The Public Defender Opinion: The Implications of Resting on State-Law Grounds

By Kevin Arthur

It is axiomatic that a state constitution may afford greater rights than the analogous provisions of the federal constitution.  Moreover, if a state court “clearly and expressly states” that its decision rests on an “adequate and independent” state constitutional ground, the Supreme Court cannot reverse that decision even if federal law would not countenance the same result.  Michigan v. Long, 463 U.S. 1032, 1041 (1983).  In effect, therefore, under Michigan v. Long, a state court may insulate an expansive ruling from further review by a potentially hostile federal court, as long as the ruling was based on an adequate and independent state constitutional ground.

Michigan v. Long spurred a minor movement in which state courts, in reaction to the Burger Court’s retrenchment in civil rights and civil liberties, began to expressly base their decisions on state-law grounds.  While the movement was slow in coming to Maryland, Retired Judge John C. Eldridge, who continues to sit by designation with some frequency, has long been one of its advocates.

Last month, Judge Eldridge invoked Michigan v. Long in holding that an indigent criminal defendant has the right to court-appointed counsel at an initial appearance before a district court commissioner.  DeWolfe v. Richmond, ___ Md. ___, 2013 WL 5377174, at *5 n.9 (Sept. 25, 2013); id. at 9.  Writing for a sharply-divided Court of Appeals, Judge Eldridge specifically declined to decide whether an indigent defendant had a federal constitutional right to counsel at the initial appearance.  Id. at *5.  Instead, the majority opinion relied solely on the due process component of Article 24 of the Maryland Declaration of Rights.  Id. at 5-9.

At an initial hearing, a district court commissioner determines, among other things, whether the defendant is eligible for pretrial release on bail and, if so, on what terms.  See DeWolfe, 2013 WL 5377174, at *2.  If the commissioner does not release the defendant, he or she must appear before a district court judge “‘immediately if the Court is in session, or if the Court is not in session, at the next session of the court'” for a bail review hearing.  Id. (quoting Md. Crim. Proc. Code Ann. § 5-215).  If, however, a defendant is arrested on a weekend or a holiday, he or she may be jailed for several days before appearing before a judge.  DeWolfe, 2013 WL 5377174, at *5.  In addition, at the initial appearance itself, the defendant typically does not have access to counsel, while the State is not only represented, but may communicate on an ex parte basis with commissioner.  Id. at 2.  The record reflected the “devastating effects” that could result when a commissioner failed to consider all facts relevant to a bail determination, including health and safety risks, as well as the risk that low-wage workers will lose their jobs.  Id.

In holding that the state constitution required the provision of counsel at the initial appearance before the commissioner and not merely at the subsequent bail review hearing before a district court judge, Judge Eldridge cited Rutherford v. Rutherford, 296 Md. 347, 358 (1983).  In that case, and in other subsequent cases, the Court of Appeals has recognized that under Article 24 “‘the constitutional right to counsel is broader than the specific guarantee of the Sixth Amendment'” and the right-to-counsel provision of the Maryland Constitution, “‘Article 21 of the Declaration of Rights.'” Id. (quoting Rutherford, 296 Md. at 358).

According to Rutherford, and the majority opinion in DeWolfe, “‘[a] defendant’s actual  incarceration in a jail, as a result of a proceeding at which he was unrepresented by counsel and did not knowingly waive the right to counsel, is fundamentally unfair.'”  DeWolfe, 2013 WL 5377174, at *7 (quoting Rutherford, 296 Md. at 360) (emphasis added in DeWolfe).  The court continued: “it is the fact of incarceration, and not the label placed upon the proceeding, which requires the appointment of counsel for indigents.”  Id. (quoting Rutherford, 296 Md. at 360) (emphasis added in DeWolfe).  Thus, although Rutherford concerned the right to counsel in a civil contempt proceeding that led to a jail sentence, Judge Eldridge’s majority opinion applied its principle to an initial appearance, as it too frequently led to incarceration.

The three dissenters, led by Chief Judge Barbera, would have based the decision on the Supreme Court’s decision in County of Riverside v. McLaughlin, 500 U.S. 44 (1991), in which the Court held that a county would not violate the Fourth Amendment if it provided for probable cause hearings within 48 hours of a warrantless arrest.  Id. at 11 (Barbera, C.J., dissenting).  By analogy to what the Supreme Court called “‘a reasonable accommodation between legitimate competing concerns,'” id., quoting McLaughlin, 500 U.S. at 57-58, the dissenters presumably would have held that the State could satisfy Article 24 as long as it provided indigent defendants with counsel at a bail review hearing before a district judge within 48 hours of their arrest.  We will, however, never know whether that standard would have satisfied the federal constitution, as Judge Eldridge’s decision to base the majority opinion on state-law grounds will preclude any further appellate review.