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IN THE COURT OF APPEALS OF MARYLAND No. 13 September Term, 1998

STATE OF MARYLAND

v.

KEVIN JOSEPH WIEGMANN

Bell, C.J. Eldridge Rodowsky Chasanow Raker Wilner Cathell, JJ.

Opinion by Cathell, J. Dissenting opinion by Chasanow, J.

Filed: August 4, 1998

This case presents the issues of the authority of masters in domestic cases and the continued viability of the common law rule permitting individuals illegally arrested to resist such an arrest. We hold that under the Maryland Rules, masters have no authority to order an arrest pending an entry of a judicial order in accordance with the master's recommendations of contempt. Furthermore, we decline to abolish the common law rule of the right to resist an unlawful arrest because such an action is a task better left to legislative consideration. I. Facts The facts in this case are not in dispute. Kevin Joseph Wiegmann, respondent, appeared without counsel at a contempt hearing in the Circuit Court for Howard County before Master Elaine Patrick on September 21, 1995. The contempt hearing was being held in connection with respondent's failure to pay court-ordered child support. At the conclusion of the hearing, Master Patrick determined that respondent was in contempt. We shall set forth a portion of the redacted transcript in that hearing, as modified by Judge Hollander, writing for the Court of Special Appeals in its opinion below: [MASTER PATRICK]: Based on the evidence I've heard today, it is quite clear to me that the defendant is in contempt. **** So I am going to hold you in contempt. I'm going to sentence you to forty-five (45) days' incarceration. I'm going to set a purge figure of Thirty-Five Hundred Dollars ($ 3,500.00), Mr. Wiegmann. That means, if you

pay the thirty-five hundred dollars, you do not have to serve the time. That's the difference between civil and criminal contempt.[1] In light of your claim to live in Georgia, I am going to recommend that the incarceration be immediate from the courtroom, and that an immediate Order be entered. I'm going to enter a judgment for the arrears, which is Fourteen Thousand, Nine Hundred and Ninety-Three Dollars and Sixty-Five Cents ($ 14,993.65). Payments through the Department of Social Services, secured by a wage lien. Future service by first-class mail. Mr. Wiegmann: Your Honor? The Master: Yes, Mr. Wiegmann? Mr. Wiegmann: Ah, I want to, like to file my exceptions now. The Master: Mr. Wiegmann, you can file those prior to your exceptions. I'm going to recommend that an immediate order be entered, so we can -- Mr. Wiegmann: Also, a motion for stay of sentence pending the outcome of the exceptions hearing. And a request for filing fees and costs be paid by the State for my transcripts and other related fees, since I was not--, Public Defender's--. (To the Deputy) Hold on a second. Hold on a second. Get, get away from me until I'm done. The Master: Excuse me, Mr. Wiegmann. This is not up to you at this point. The Deputy: Put your hands behind your back. The Master: Cooperate with the deputies, Mr. Wiegmann. Wiegmann v. State, 118 Md. App. 317, 322-23, 702 A.2d 928, 931 (1997).

A master's power is limited to making recommendations to a judge that a party be found in contempt. We know of no authority, under the circumstances of this case, for a master who is not a judicial officer to sentence contemptors, set purge amounts, and order law enforcement officers to take people into custody. Moreover, we know of no authority for a master to hold herself out as a judge. -2-

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At that point, a melee ensued. One of the deputies on duty in the courtroom testified it appeared respondent was going to strike the other deputy, so he grabbed respondent's arm. Respondent struck that deputy in the jaw. Respondent then attempted to run out of the courtroom, but the two deputies grabbed him and all three fell down. Fearful that respondent was going to grab for one of their guns, one of the deputies yelled to Master Patrick to hit the panic alarm button and then sprayed respondent in the face with pepper spray. Respondent finally was handcuffed and taken into custody. As a result of the courtroom brawl, respondent was charged with resisting arrest and assault and battery. He was acquitted by a jury in the Circuit Court for Howard County of the resisting arrest charge, but convicted of battery. The trial court sentenced respondent to ninety days of incarceration, with all but ten days suspended, and fifteen months of probation. Over the dissent of Chief Judge Murphy, the Court of Special Appeals vacated respondent's conviction and remanded the case to the circuit court. In her excellently written and thorough opinion, Judge Hollander held that respondent's arrest was illegal because masters have no implicit or express authority to order arrests, that respondent's warrantless arrest was not a valid arrest pursuant to a flawed warrant issued by a judicial officer, and that the circuit court erred in refusing to instruct the jury as to the conditions under which one is entitled to resist an arrest. We granted the State's petition for writ of certiorari to consider the important issues presented by this case. Petitioner presents the following questions for our review:
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1. Is a defendant who resists an arrest in a courtroom pursuant to a master's order precluded from arguing that he was entitled to resist the arrest? 2. Should this Court abolish the common law right to resist an illegal warrantless arrest? We shall affirm the Court of Special Appeals. II. Discussion A. Authority of Masters As we noted, Judge Hollander wrote an excellent opinion for the Court of Special Appeals with regards to the authority of masters. The opinion was thoroughly researched and defined clearly the law in Maryland. In the interest of conserving judicial resources, we see no point in rewriting or paraphrasing that part of the opinion of the Court of Special Appeals on this issue when we would reach the same results for essentially the same reasons. Accordingly, we shall adopt portions of the opinion of the Court of Special Appeals dealing with the authority of masters as restated verbatim, infra.2 We shall set forth additional points as necessary following our recital of the relevant portions of the opinion in Wiegmann, 118 Md. App. at 334-44, 702 A.2d at 936-41 (footnotes omitted):3 We recently observed that "the authority of the master[ ] is limited by the Maryland Rules and the statutes providing for the use of masters in domestic relations cases." Wise-Jones v. Jones, 117 Md. App. 489, 499, 700
We shall, however, omit some of the citations proffered in Judge Hollander's exhaustive treatment of this issue. For the sake of simplifying this portion of the opinion, we shall restate the opinion as it appears in the reported case below. In doing so, we note that "appellee" (the State) is the petitioner in the case before this Court and that the appellant in the Court of Special Appeals, Kevin Joseph Wiegmann, is the respondent before this Court. -43 2

A.2d 852 (1997). This suggests that the master's authority must derive either from a statute or a rule. We look to Maryland Rules 9-207 and 2-541(c), which govern the powers of a domestic master. Pursuant to Rule 9-207(a)(1), matters of contempt for noncompliance are routinely referred by the clerk to a master "as of course," unless the circuit court directs otherwise. Rule 9-207(a)(1) specifically authorizes a master to preside at a hearing regarding contempt for noncompliance with an order relating to the payment of alimony or child support. Further, Maryland Rule 9-207(b) provides: "The master shall have the powers provided in Rule 2-541(c) and shall conduct the hearing as provided in Rule 2-541(d). In turn, Maryland Rule 2-541(c), states, in part, that a master has the power to regulate all proceedings in the hearing, including the powers to: (1) Direct the issuance of a subpoena to compel the attendance of witnesses and the production of documents or other tangible things; Administer oaths to witnesses; Rule upon the admissibility of evidence; Examine witnesses; Convene, continue, and adjourn the hearing, as required; Recommend contempt proceedings or other sanctions to the court; and Make findings of fact and conclusions of law.

(2) (3) (4) (5) (6)

(7)

(Emphasis added). It is patently clear that the rules do not grant express power to a domestic master to hold a litigant against his will after a non-support hearing, although masters are authorized to conduct evidentiary hearings and to make findings of fact and recommendations to the circuit court. Indeed, even Master Patrick agreed that she lacked express authority to arrest appellant. The State is of the view, however, that the rules do not contain an exhaustive list of the master's powers. In addition to the explicit powers conferred by Rule 2-541(c), the State asserts that the rule implicitly includes the power to detain,
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because such power is inherent in the authority conferred upon a master to "regulate all proceedings" at a hearing. It thus posits that the master had implied authority, under Maryland Rule 2-541, to detain appellant for a reasonable period, pending judicial review of the master's recommendations. Therefore, we must determine if the phrase "regulate all proceedings," as used in Rule 2-541(c), confers upon the master the power to hold someone in custody pending judicial review of a master's recommendation for immediate incarceration. As we set about to interpret the rule, we must apply the same standards of construction that apply to the interpretation of a statute. . . . If the rule is ambiguous, we may look to other sources in order to determine the Court of Appeals's intent. Long, 343 Md. at 667, 684 A.2d 445; In re Victor B., 336 Md. at 94, 646 A.2d 1012; Leppo v. State Highway Admin., 330 Md. 416, 422, 624 A.2d 539 (1993). Even if the language of a rule is clear, we may consider extrinsic material that "`fairly bears on the fundamental issue'" of the purpose or goal of the rule, Stach, 83 Md. App. at 42, 573 A.2d 409 (quoting Kaczorowski v. Mayor of Baltimore, 309 Md. 505, 515, 525 A.2d 628 (1987)). This is because "[o]ur mission is to give the rule a reasonable interpretation in tune with logic and common sense." In re Victor B., 336 Md. at 94, 646 A.2d 1012. Therefore, we may consider the history of a particular rule as an aid to determining the court's intent. Long, 343 Md. at 668, 684 A.2d 445; Stach, 83 Md. App. at 42, 573 A.2d 409. In construing the rule here, we are mindful of the principle that the expression of one thing is generally the exclusion of another. Long, 343 Md. at 666, 684 A.2d 445; Leppo, 330 Md. at 423, 624 A.2d 539. On the other hand, the use of the word "including" suggests that the seven enumerated powers are not exclusive. "Ordinarily, the word `including' means comprising by illustration and not by way of limitation." Group Health Ass'n v. Blumenthal, 295 Md. 104, 111, 453 A.2d 1198 (1983); see also Carroll County v. Raymond I. Richardson Found., Inc., 71 Md. App. 434, 441, 526 A.2d 81 (1987). Nevertheless, the enumerated powers in Rule 2-541(c) are procedural, not substantive. To be sure, the power to arrest is substantive in nature. We conclude that the rule does not implicitly confer upon the master the power to detain appellant pending judicial review of a master's recommendation. The construction of the rule urged by the State would engraft upon the rule a meaning not evident from the plain text and would be
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wholly inconsistent with the advisory, clerical, and ministerial functions that masters have traditionally performed. Construing the nature of the master's power under the rule as procedural also comports with the traditional functions of the master. We turn to examine the role of a master and his or her corresponding powers. A master is not a judicial officer, and the Maryland Constitution does not vest a master with any judicial powers. In re Anderson, 272 Md. 85, 106, 321 A.2d 516 (1974), cert. denied, 421 U.S. 1000, 95 S.Ct. 2399, 44 L.Ed.2d 667 (1975); see also Swisher v. Brady, 438 U.S. 204, 209, 98 S.Ct. 2699, 2703, 57 L.Ed.2d 705 (1978) ("masters [in Maryland] are entrusted with none of the judicial power of the State"); Lemley v. Lemley, 102 Md.App. 266, 277, 649 A.2d 1119 (1994) ("[T]he master is not a judge and is not vested with any part of the State's judicial power."); Sensabaugh v. Gorday, 90 Md.App. 379, 390, 600 A.2d 1204 (1992) ("Once a master has recommended a contempt proceeding it is necessary for the court to issue the show cause order because the master does not have the power to issue such orders."). "Simply put, the Master is a ministerial and not a judicial officer." Levitt v. Levitt, 79 Md. App. 394, 399, 556 A.2d 1162, cert. denied, 316 Md. 549, 560 A.2d 1118 (1989). In Nnoli v. Nnoli, 101 Md. App. 243, 646 A.2d 1021 (1994), we observed that a master has historically been an "adviser of the court as to matters of jurisdiction, parties, pleading, proof and in other respects where he may be of assistance to the court. . . . The duties of the master are of an advisory character only. He decides nothing, but merely reports to the court the result of his examination of the proceedings, with a suggestion as to the propriety of the court passing a decree." Id. at 261 n. 5, 646 A.2d 1021 (quoting Edgar G. Miller, Jr. Equity Procedure

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