1. Whether termination of an adult education teacher without a hearing violates his due process rights.
2. Whether termination of an adult education teacher for his exercise of free speech violates his First Amendment rights.
"3. Whether a factual issue — the existence of a good faith defense — is the proper subject of a directed verdict.
4. Whether a municipality is entitled to the good faith defense of its officers when the County has deprived an employee of his constitutional rights.”

We think the four issues may be reduced in number to one, and that is:

Whether a person hired as a temporary part-time employee has a constitutionally protected interest in the continuation of his employment, when it is terminated in accordance with the contract terms.

A similar question to that raised here was present in Parker v. Board of Education of Prince George’s County, Md., 237 F. Supp. 222 (D.C. Md.), aff’d, 348 F.2d 464 (4th Cir. 1965), cert. denied, 382 U.S. 1030, 86 S. Ct. 653, 15 L. Ed. 2d 543 (1966). Parker, a probationary teacher in the public schools in Prince George’s County, brought suit against the County Board of Education. Parker alleged that the County Board had denied him due process of law by terminating his employment without a hearing. He said that the termination resulted from his assigning and teaching from a particular book, and, therefore, the Board of Education denied him the right of free speech. The probationary teacher’s contract with the Board of Education of Prince George’s County provided that "either of the parties to the contract may terminate it at the end of the first or second year by giving thirty days’ notice in writing to the other during the month of June or July.” Id. at 224.

The United States District Court (District of Maryland) concluded that the County Board’s action terminating the contract was strictly in compliance with the provisions of the agreement, and no constitutional rights were infringed. Then Chief Judge Thomsen (now a Senior District Judge) held that a probationary teacher does not have a constitutional right to a hearing before the County Board on termination of his contract, if the termination is in accordance with the terms of the contract. The judge further concluded that Parker’s allegations did not demonstrate that he was denied freedom of speech. Judge Thomsen wrote:

"Even if such allegations were present, they would afford no ground for the relief sought in this case. The right of free speech or expression, like other First Amendment guarantees, is not absolute. Where the abridgement of the abstract right of free speech results from government action taken for the protection of other substantial public rights, no constitutional deprivation will be found to exist, American Communications Ass’n., CIO v. Douds, 339 U.S. 382, 70 S. Ct. 674, 94 L.Ed. 925 (1950). No unconstitutionality results where the right of free speech is reasonably curtailed as a prerequisite to continued government employment. Ibid, at p. 398; United Public Workers of America v. Mitchell, 330 U.S. 75, 95, 67 S.Ct. 556 [, 91 L.Ed. 754] (1947); Opinion of the Justices, 332 Mass. 785, 127 N.E.2d 663 (1955).” 237 F. Supp. at 229.

On appeal, the United States Court of Appeals (4th Cir.), in Parker v. Board of Education of Prince George’s County, Md., 348 F.2d 464 (1965), determined that it was unnecessary to consider the merits of the alleged deprivations of constitutional rights. The Court said:

"We need not pass on the merits of the Fifth, Fourteenth and First Amendment deprivations and abridgement asserted by the appellant, consisting of the Board’s termination of his employment (1.) without a hearing and (2.) because of his instruction from a book which he said had been proscribed by the Board in violation of freedom of speech. Our decision rests entirely on the contract. By its terms Parker was only employed provisionally and wholly without academic tenure, express or implied. The agreement was that his engagement was simply probationary and 'that either of the parties to this contract may terminate it at the end of the first or second school year by giving thirty days’ notice in writing to the other during the month of June or July.’ Concededly, the termination complied with this stipulation. We join the District Judge in upholding the Board’s action on this ground. Parker v. Board of Education, 237 F. Supp. 222 (D.C. Md. 1965).” 348 F.2d at 465.

De Bleecker’s employment contract was not offered into evidence, and we do not have the advantage of having read it. Nevertheless, it was conceded at trial that De Bleecker was hired by the Board as a temporary, part-time employee for the specific purpose of teaching the inmates in the Center. His term of employment was undefined.

An employment contract for an unspecified term is terminable without liability at the will of either party. Vincent v. Palmer, 179 Md. 365, 370-71, 19 A.2d 183, 187 (1941). In W.B. & A.R.R. Co. v. Moss, 127 Md. 12, 21, 96 A. 273, 276 (1915), the Court of Appeals of Maryland opined:

"[N]o action will lie on the breach of a contract of employment unless there is a definite time fixed for the continuance of the employment. The reason for the rule is that the hiring would be one merely at will and could be terminated at the pleasure of either party.” (Citations omitted.)

In the matter now before us, De Bleecker was not under contract with the Center. Center officials, however, had absolute discretion in determining whether De Bleecker was a threat to the security of the institution.

When the correctional authorities barred De Bleecker from the Center, the Board no longer needed his services. We think De Bleecker’s discharge was in accord with the terms of his employment which provided that his job would continue "until such time as the program on which he was working terminated.” Inasmuch as the Center would not allow De Bleecker to enter, the program, at least as far as he was concerned, was ended.

We agree with Judge McAuliffe that De Bleecker was not entitled to a pre-termination hearing, and the Board’s action in terminating De Bleecker’s employment did not violate any of his constitutional rights.

We think the granting of the motions for directed verdicts was proper.

Judgments affirmed.

Costs to be paid by appellant.

      . "These cases are also frequently cited under the name Mondou v. New York, N.H. & H.R.C.” Handbook of the Law of Federal Courts, supra, p. 193, n. 5.

      . The Board contracts yearly with the Montgomery County Department of Corrections (Corrections) to provide adult education services to the inmates. De Bleecker was under contract with the County Board of Education, not with Corrections.

      . De Bleecker subsequently filed an amendment to his complaint. He added Larry E. Sander, the former Director of Corrections, as a defendant.

      . Aldous Huxley’s, Brave New World.

      . We need not decide whether De Bleecker’s comments to the inmates amounted to First Amendment protected speech. Even if his speech were protected, his job was not. As Judge Thomsen noted in Parker, supra, "[N]o person has a constitutional right to public employment, either as a school teacher or in any other type of occupation.” 237 F. Supp. at 227.


source: Caselaw Access Project

author: Liss, J.,

license: Public Domain

text:
    TEDDY-ROSE ENTERPRISES, INC. v. HARTFORD FIRE INSURANCE COMPANY
    [No. 1100,
    September Term, 1980.]

      Decided April 14, 1981.

    The cause was argued before Gilbert, C. J., and Liss and MacDaniel, JJ.

      Saul M. Schwartzbach, with whom were Schwartzbach & Wortman on the brief, for appellant.

      Alan R. Siciliano, with whom were O’Malley, Miles, Farrington & McCarthy on the brief, for appellee.

      Note: Certiorari denied, Court of Appeals of Maryland, September 9, 1981.

   Liss, J.,

delivered the opinion of the Court.

Teddy-Rose Enterprises, Inc., appellant, sued Hartford Fire Insurance Company, appellee, in the Circuit Court for Prince George’s County, claiming that the latter was liable to it for losses sustained from the destruction by fire of improvements and betterments made by appellant to a property located in Prince George’s County.

The record discloses that on December 2, 1976, Charles'J. Paiano entered into a lease agreement whereby he agreed to rent from Larry Millison the property here involved to be used as a bar, liquor store, and restaurant. The lease was for a term of five years, to run from January 1, 1977 through December 31, 1981, with a five year option to renew. The lessee began to make structural improvements to the leased premises but became ill prior to the completion of these improvements.

On August 20, 1977, Paiano entered into an agreement of sale by the terms of which he agreed to sell all his right, title, and interest in the premises, including the liquor license, to the appellant for a sum of $45,000. The sale included all leasehold improvements made by the seller as well as fixtures, equipments, signs, utensils, tools, stock in trade and other various items which Paiano had a "legal” right to transfer. In addition, Paiano conveyed to appellant the seller’s rights under the lease, with the agreement that appellant would negotiate a new lease at the time of settlement. All the transactions involving the sale of the leasehold were done with the knowledge and approval of Larry Millison, the landlord.

On August 20, 1977, the same day the agreement of sale was signed between Paiano and appellant, appellant renegotiated the terms of the leasehold interest and a second lease between appellant and Larry Millison was executed. This lease was to run from September 1, 1977, until August 31, 1981, with an option to renew for five additional years. The terms of this lease were essentially the same as the December 1976 lease between Paiano and Millison.

Appellant took possession of the premises and resumed and completed the improvements Paiano had begun. Appellant also procured a fire insurance policy from appellee, commencing in November of 1977 for a period of one year.

On December 4,1977, the premises were destroyed by fire. Pursuant to the terms of the policy, appellee paid to appellant the sum of $44,243.25. This figure represented the value of the building and its contents, including fixtures, furniture and leasehold improvements. Adjustments were made for depreciation and the deductible as stated in the policy. Of that amount, $2,797.10 was for leasehold improvements to the premises after the owner entered into the lease with appellant. Appellee refused to pay on the loss to the improvements made by Paiano before the sale of the premises to appellant.

The matter came to trial without a jury and at the close of the evidence the trial judge denied appellant any recovery for the value of improvements made by Paiano. From this judgment, this appeal was filed. Three issues are raised to be determined by this Court:

1. Was appellant entitled to compensation for losses from the destruction by fire of improvements and betterments made to the demised premises by Paiano?

2. Was appellant entitled to compensation for losses from the destruction by fire of improvements and betterments it made to the demised premises after September 1, 1977?

3. Was there sufficient evidence from which the trial judge could determine the value of betterments and improvements made by appellant?

1.

The relevant language contained in the insurance policy in dispute provides as follows:

This coverage shall also include Tenant’s Improvements and Betterments when not otherwise specifically covered. Tenant’s Improvements and Betterments means the named Insured’s use interest and fixtures, alterations, and installations or additions comprising a part of the buildings occupied but not owned by the named insured and made or acquired at the expense of the named insured exclusive of rent paid by the named insured but which are not legally subject to removal by the named insured.

We agree with the trial judge in his holding that any improvements made by the appellant after September 1, 1977 were covered under the terms of the policy. Appellee does not dispute this holding but contends that the compensation due to appellant under this ruling was included in the monies paid to the appellant pursuant to the policy. The dispute concerns the contested right of appellant to recover under the policy for improvements made by Paiano before he entered into his contract of sale with the appellant. It is conceded by both parties to this appeal that improvements of a structural nature made on a leasehold premises by the lessee becomes the property of the lessor upon termination of the lease. Bauernschmidt Brewing Co. v. McColgan, 89 Md. 135, 42 A. 907 (1899).

The appellant seeks to avoid the implications' of this long recognized principle by contending that it was an assignee of Paiano’s lease and that in being such an assignee, it retained uninterrupted possession of the leased premises until the new lease between Millison and appellant was executed. Appellant further contends that the premises and the improvements made thereon never reverted to the landlord so as to vest the landlord with ownership of the improvements made by Paiano. We do not agree.

The record does not substantiate appellant’s contention that the parties contemplated an assignment of Paiano’s lease. The lease clearly states that the tenant "will not at any time assign this agreement or sublet the property thus let or any portion thereof without the consent in writing of said landlord.” It is conceded that no such written consent to an assignment of the lease was ever sought by the tenant or given by the landlord. The agreement of sale, and particularly paragraphs six and nine of that agreement, indicate the intention of the parties. Those sections read, in pertinent part, as follows:

(6) Included in this sale are all of the seller’s rights under the present lease on the premises dated December 2, 1976, it being understood, however, that at the time of the settlement hereof purchaser shall execute a new lease, which shall supersede seller’s present lease, which shall then be void.
(9) This agreement and settlement hereunder is conditioned entirely upon purchaser receiving from the landlord a commitment for a new lease of five years with an additional five-year renewal option. . . . (Emphasis added)

It is evident from this language that no assignment was contemplated by the parties.

Under the common law of fixtures, a tenant has been held not to be entitled to remove from leased premises things of a personal nature or other structures erected by the tenant which have been so fixed to the land as to become a part thereof and to be deemed "fixtures.” Once personalty has become a fixture, it is held to have become a part of the property to which it is affixed and cannot be removed unless it falls within the trade fixture exception. See Rasch v. Safe Deposit & Trust Co., 136 Md. 435, 111 A. 121 (1920); Thompson Scenic Ry. Co. v. Young, 90 Md. 278, 44 A. 1024 (1899); Bauernschmidt Brewing Co. v. McColgan, supra; Allentown Plaza Associates v. Suburban Propane Gas Corp., 43 Md. App. 337, 405 A.2d 326 (1979).

The early case of Carlin v. Ritter, 68 Md. 478, 13 A. 370 (1888) discussed the law as to landlords’ and tenants’ rights with respect to fixtures and trade fixtures. In Carlin, the owner of a hotel rented the premises and building to a tenant on a year-to-year lease. During the course of the tenancy the tenant erected certain buildings and trade fixtures in and on the demised premises. Later the landlord notified the tenant to quit the premises at the expiration of the then existing year-to-year term. Instead, the tenant negotiated a new five year lease with the landlord. The new lease made no mention of the fixtures and trade fixtures on the premises and included no reservation of the right of removal of the fixtures or trade fixtures on behalf of the tenant. The tenant died during the term of the five year lease and bequeathed his interest in the lease to his widow. At the expiration of the five year term the widow attempted to remove the improvements and trade fixtures from the premises and the landlord obtained an injunction restraining her from removing them. In discussing the respective rights of the parties, the Court of Appeals stated:

The position sustained by the overwhelming weight of authority both English and American, and ancient and modern, is that where a tenant quits possession or surrenders the premises unqualifiedly to his landlord without removing or reserving his fixtures, he is understood to make a dereliction of them to his landlord. . . . [citation omitted.]
From the law as thus stated it clearly follows that if the tenant in this case had, under the notice to quit given in 1880, removed from the premises without severing and taking with him the fixtures in question, they would have become the absolute property of the landlord. He did not, however, quit the possession, but what he did was this: he recognized the notice as putting an end to his tenancy by the year, and accepted from his landlord the lease above referred to, which took effect at the expiration of his yearly tenancy under the notice. The operative effect of this lease as a conveyance and the implied obligation thereby cast upon the lessee have been already stated. It is a lease for a term of years to take effect upon the expiration of the prior yearly tenancy, containing terms, conditions and stipulations which did not pertain to the prior tenancy by the year, and which contained no reservation of the right to remove the fixtures then on the premises; and it was under this lease that the tenant continued in possession. The question then immediately before us is, what effect had the acceptance of this lease and continuing in possession under it, upon the tenant’s right to remove these trade fixtures? And here again, in answer to this question, all the elementary writers concur in laying down the proposition that if a tenant having the right to remove fixtures erected by him on the demised premises accepts a new lease of such premises without reservation or mention of any claim to such fixtures, and enters upon a new term thereunder, the right of removal is lost, notwithstanding his actual possession has been continuous. And the reason given is because the fixtures set upon the premises at the time of the lease are part of the thing demised, and the tenant by accepting a lease of the land without reserving his right to the fixtures has acknowledged the right of his landlord to them, which he is afterwards estopped from denying, [citations omitted.] 68 Md. at 487-88.

The Court of Appeals followed this decision in Bauernschmidt Brewing Co. v. McColgan, supra, where the Court held that if a tenant has reserved the right to remove certain fixtures from the demised premises and he subsequently executes a new lease without such a reservation, the right of removal is lost and the fixtures are considered to be surrendered to the landlord. The Court further held that where a tenant executes a bill of sale of the premises, the right to remove fixtures does not carry over to the third party after the execution of a new lease.

As a result of Carlin and Bauernschmidt, supra, the Maryland Legislature adopted in 1898 Article 21, Section 8-209 of the Annotated Code of Maryland (now Section 8-114 of the Real Property Article (1974)), which provides:

8-114. The right of a tenant to remove fixtures erected by him is not lost or impaired by his acceptance of a subsequent lease of the same premises without any intermediate . surrender of possession.

The Court of Appeals concluded in Rasch v. Safe Deposit & Trust Co., supra, that a party to whom a tenant has assigned a lease occupies the same position relative to removing the fixtures as the tenant who installed them. Appellant contends that there had been a valid assignment of Paiano’s lease and a subsequent renewal of the lease. Under the authorities cited herein, appellant would then have an insurable interest under the policy issued by appellee. However, the facts in the case at bar fail to establish that a valid assignment of the lease was ever contemplated or consummated by the parties. Rather, the evidence supports the contrary; i.e., that Paiano’s lease was to be terminated and a new lease was to be negotiated by the landlord and appellant. Appellant failed to negotiate in his new lease any reservation to remove the fixtures and the absence of such a clause operates so as to vest ownership of the fixtures in the owner of the property. We therefore conclude that appellant could obtain no insurable interest in the improvements and betterments erected by Paiano.

2 & 3.

It is contended by the appellee that the value of the improvements and betterments to the premises made by appellant after it took possession were included in the sum paid to the appellant. Even if we accept appellant’s contention that the check did not include the betterments and improvements made by the appellant after September 1, 1977, we are faced with the fact that the trial judge concluded that the appellant failed to meet its burden of proof as to the damages which it sustained.

Our reading of the record extract does not convince us that the trial judge was clearly erroneous. In the absence of such a conclusion we are constrained under the terms of Rule 1086 of the Maryland Rules of Procedure to affirm the conclusion of the trial judge.

Judgment affirmed; costs to be paid by appellant.


author: Thompson, J.,

text:
    RALPH DUPONT DAVIS and STEVEN GEORGE THOMAS v. STATE OF MARYLAND
    [No. 1116,
    September Term, 1980.]

      Decided April 14, 1981.

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

      Gary W. Christopher, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellants.

      Michael A. Anselmi, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Mark Cohen, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Article 23 of the Declaration of Rights to the Maryland Constitution provides that a jury in a criminal case "shall be Judges of Law, as well as the fact.” The Court of Appeals in Stevenson v. State, Md. , 423 A.2d 558 (1980), has very recently (December 17, 1980), considerably altered the application of this provision of our Constitution holding:

"Implicit in the decisions of this Court limiting the jury’s judicial role to the 'law of the crime’ is a recognition that all other legal issues are for the judge alone to decide. Because of this division of the law-judging function between judge and jury, it is incumbent upon a trial judge to carefully delineate for the jury the following dichotomy: (i) that the jury, under Article 23, is the final arbiter of disputes as to the substantive 'law of the crime,’ as well as the 'legal effect of the evidence,’ and that any comments by the judge concerning these matters are advisory only; and (ii) that, by virtue of this same constitutional provision, all other aspects of law (e.g., the burden of proof, the requirement of unanimity, the validity of a statute) are beyond the jury’s pale, and that the judge’s comments on these matters are binding upon that body. In other words, the jury should not be informed that all of the court’s instructions are merely advisory; rather only that portion of the charge addressed to the former areas of 'law’ may be regarded as non-binding by it, and it is only these aspects of the 'law’ which counsel may dispute in their respective arguments to the jury.” Id. 423 A.2d at 565.

Relying upon this holding, the appellants here, Ralph Dupont Davis and Steven George Thomas, contend that the Criminal Court of Baltimore committed reversible error when it refused a request that the jury be instructed that, even though they were judges of the law, they were bound by the trial court’s instruction that the burden was upon the State to prove their guilt beyond a reasonable doubt. We agree.

The State first contends that the appellants’ objection was not sufficient to preserve the issue, because it constituted "a frontal one against the jury’s role under the Maryland Constitution and not a peripheral one asking for instructions of one or more of the limitations upon that role.” Jones v. State, 29 Md. App. 182, 204, 348 A.2d 55 (1975), rev’d on other grounds, 279 Md. 1, 367 A.2d 1 (1976), cert. denied, 431 U.S. 915 (1977).. We are unable to follow the State’s argument. The basis for the objection was quite clear; it was the failure of the trial judge to instruct the jury that they were bound by the judge’s instruction concerning the burden of proof. Even if the basis for the objection is not explicitly stated, the objection was still sufficient, under the principles set forth in Sergeant Co. v. Pickett, 283 Md. 284, 388 A.2d 543 (1978). There the Court, construing Rule 554 d and e, the civil counterpart to the Criminal Rule 757 f, said at 288-89:

"The reason for Rule 554 d and e, as this Court stated in Fisher v. Balto. Transit Co., 184 Md. 399, 402, 41 A.2d 297 (1945), 'is obviously to enable the trial court to correct any inadvertent error or omission in the oral charge, as well as to limit the review on appeal to those errors which are brought to the trial court’s attention.’ In this manner, the trial judge is afforded 'an opportunity to amend or supplement his charge if he deems an amendment necessary.’ State v. Wolleyhan Transport Co., 192 Md. 686, 689-90, 65 A.2d 321 (1949). Succinctly put, then, the rule is designed to afford the trial judge and opposing counsel ample opportunity to be informed of the nature and grounds of the exception. Indeed, no special form is required for the objection and no ground need even be stated 'where the record makes clear that all parties and the court understood the reason for the objection.’ Exxon Corp. v. Kelly, 281 Md. 689, 694 n.6, 381 A.2d 1146 (1978).

It is obvious to us that in the instant case all persons involved below clearly understood that the appellants desired an instruction that the jury was bound by the trial court’s instruction concerning burden of proof beyond a reasonable doubt.

Neither are we impressed by the state’s argument that the charge complied with the Stevenson requirements even though they were given before Stevenson was decided. The appellants made a specific request as to the burden of proof which was denied. This is a clear violation of the Stevenson language, and we therefore reverse the appellants’ robbery convictions.

We do not reach the other issues raised by the appellants.

Judgments reversed.

Case remanded for a new trial.

Costs not reallocated pursuant to Maryland Rule 1082f.

      . The retroactivity of Stevenson v. State, supra is not in issue here. This case is covered by the principle laid down in McClain v. State, 288 Md. 456, 419 A.2d 369 (1980), in which the Court held that even though one of its decisions was not retroactive, it would apply nonetheless where the point was raised below and the appellant simply sought to have the same principle applied to his case, which was pending at the time of the decision. The Court said:
      "This case is unlike many cases in which a retroactive application of a new rule has been sought in that it is not a collateral attack on a prior judgment nor is it one on direct review where the point was not raised in the trial court and it is sought to be raised on appellate review. Here, as we have already held, the point was raised below and McClain simply seeks to have applied in his case the same rule which was applied in Johnson’s case.” Id. 288 Md. at 463.

        See also, Lewis v. State, 285 Md. 705, 724, 404 A.2d 1073 (1979).

      . Maryland Rule 554 d provides:
      “If a party has an objection to any portion of any instruction given, or to any omission therefrom, or the failure to give any instruction, he shall before the jury retires to consider its verdict make such objection stating distinctly the portion, or omission, or failure to instruct to which he objects and the ground of his objection. Opportunity shall be given to make the objection in open court out of the hearing of. the jury upon application either orally or in writing, made before or after the conclusion of the charge.”
      Maryland Rule 554 e provides:
      "Upon appeal a party in assigning error in the instructions, shall be restricted to (1) the particular portion of the instructions given or the particular omission therefrom or the particular failure to instruct distinctly objected to before the jury retired and (2) the grounds of objection distinctly stated at the time, and no other errors or assignments of error in the instructions shall be considered by the appellate court.”
      Maryland Rule 757 f states:
      "If a party has an objection to any instructions, to any omission therefrom, or to the failure to give an instruction he shall make the objection on the record before the jury retires to consider its verdict and shall state distinctly the matter or omission, or failure to instruct to which he objects and the grounds of his objection. Upon request of any party, the court shall receive objections out of the hearing of the jury.”


text:
    STATE OF MARYLAND v. HARRY LOVEDAY, the younger
    [No. 1119,
    September Term, 1980.]

      Decided April 14, 1981.

      The cause was submitted on briefs to Gilbert, C. J., and Thompson and Moylan, JJ.
    Submitted by Stephen H. Sachs, Attorney General, Michael A. Anselmi, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Glenn L. Klavans, Assistant State’s Attorney for Baltimore City, for appellant.
    Submitted by Alan H. Murrell, Public Defender, and Claudia A. Córtese, Assistant Public Defender, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

The State of Maryland waged a battle in the Criminal Court of Baltimore to have Harry Loveday sentenced as a "three time offender.” The State has appealed from the trial judge’s refusal to invoke Md. Ann. Code art. 27, § 643B (c). Had the judge followed section 643B (c), Loveday would have been sentenced to 25 years instead of 10 years. The State asks that we vacate the sentence imposed by the criminal court and remand the matter for the imposition of a proper sentence.

Implicitly conceding that although he won the battle, he might lose the war, Loveday suggests that there be a factual finding by the trial judge as to whether the prosecutor trampled upon Loveday’s right to due process of law. In sum, Loveday thinks he is in the "catbird seat” and seeks to return to the arena to fight again, obviously in the expectation that he will carry the day.

This case has arisen because of an agreement to disagree on a plea bargain. From the record, we glean that Loveday’s trial attorney had entered into negotiations with the prosecutor about a plea of guilty to one of the charges facing Loveday. It was agreed between the attorneys that if Loveday would plead guilty to robbery, the State would stand silent as to any recommendation relative to the sentence.

When informed by his attorney that he, Loveday, would be sentenced to about 10 years, Loveday rejected the opportunity to plead guilty and opted for a jury trial. In the light of his counsel’s advice, Loveday may have reasoned that he had nothing to gain by pleading guilty.

Following the jury’s verdict of guilty, but before the imposition of sentence, the State filed a motion for mandatory sentence pursuant to Md. Rule 734 and Md. Ann. Code art. 27, § 643B (c) and (d). Those sections provide:

"Any person who (1) has been convicted on two separate occasions of a crime of violence where the convictions do not arise from a single incident, and (2) has served at least one term of confinement in a correctional institution as a result of a conviction of a crime of violence, shall be sentenced, on being convicted a third time of a crime of violence, to imprisonment for the term allowed by law, but, in any event, not less than 25 years. Neither the sentence nor any part of it may be suspended, and the person shall not be eligible for parole except in accordance with the provisions of Article 31B, § 11.
(d) ... If the State intends to proceed against a person as a subsequent offender under this section, it shall comply with the procedures set forth in the Maryland Rules for the indictment and trial of a subsequent offender.”

The State sought to have the trial court impose a 25-year sentence on Loveday because of Loveday’s prior term for a crime of violence.

The trial judge refused to impose sentence under section 643B (c), and he opined that the statute "was not mandatory ... under the circumstances... .” The judge was obviously disturbed by what he considered to be "almost a set-up,” saying that the State offered Loveday "one sentence” and after it was rejected, the State then sought to use the mandatory penalty statute. "Fundamental fairness,” the judge said, precluded the imposition in this case of the mandatory sentence.

This Court has had the occasion to pass upon the question of whether section 643B is mandatory or directory. In State v. Temoney, 45 Md. App. 569, 414 A.2d 240 (1980), Judge Weant, speaking for the Court, said that section 643B (c) is mandatory and the trial judge must consider it when imposing sentence. Id. at 584, 414 A.2d at 247. Ergo, the trial judge in the matter now before us was in error in concluding that section 643B (c) was directory. See also Calhoun v. State, 46 Md. App. 478, 418 A.2d 1241 (1980), aff’d, 290 Md. 1, 425 A.2d 1361 (1981). We shall remand the case pursuant to Md. Rule 1071 for the trial court’s reconsideration.

Our discussion does not end, however, with our decision to remand. We must address the question of whether the State’s failure to disclose, during the time of the plea bargaining, that it was considering the employment of section 643B (c) if the plea negotiating failed, and Loveday opted for trial on the merits, was a denial of Fourteenth Amendment due process.

A prosecutor is not ordinarily obligated to recommend leniency or stand silent at the time of sentencing unless by a plea bargain he has bound himself to that course of conduct. See e.g., Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971); Miller v. State, 272 Md. 249, 322 A.2d 527 (1974); Sturgis v. State, 25 Md. App. 628, 336 A.2d 803 (1975); Wynn v. State, 22 Md. App. 165, 322 A.2d 564 (1974). It has been held that the prosecutor is not required to give advance notice to an accused that "trial on the substantive offense will be followed by an habitual criminal proceeding.” Oyler v. Boyles, 368 U.S. 448, 452, 82 S. Ct. 501, 7 L. Ed. 2d 446 (1962). See Graham v. West Virginia, 224 U.S. 616, 626, 32 S. Ct. 583, 56 L. Ed. 917 (1912).

Md. Rule 734 b provides that when a guilty or nolo contendere plea is made, the increased penalty may not be employed unless the State, 15 days prior to its implementation of the habitual offender status, has supplied notice of its intent to utilize section 643B. The rule does not, however, mandate that such a notice must be given prior to trial when the defendant’s plea is "not guilty,” but, if following conviction, the State intends to rely upon the habitual offender statute, it must furnish the accused notice of that intent "at least 15 days prior to sentencing.”

Loveday argues that in the instant case he should have been advised by the State when the plea bargain was being discussed that the State intended to invoke section 643B (c) should the bargain not be struck. Implicit in that argument is that had the State revealed its intent, Loveday would not have elected to stand trial on his plea of not guilty. Having made that assertion, Loveday then proceeds to suggest that "the prosecutor’s prompt invocation of the mandatory sentencing procedure raises the serious possibility that the State in fact knew of . . . [Loveday’s] alleged prior convictions before trial and during plea bargaining.” By so suggesting, Loveday seeks to taint the State in such a way as to demonstrate bad faith in the negotiations and, thus, a denial to Loveday of due process.

The prosecutor’s prompt invocation, following conviction of Loveday by the jury, of the provisions of section 643B (c) and Md. Rule 734 does not give rise to an inference that the prosecutor knew of Loveday’s prior record. Nevertheless, even if he did know of Loveday’s "priors” he was not required to disclose his intent to invoke section 643B (c). Furthermore, it is unlikely that any one knew more about Loveday’s prior criminal record than Loveday himself.

In order for the trial court to impose a sentence under section 643B, there must be a hearing to determine whether the accused and the person who had been previously convicted of a crime of violence are one and the same. Md. Rule 734 e. Additionally, but of equal importance, the judge must find that the previous conviction was not unconstitutionally obtained. United States v. Tucker, 404 U.S. 443, 92 S. Ct. 589, 30 L. Ed. 2d 592 (1972); Burgett v. Texas, 389 U.S. 109, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967); Carroll v. State, 19 Md. App. 179, 310 A.2d 161 (1973); Towers v. Director, 16 Md. App. 678, 299 A.2d 461 (1973). If the prior conviction is constitutionally invalid, it may not be used as a basis for enhanced punishment. Burgett y. Texas, supra.

Unquestionably, Maryland has the right to enact and enforce a recidivist statute, Rummell v. Estell, 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980), and to decide the type of offense that falls within the ambit of such a statute. Id. This is true, as Rummell notes, because the State "has a valid interest in so dealing with ... [habitual offenders].” Id. at 276.

The United States District Court, in Wessling v. Bennett, 290 F. Supp. 511, 518 (D.C.N.D. Iowa 1968), cert. denied, 396 U.S. 945 (1969), flatly held, in a fact pattern similar to that in' the matter before us, that:

"[Wessling] was entitled to a fair trial on his guilt or innocence of the crime charged. He was obviously not entitled to an offer by the County Attorney of a lesser plea and could have secured no vested interest in such an offer when made. The offer could have been withdrawn at any time even if ... [Wessling] had accepted it and he would have no standing to complain. Therefore, that a lack of knowledge of the habitual claim affected his judgment on whether to accept a lesser charge can give ... [Wessling] no solace as he was only entitled to have a trial comporting to basic standards of fairness — not favoritism.”

See also United States ex rel. Williams v. McMann, 436 F.2d 103 (2d Cir.), cert. denied, 402 U.S. 914 (1970).

Loveday cites us to People v. Fountain, 407 Mich. 96, 282 N.W.2d 168 (1979). There, the Supreme Court of Michigan reversed a conviction grounded on the habitual offender article because the prosecutor knew of the prior offense before trial but did not invoke the habitual offender article until after trial but before sentencing. The Michigan Court, in a per curiam opinion, said that under their supervisory powers the failure of the prosecutor to notify the defendant of his intent to rely upon the habitual offender article amounted to the "appearance of prosecutorial impropriety.” Id. at 99, 282 N.W.2d at 170. We reject that holding. Not only is it out of line with Oyler v. Boyles, supra, but we are not persuaded by its reasoning.

A defendant has the right "not to plead guilty,” United States v. Jackson, 390 U.S. 570, 581, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968), and the imposition of punishment in retaliation for the exercise of that right is unconstitutional. North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). While Pearce involved the question of vindictiveness of the trial judge, the rule has been extended to cover the actions of prosecutors, Blackledge v. Perry, 417 U.S. 21, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974), but we do not perceive any prosecutorial impropriety in the instant case. Bordenkircher, Penitentiary Superintendent v. Hayes, 434 U.S. 357, 98 S. Ct. 663, 54 L. Ed. 2d 604 (1978).

Loveday also argues that equity and fair play should govern plea negotiations. We agree, but "equity and fair play” does not mean that the State is required to muster every weapon it has and parade them before an accused. We do not observe any indicia in the instant case of a denial of "equity or fair play” in the plea negotiations, nor do we perceive an absence of "fundamental fairness.”

Sentence vacated.

Case remanded for further proceedings consistent herewith.

Costs to be paid by appellee.

      . An expression used by a former New York Yankee baseball announcer. It means having the upper hand or things to your advantage.

      . Md. Ann. Code art. 27, § 486 prescribes that a penalty for the crime of robbery be "not less than three nor more than ten years.”

      . Md. Rule 734 provides:
      "a. Definition.

        A subsequent offender means a defendant who, because of prior conviction, is subject to additional or mandatory statutory punishment for the offense charged.
      b. Required Notice of Additional Penalties.

      Except as provided in section c of this Rule, no defendant shall be sentenced as a subsequent offender unless prior to acceptance of a plea of guilty or nolo contendere or at least 15 days prior to trial,  whichever is earlier, the State’s Attorney serves a notice on the defendant or his counsel that the State will seek increased punishment as authorized by law. The notice shall set forth each prior conviction to be relied upon.
      c. Mandatory Penalties.

      If a mandatory sentence is prescribed by law because of a specified previous conviction, the State’s Attorney, at least 15 days prior to sentencing, shall serve upon the defendant or his counsel a notice of the alleged prior conviction which would require imposition of the mandatory sentence.
      d. Disclosure of the Notice.

      After acceptance of a plea of guilty or nolo contendere or after conviction a copy of the notice shall be filed with the clerk and presented to the court. The allegation that the defendant is a subsequent offender is not an issue in the trial upon a charging document and may not be disclosed to the trier of fact without the consent of the defendant, except as permitted in this Rule. Nothing herein shall prohibit the use of any prior conviction for impeachment purposes, if the evidence is otherwise admissible.
      e. Determination.

      Before sentencing and after giving the defendant an opportunity to be heard, the court shall determine whether the defendant is a subsequent offender as specified in the notice of the State’s Attorney.”

      . Section 643B (a) defines a "crime of violence.” The section provides:
      "As used in this section, the term 'crime of violence’ means abduction; arson; kidnapping; manslaughter, except involuntary manslaughter; mayhem; murder; rape; robbery; sexual offense in the first degree; sexual offense in the second degree; use of a handgun in the commission of a felony or other crime of violence; an attempt to commit any of the aforesaid offenses; assault with intent to murder; and assault with intent to rape.
      The term 'correctional institution’ includes Patuxent Institution and a local or regional jail or detention center.”


author: MacDaniel, J.,

text:
    DAVID HAROLD UTT a/k/a Harold David Utt v. WARDEN, BALTIMORE CITY JAIL
    [No. 1183,
    September Term, 1980.]

      Decided April 14, 1981.

    The cause was submitted on briefs to Couch, MacDaniel and Weant, JJ.
    Submitted by Alan H. Murrell, Public Defender, and
      George E. Burns, Jr., Assistant Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Ann E. Singleton, Assistant Attorney General, William A, Swisher, State’s Attorney for Baltimore City, and Sandy Kemick, Assistant State’s Attorney for Baltimore City, for appellee.
   MacDaniel, J.,

delivered the opinion of the Court.

In this appeal we are asked to consider whether the Sixth Amendment to the United States Constitution confers a right to have the assistance of counsel at a governor’s extradition hearing. We shall hold that it does not.

Appellant David Harold Utt, a/k/a Harold David Utt, was wanted in Indiana on charges of theft. He fled that State but for one reason or another was apprehended by Maryland authorities (the record is not clear on the point). Word of appellant’s arrest and detention reached Indiana authorities, whereupon the Governor of Indiana presented a demand for his extradition. On January 24, 1980, and in accordance with the Maryland Uniform Criminal Extradition Act, an executive hearing was held to consider the matter. On January 28,1980, the Governor of Maryland signed appellant’s warrant of rendition.

By Order of the Baltimore City Court, entered March 3, 1980, appellant was remanded to the custody of the warden of the Baltimore City Jail pending extradition. On March 10, 1980, appellant filed a petition for a writ of habeas corpus. The petition was heard April 9, 1980, and the following stipulation entered into evidence:

"... it is agreed and stipulated between the State and the petitioner that the petitioner received notification that there was to be an extradition hearing at the 16 Francis Street building, Jeffrey Building, in Annapolis. That is concerning the extradition. And that the petitioner requested that the Public Defender’s Office represent the petitioner. And that the petitioner was told that it was the inappropriate time, that it was too soon, and that the Public Defender’s Office would not represent the petitioner at that hearing. And that the only time that the Public Defender’s Office would step in was after, or when a petition was filed for writ of habeas corpus, Your Honor. That the defendant did want an attorney to represent him. And the defendant did not have an attorney at the time____”

Appellant raised but one issue: denial of his Sixth Amendment right to counsel at the Governor’s hearing. The petition was denied and this appeal followed.

Appellant here asserts, as he asserted below, that the State’s failure to afford him the assistance of counsel at the Governor’s (extradition) hearing amounts to a denial of due process of law, in violation of his rights under the Sixth and Fourteenth Amendments of the Constitution of the United States. Appellee replies that there is no constitutional or statutory right to counsel at a governor’s hearing so that, even assuming appellant was indigent (there was no such proffer in the case), the State was under no obligation to provide it. We are aware of no decision of this Court or of the Court of Appeals in which this issue has been resolved.

The Sixth Amendment right to the assistance of counsel is a fundamental constitutional right, which has been made applicable to the States through the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). Since the Supreme Court’s decision in Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932), it has been clear that these constitutional rights attach whenever adversary judicial proceedings have been initiated against a defendant. Although the Supreme Court has emphasized that "a person’s Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him,” and not before, this is not to suggest that the constitutional right to counsel only attaches at trial itself. Rather, as the Court has made clear, the right attaches at any point in the judicial proceedings against a defendant which may be termed a "critical stage.” Generally, a critical stage has been reached whenever constitutional or other rights can be asserted or waived; when the opportunities for an effective defense must be seized or lost, or where events occur that can affect the entire trial.

In United States v. Wade, supra, 388 U.S. at 226-27, 87 S. Ct. at 1932, 18 L. Ed. 2d at 1149, the Court provided the following guide:

"... In addition to counsel’s presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate the accused’s right to a fair trial. . . . The presence of counsel at such critical confrontations, as at the trial itself, operates to assure that the accused’s interests will be protected consistently with our adversary theory of criminal prosecution... .” (Emphasis added.)

And in Gerstein v. Pugh, 420 U.S. 103, 122, 95 S. Ct. 854, 867, 43 L. Ed. 2d 54, 70 (1975), the Supreme Court stated: "The Court has identified as 'critical stages’ those pretrial procedures that would impair defense on the merits if the accused is required to proceed without counsel.” (Citations omitted.)

In this case there can be no doubt that "adversary criminal proceedings” had been instituted against appellant prior to his extradition hearing (though the record does not precisely describe the manner in which he was charged), so the issue here thus resolves itself to whether such a hearing was a "critical stage” in those proceedings. Our resolution of this issue depends upon an analysis of "whether potential substantial prejudice to [appellant’s] rights inheres in the particular confrontation [i.e., the Governor’s hearing] and the ability of counsel to help avoid that prejudice,” United States v. Wade, supra, 388 U.S. at 227, 87 S. Ct. at 1932, 18 L. Ed. 2d at 1157 (1967), and so calls for a review of the purposes of extradition generally and of extradition procedure under Maryland law.

We note that extradition derives from the Constitution of the United States, Article IV, Section 2, clause 2 of which provides:

"A Person charged in any State with Treason, Felony or other Crime, who shall flee from Justice, and be found in another State, shall on demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime.”

To implement this constitutional provision, Congress has provided in 18 U.S.C. § 3182 that:

"Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within thirty days from the time of the arrest, the prisoner may be discharged.”

The Supreme Court had occasion to consider the purposes and function of the Extradition Clause in Michigan v. Doran, 439 U.S. 282, 99 S. Ct. 530, 58 L. Ed. 2d 521 (1978), when the Court was asked to determine whether the courts of an asylum state may nullify the executive grant of extradition on the ground that the demanding state had failed to show a factual basis for its charge supported by probable cause. It stated, at 439 U.S. 287-89, 99 S. Ct. 534-35, 58 L. Ed. 2d 526-27:

"The Extradition Clause was intended to enable each state to bring offenders to trial as swiftly as possible in the state where the alleged offense was committed. . . . The purpose of the Clause was to preclude any state from becoming a sanctuary for fugitives from justice of another state and thus 'balkanize’ the administration of criminal justice among the several states. It articulated, in mandatory language, the concepts of comity and full faith and credit, found in the immediately preceding clause of Art. IV. The Extradition Clause, like the Commerce Clause, served important national objectives of a newly developing country striving to foster national unity. ... In the administration of justice, no less than in trade and commerce, national unity was thought to be served by de-emphasizing state lines for certain purposes, without impinging on essential state autonomy.
Interstate extradition was intended to be a summary and mandatory executive proceeding derived from the language of Art. IV, § 2, cl. 2, of the Constitution. . . . The Clause never contemplated that the asylum state was to conduct the kind of preliminary inquiry traditionally intervening between the initial arrest and trial.
Near the turn of the century this Court, after acknowledging the possibility that persons may give false information to the police or prosecutors and that a prosecuting attorney may act 'either wantonly or ignorantly,’ concluded:
'While courts will always endeavor to see that no such attempted wrong is successful, on the other hand, care must be taken that the process of extradition be not so burdened as to make it practically valueless. It is but one step in securing the presence of the defendant in the court in which he may be tried, and in no manner determines the question of guilt.’ In re Strauss [197 U.S. 324 (1905)], at 332-33.’” (Citations omitted.)

In addition to Article IV, Section 2 of the Constitution and 18 U.S.C. § 3182, extradition in Maryland is governed by the Uniform Criminal Extradition Act, enacted in 1937, and now codified in the Maryland Annotated Code, Article 41, §§ 16-43.

Article 41, § 18 provides that the Governor cannot lawfully comply with a requisition for extradition unless it appears that the person is substantially charged with a crime against the laws of the demanding State by indictment or affidavit properly certified, and that he is a fugitive from justice of the demanding State. But an extradition requisition reciting that the accused is charged with a certain crime against the demanding State, and that he has become a fugitive from justice of that State, and accompanied by a certified copy of the indictment or affidavit, makes a prima facie case against the accused as an alleged fugitive from justice from that State. Audler v. Kriss, 197 Md. 362, 364 (1951).

Article 41, § 19 provides:

"When a demand shall be made upon the Governor of this State by the executive authority of another state for the surrender of a person so charged with crime, the Governor may call upon the Attorney General or any prosecuting officer in this State to investigate or assist in investigating the demand, and to report to him the situation and circumstances of the person so demanded, and whether he ought to be surrendered.”

Although there is no constitutional right to an executive hearing, Bryson v. Warden, Baltimore City Jail, 287 Md. 467, 469-70 (1980), such a hearing is held in Maryland as a matter of policy, see Maryland Extradition Manual (N. Rogers, ed., p. 23), and is conducted by a hearing officer appointed by the Attorney General. See State ex rel. Zack v. Kriss, 195 Md. 559 (1950). The hearing procedure is informal and the normal rules of evidence and procedure do not apply. Shields v. State, 257 Md. 384, 390 (1970). If the accused appears without counsel, his rights are explained to him by the hearing officer. Although there is no formal transcript, the accused may present witnesses on his behalf, and testimony may be submitted by affidavit. Nevertheless, Article 41, § 34 severely limits the matters which may be inquired into at the hearing; that section provides:

"The guilt or innocence of the accused as to the crime of which he is charged may not be inquired into by the Governor or in any proceeding after the demand for extradition accompanied by a charge of crime in legal form as above provided shall have been presented to the Governor, except as it may be involved in identifying the person held as the person charged with the crime.”

Assuming the Governor decides to comply with the demand for extradition, and a warrant of arrest is subsequently signed and executed in conformity with Article 41, §§ 22-24, § 25 provides that:

"No person arrested upon such warrant shall be delivered over to the agent whom the executive authority demanding him shall have appointed to receive him unless he shall be first taken forthwith before a judge of a court of record in this State, who shall inform him of the demand made for his surrender and of the crime with which he is charged, and that he has the right to demand and procure legal counsel; and if the prisoner or his counsel shall state that he or they desire to test the legality of his arrest, the judge of such court of record shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus. When such writ is applied for, notice thereof, and of the time and place of hearing thereon, shall be given to the prosecuting officer of the county or the City of Baltimore in which the arrest is made and in which the accused is in custody, and to the said agent of the demanding state. If the application for a writ of habeas corpus after an extradition hearing only, is denied by the trial court, the denial may be appealed to the Court of Special Appeals.”

Upon application for a writ of habeas corpus, the scope of review is again severely limited. In Michigan v. Doran, supra, the Supreme Court held that "once the governor of the asylum state has acted on a requisition for extradition based on the demanding state’s judicial determination that probable cause existed, no further judicial inquiry may be had on that issue in the asylum state.” 439 U.S. at 290, 99 S. Ct. at 536, 58 L. Ed. 2d at 528. Rather the Court declared that:

"A governor’s grant of extradition is prima facie evidence that the constitutional and statutory requirements have been met. .. . Once the governor has granted extradition, a court considering release on habeas corpus can do no more than decide (a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive. These are historic facts readily verifiable.”
439 U.S. at 289, 99 S. Ct. at 535, 58 L. Ed. 2d at 527.

And lately, in Bryson v. Warden, Baltimore City Jail, supra, our own Court of Appeals has stated, at 287 Md. 470:

"Our cases and those of our intermediate appellate court make clear that a habeas corpus hearing upon the petition of one against whom a warrant of rendition has been issued is in no way intended to test the guilt of the petitioner or even whether there is probable cause to believe he committed the alleged crime. The issuance of the warrant by the Governor of the asylum state raises a presumption that the accused is the fugitive wanted. It is sufficient to justify his arrest, detention, and delivery to the demanding state. In order to rebut this presumption the accused must prove beyond a reasonable doubt either that he was not present in the demanding state at the time of the alleged offense or that he is not the person named in the warrant. Mere contradictory evidence is not sufficient. Upon proof of one or the other, he is entitled to be released.” (Footnote and citations omitted.)

Having reviewed the constitutional and statutory basis for extradition, we are convinced that a governor’s hearing is not a "critical stage” to which the Sixth Amendment’s right to counsel extends. We reach this result because we think it clear that such a hearing is not a stage of the "adversary criminal proceedings” at which constitutional or other rights must be asserted or waived, or "where counsel’s absence might derogate the accused’s right to a fair trial.” United States v. Wade, supra, 388 U.S. at 226, 87 S. Ct. at 1932, 18 L. Ed. 2d at 1149. As we have indicated, the scope of permissible inquiry is severely restricted throughout the extradition process. Article 41, §§ 18, 19 and 34, Michigan v. Doran, supra, and Bryson v. Warden, Baltimore City Jail, supra, combine to' insure that neither the executive nor the judiciary of the asylum state may so much as consider — not to mention decide — matters touching upon the accused’s guilt or innocence. Rather, the inquiry is confined to whether the alleged fugitive is in fact the one requested by the demanding state. Furthermore, it appears that the scope of permissible inquiry at the habeas corpus proceeding is for all intents and purposes coextensive with that at the Governor’s hearing. Since both statutory and case law guarantee such a proceeding, we believe the provision of counsel at this stage is quite sufficient to safeguard the petitioner’s right to due process of law.

We find that the law on this point in other jurisdictions confirms us in the decision we reach here. Although no cases have reached the United States Supreme Court in which the right to counsel at an extradition hearing has been in issue, the few decisions from lower courts which have considered the question have consistently denied the right.

Accordingly, we hold that the Sixth Amendment of the United States Constitution does not confer a right to have the assistance of counsel at a governor’s extradition hearing. Appellant’s petition for a writ of habeas corpus was therefore properly denied.

Judgment affirmed.

Appellant to pay the costs.

      . Maryland Annotated Code (1957, 1978 Repl. Vol.), Art 41, §§ 16-43. See discussion accompanying n. 6, infra.

      . In Bartholomey v. State, 260 Md. 504, 530-31 (1971), as one of several issues raised, the appellant cited Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999, 26 L. Ed. 2d 387 (1970), as authority for the proposition that he had been denied his Sixth and Fourteenth Amendment constitutional rights to the assistance of counsel when he was not represented by an attorney at an extradition hearing in Delaware — allegedly a critical stage in the prosecution.
      In Coleman, supra, the Supreme Court had held that the accused in that case had been denied his constitutional right to the assistance of counsel under the amendments mentioned because no counsel for him was present at his preliminary hearing in Alabama.
      Rather than decide whether an extradition hearing was indeed a "critical stage” in the prosecution, requiring provision for the assistance of counsel, the Court of Appeals distinguished Coleman, supra, noting, at 260 Md. 531:
      "We have found no decision of the Supreme Court holding that an extradition proceeding is a preliminary hearing at which counsel for the accused need be present; and we would not think it would be. The short answer to the appellant’s contention, however, is that the Coleman case, in any event, only applies in cases in which a preliminary hearing was held on or after June 22, 1970, the date it was decided; and the present case was decided several months prior to that date.”

      . See Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938); Hamilton v. Alabama, 368 U.S. 52, 82 S. Ct. 157, 7 L. Ed. 2d 114 (1961); Gideon, supra; White v. Maryland, 373 U.S. 59, 83 S. Ct. 1050, 10 L. Ed. 2d 193 (1963); Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964); United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967); Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999, 26 L. Ed. 2d 387 (1970).

      . Kirby v. Illinois, 406 U.S. 682, 688, 92 S. Ct. 1877, 1881, 32 L. Ed. 2d 411, 417 (1972). The Supreme Court held that a lineup after arrest but before initiation of adversary criminal proceedings — either by way of formal charge, preliminary hearing, indictment, information or arraignment — is not a criminal prosecution at which the accused is entitled to counsel as a matter of constitutional right.

      . See n. 3, supra.

      . 1937 Md. Laws, Ch. 179. The Act has been adopted by all the States except Mississippi and South Carolina.

      . Appellant cites Scott v. Illinois, 440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. 2d 383 (1979), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973), as authority for his contention that the assistance of counsel at extradition hearings is constitutionally mandated, but these cases are inapposite. In Scott, supra, the Court held that the Sixth and Fourteenth Amendments require that no indigent criminal defendant be sentenced to imprisonment unless the State has afforded him the right to the assistance of appointed counsel, but do not require a State trial court to appoint counsel for a defendant who is charged with a statutory offense for which imprisonment is authorized but. not imposed. And in Gagnon, supia. the Court held that the constitutional right to counsel applied to hearings on revocation of probation.

      . Rugg v. Burr, 402 P.2d 28 (Ariz. 1965); Cohen v. Warden, Montgomery County Detention Center, Rockville, Md., 252 F. Supp. 667, 671 (D. Md. 1966); Roberts v. Hocker, 456 P.2d 425(Nev. 1969); Rutledge v. Preadmore, 21 Mich. App. 726, 176 N.W.2d 417 (1970); U.S. ex rel. Calhoun v. Twomey, 454 F.2d 326, 328 (7 Cir. 1971); Wertheimer v. State, 201 N.W.2d 383 (Minn. 1972); Seymour v. State, 21 Ariz. App. 12, 515 P.2d 39 (1973): Com. ex rel. Coleman v. Cuyler, 396 A.2d 394 (Pa. 1978); State v. Detter, 298 N.C. 604, 260 S.E.2d 567 (1979); Manley v. State, 410 N.E.2d 1338 (Ind. 1980).