Gen. 33] 33

1

 The Public Defender may also be concerned about its ability to

provide representation at masters hearings given its budgetary constraints.

In a prior opinion, we concluded that if the Public Defender is unable to

represent a defendant because of a conflict, and if funds are unavailable

for a panel attorney, a defendant would be eligible for representation by

an attorney appointed by the court. 76 Opinions of the Attorney General

341 (1991).

CHILD CUSTODY AND SUPPORT

PUBLIC DEFENDER ) MASTERS ) PUBLIC DEFENDER REQUIRED

TO REPRESENT INDIGENTS BEFORE MASTERS IN CONTEMPT

PROCEEDINGS IF INCARCERATION SOUGHT AS REMEDY

November 24, 1998

The Honorable Robert C. Nalley

Circuit Court for Charles County

Seventh Judicial District

You have requested our opinion whether the Public Defender

is obligated to represent indigent persons cited for contempt in child

support cases that are referred to masters for hearing and

recommended decision. You state that the Public Defender has a

policy that precludes representation for these individuals at master’s

hearings because only judges have the authority to incarcerate

people, and an alleged contemnor does not risk incarceration at a

hearing before a master.1 

In our view, the Public Defender is required to provide

representation to indigent persons at hearings before masters in civil

contempt matters when incarceration is sought as a remedy. 

I

The Right to Counsel in Civil Contempt Matters

An individual who fails to comply with a court order requiring

the payment of child support may be found in contempt of court.

Because the purpose of such a contempt proceeding is to coerce the

individual to comply with the court order, the contempt proceedings
34 [83 Op. Att’y

2 That regulation provides:

A. The Office of the Public Defender shall provide

representation to a person cited for contempt for failure to pay

court-ordered support payments under the following

circumstances:

 (1) Upon request by the Court or upon application

by the person cited;

 (2) If it is determined that the person cited is

indigent in accordance with Article 27A, §§2(f) and 7(a),

(continued...)

are civil rather than criminal in nature. An individual found in

contempt may be incarcerated until the contempt is purged – i.e., the

individual makes the payments required by the court.

The Supreme Court has held that due process requires the

appointment of counsel for indigent defendants in certain civil

proceedings that may result in imprisonment. See In re Gault, 387

U.S. 1, 36-37 (1967) (civil juvenile delinquency proceeding). In

light of Gault and similar cases, the Court of Appeals has held that

an indigent defendant in a civil contempt proceeding cannot be

sentenced to incarceration unless he or she has been afforded the

right to counsel. Rutherford v. Rutherford, 296 Md. 347, 363, 464

A.2d 228, 237 (1983); see also Md. Const., Declaration of Rights,

Art. 24. In Rutherford, the Court of Appeals cataloged the

overwhelming majority of courts throughout the country that have

reached the same conclusion. 296 Md. at 358-60, 464 A.2d at 234-

35. This right to counsel applies at every stage of a contempt

proceeding. Redmond v. Redmond, 123 Md. App. 405, 718 A.2d

668 (1998).

 Under the Maryland Public Defender Act, the Public

Defender has the primary duty to provide legal representation for

indigent defendants. Maryland Code, Art. 27A, §4(a). That

obligation extends to a variety of proceedings including those

“where possible incarceration pursuant to a judicial commitment of

individuals in institutions of a public or private nature may result”.

Id., §4(b). Representation must be provided at all stages in the

proceeding until final disposition of the case. Id., §4(d). In a

regulation, the Office of the Public Defender has recognized its

obligation to represent persons cited for contempt in child support

cases who face incarceration. COMAR 14.06.01.01.2

 That
Gen. 33] 35

2

 (...continued)

Annotated Code of Maryland, and the person cited has no

private counsel who had previously represented him in a

divorce or paternity proceedings whose appearance is still

pending on the cited person’s behalf; and

 (3) That the person cited is actually facing a prison

term.

B. In making the determination to represent a person

cited for contempt in non-support proceedings, it shall be

incumbent upon the Office of the Public Defender to

ascertain, before the hearing, whether the:

 (1) State’s Attorney will actually seek

incarceration; or 

 (2) Department of Social Services, or counsel

prosecuting the support case, or both, is seeking incarceration.

COMAR 14.06.01.01.

regulation is silent on whether the Public Defender will represent

such persons before a master.

Under Maryland law, there is no question that, in civil

contempt proceedings in which an indigent person faces

incarceration as a sanction for nonpayment of child support, the

Public Defender is required to provide representation. The only

question is whether the Public Defender is required to provide

representation in the portion of those proceedings that occurs before

a master. 

II

The Role of Masters in Child Support Contempt Proceedings

A. Authority of a Master

The function of masters in domestic relations matters emanates

from two rules: Maryland Rule 2-541 governs the appointment,

powers, reports, and procedures of circuit court masters. Maryland

Rule 9-207 sets forth the procedures for the referral of family law

matters to masters. See also State v. Wiegmann, 350 Md. 585, 714

A.2d 841, 843-45 (1998) (detailing authority of masters in domestic

relations cases). Masters also play an important role in court-
36 [83 Op. Att’y

3

 The Circuit Court for Baltimore City has instituted a case

management system for child support contempt proceedings. As part of

this program, court masters play a key role in monitoring obligors who are

delinquent in paying child support. If an obligor fails to make payments,

to report diligent efforts to obtain employment, to appear when

summoned, or to carry out other obligations related to a child support

order, the master may recommend initiation of contempt proceedings

before the court, including potential incarceration. Under this program,

masters are able to assist the court in handling the high volume of child

support enforcement actions, while those cases in which incarceration is

a potential remedy are handled by circuit court judges.

4

See Jones v. State, 351 Md. 264, 718 A.2d 222 (1998).

sponsored programs to manage a high volume of child support

enforcement cases. 3

The judges of a circuit court may appoint standing masters who

serve at the pleasure of the court and hear matters referred by the

court. Rule 2-541(a)(1), (3). A master has authority generally “to

regulate all proceedings in the hearing,” including the authority to

issue subpoenas, administer oaths, rule upon the admissibility of

evidence, examine witnesses, convene, continue, and adjourn

hearings, recommend contempt proceedings or other sanctions, and

make findings of fact and conclusions of law. Rule 2-541(c). See

generally 76 Opinions of the Attorney General 81, 85-86 (1991).

A contempt proceeding arising out of a child support order

normally commences when the circuit court issues an order, often

referred to as a “show cause order”4

, either on the court’s own

initiative or at the behest of an aggrieved party. Rule 15-206(b),(c).

Among other things, the show cause court order must indicate

whether incarceration is being sought as remedy. Rule 15-206(c)(1).

If incarceration is sought, the order advises that the defendant has a

right to counsel and that the Public Defender may provide counsel,

if the person lacks money to hire an attorney. Rule 15-206(c)(2)(C).

If a defendant appears without counsel in a case in which

incarceration is sought, the court must ensure that the alleged

contemnor is aware of his right to counsel. The court must allow the

defendant a reasonable opportunity to obtain counsel or ascertain

that the defendant has waived counsel knowingly and voluntarily.

Rule 15-206(e).
Gen. 33] 37

5

 We understand that the Public Defender questions the basis for this

procedure under both the rules and the Constitution. However, the Court

of Appeals has recognized that the rules clearly authorize this procedure.

See State v. Wiegmann, 350 Md. 585, 714 A.2d 841, 844 (1998).

Similarly, in United States v. Raddatz, 447 U.S. 667 (1980), the Supreme

Court held that an analogous referral procedure under the Federal

Magistrates’ Act met the requirements of the Due Process Clause. The

Supreme Court left open the question whether a court could reject

credibility findings of a magistrate without seeing and hearing the

witnesses itself. Id at 680 n.7.

In many circuit courts, such proceedings are then referred to a

master as a matter of course for hearing and recommendation.5

 See

Rule 9-207(a)(1)(G). The master conducts a hearing and makes a

recommendation to the circuit court, including a brief statement of

the master’s findings and a proposed order. Rules 2-541(c)-(d); 9-

207(c). We understand that, in some jurisdictions, the circuit court

itself hears the case if incarceration is specified as a potential remedy

in the show cause order.

While the rules grant masters considerable authority to conduct

hearings and recommend dispositions, “masters are not judges, nor

are they judicial officers.” State v. Wiegmann, 350 Md. 585, 599,

714 A.2d 841, 848 (1998). In particular, a master cannot issue an

order to commence a contempt proceeding, cannot hold a person in

contempt, and has no power to order the arrest or incarceration of a

defendant. Id. at 845-46. 

B. Review of a Master’s Recommendation

A party may contest a master’s recommendation before the

circuit court subject to both procedural and substantive limitations.

The rules establish a timetable for the filing and consideration of

exceptions. Rules 9-207(d)-(g); 2-541(h), (i). However, on the

recommendation of a master that an individual be found in contempt,

the court may hold a hearing and direct the entry of an order “at any

time.” Rule 9-207(f)(3). The court may also rule on exceptions

without a hearing, unless a party makes a timely request for a

hearing. Rule 2-541(i). 

The circuit court’s review of the master’s recommendation is

largely limited to the record. The exceptions are to be decided on

the record before the master unless a party can make a particularized
38 [83 Op. Att’y

showing of the need to introduce additional evidence and the court

determines that such evidence should be considered. Rule 2-541(i).

Even if the court determines that additional evidence should be

considered, it may remand the matter to the master to hear that

evidence. Id. 

Although the circuit court must make an independent review

of the record and exercise its own discretion in reviewing a master’s

recommendation, the court must accord considerable deference to

the master’s findings of fact. In particular, “first-level” facts – as

opposed to “conclusory” or “dispositional” facts – must be accepted

by the circuit court unless unsupported by the record or otherwise

clearly erroneous. Domingues v. Johnson, 323 Md. 486, 491-94, 593

A.2d 1133, 1135-36 (1991).

Thus, masters have a critical role in contempt proceedings

brought to enforce child support orders. We next address whether

a hearing conducted by a master in a civil contempt proceeding is a

matter in which the Public Defender is required to provide

representation to indigent defendants.

III

Representation of Indigent Defendants Before A Master

We understand that the Public Defender has declined to

provide representation at hearings before masters on the basis that

only judges have the power to incarcerate a defendant for contempt

in a child support matter. If the right to counsel depended upon the

power of the presiding officer to incarcerate, it would attach only

when a master’s recommendation for incarceration arrives at the

circuit court for an exceptions hearing. However, in such cases, it

is the hearing before the master that lays the factual predicate for any

subsequent court order. In many cases, the chief benefit of counsel

lay in counsel’s ability to adduce favorable evidence, to highlight

defects in unfavorable evidence, and generally to assist in the

development of the factual record at the hearing. Assistance of

counsel after the evidentiary hearing may be too little, too late. For

this reason, the right to counsel articulated in Gault, Rutherford, and

other cases is tied to the nature of the proceeding, not the identity of

the presiding officer at a particular stage of that proceeding.
Gen. 33] 39

6

 We understand that some courts employ masters to help separate

out from the high volume of support enforcement cases those that involve

a genuine threat of incarceration. For example, the court may routinely

refer contempt actions to a master with the direction or understanding that

the master will refer any case involving possible incarceration back to the

court for a de novo hearing. In such a system the court does not make use

of the record before the master, much less accord it the deference implied

by the “clearly erroneous” standard. In our opinion, such a proceeding

before a master would not implicate the right to counsel ) or possible

representation by the Public Defender ) if the respondent is informed at

the outset of a proceeding before a master that he or she does not face

incarceration in that proceeding and if any later referral to the circuit court

(continued...)

The Court of Special Appeals reached a similar conclusion in

Reed v. Foley, 105 Md. App. 184, 659 A.2d 325 (1995). That

decision involved two separate cases in which indigent defendants

who had failed to comply with child support obligations and were

sentenced to imprisonment. In each case, defendants had appeared

without counsel at a hearing before a master, but were assisted by

counsel at later exceptions hearings in the circuit court. The Court

of Special Appeals held that the right to counsel had been violated.

Noting that a circuit court assesses a master’s findings under a

“clearly erroneous” standard, the Court of Special Appeals

concluded that an adverse finding by a master would place a

defendant in jeopardy of incarceration. The Court analogized an

exceptions hearing to an appeal, and held that “[d]enial of one’s

right to counsel at trial is not cured by the appearance of counsel on

appeal”. Reed v. Foley, 105 Md. App. at 196-97, 659 A.2d at 332.

The Court of Special Appeals in Reed concluded that the

defendants were entitled to counsel “at every stage in the process.”

105 Md. App. at 197, 659 A.2d at 332. See also Redmond v.

Redmond, 123 Md. App. 405, 718 A.2d 668 (1998). In similar

language, the Maryland Public Defender Act requires representation

by that office “at all stages” of specified proceedings. When

incarceration is sought in a civil contempt proceeding, a hearing

before a master is a critical stage of such a proceeding. Accordingly,

both the right to counsel and the obligation of the Public Defender

to provide representation for indigents apply.

If incarceration is not sought as a remedy in a contempt

proceeding, the constitutional right to counsel is not implicated.6
40 [83 Op. Att’y

6

 (...continued)

does not rely upon the proceedings before the master.

Nor is the Public Defender obligated to provide representation.

IV

Conclusion

In summary, it is our opinion that a defendant in a civil

contempt proceeding to enforce a child support order has a right to

counsel at a hearing before a master if incarceration is being sought

as a remedy. If eligible, such a defendant is entitled to

representation by the Public Defender.

J. Joseph Curran, Jr.

Attorney General

Angela M. Eaves

Assistant Attorney General

Robert N. McDonald

Chief Counsel

 Opinions and Advice

Editor’s Note:

Subsequent to this opinion, the Court of Appeals revised Rule

15-206 and revised and renumbered Rule 9-207 as Rule 9-208.