Gen. 33] 33

1 The Public Defender may also be conce rnedabout its a bility to provide representation at masters hearings g iven its budgetary

constra ints. In a prior opinion, we

conclude d that if the Public D efende r is unabl e to represent a defendant because of a c onflict , and if fu nds are u navaila ble for a panel attorney, a defendant would be eligible for re presentation by anattorne y a ppointed by the court. 76 Opinions of the Attorney General 341 (1991). CHILD CUSTODY AND SUPPORT
P UBLI C D EFENDER

) M ASTERS

) P UBLIC D EFENDER R EQUIRED TO R EPRESENT I NDIGENTS B EFORE M ASTERS I N C ONTEMPT P ROCEEDINGS IF I NCARCERAT ION S OUGHT AS R EMEDY

November 24, 1998
The Honorable Robert C. Nalley Circ uit Co urt for C harle s Co unty Seventh Judi cial Dis tri ct
You have request ed our opini on whether the Public Defender is obliga ted to repres ent indi gent pers ons cit ed for cont empt in child s uppor t cases t

hat are referr ed to maste rs for he aring and recommended decisi on. You stat e thatthe Public Defender has a policy that pr ecludes r epresent ation f or these individuals at m aster’s hearings because onl y judges have the au thority to inc arcera te people, and an all eged contemnor does not ri sk incar cerat ion ata hearing be fore a m aster. 1
In our view, t

he Public D efender i s requi red to pr ovide repres entat ion to indi gent pers ons at hearings be fore mas ters in civ il con tem pt m atter s w hen inca rcer ation is so ugh t as a rem edy.
I The Right to Counsel in Civi l Contempt Matters
An indivi dual who fails to comp ly with a court order r equiri ng the payment

of chil d support may

be found in cont empt o f cou rt. Because the purpos e of

such a con temp t proce eding is to coerc e the indivi dual to com ply with the court or der, t he contempt pr oceedings34 [83 O p. Att’y

2 That reg ulation pr ovides: A. The Office of the Public Defender shall provi de representation

to a person cited for contempt for failure to pay c o urt-ordered

support payments under the following circumst ances: (1) Upon request by the Court or upon application by the person c ited; (2) If

it is determined t hat the person c ited is indigent in accordance with Article 27A, §§2(f) a n d 7(a) , (continued...) are civilrather

than crimin al in natu re. An individ ual fo und in contemptmay be i ncarcer ated unt il t he contemptis purge d – i.e

. , the individ ual m akes the pa yments r equire d by the c ourt. The Suprem e Cou rt has held that du e process req uire s th e appointment

of co unse l for ind igent d efen dants in certa in civil pro cee din gs th at m ay resu lt in im priso nm ent. See In re G ault , 387 U.S. 1, 36-37 (1 967) (civil juven ile delinquenc y proceeding). In light of Ga ultand similar cases, the C ourt of Appeals has hel d that an in di gen t d efe ndantina ci vi l c ont emp t proc eeding cannot be se nt enced to incarceration unles s he or she ha s been afforde d the right to co uns el. Rutherford v. Rutherford , 296 Md. 347, 363, 464 A.2d 228 , 237 ( 198 3); see also Md. Co nst ., Declarati on of Rights, Art. 24. In Rutherford , the Court of Appeals c atal oged the o v erwhelming majorit

y of cour ts throughout t

he country

that have reachedthe s am e co nclu sion

. 296 Md. at 358-60, 464 A.2d at 234- 35. This ri ght to couns el appl ies at every stage of acontempt pr oceeding. Redmond v. Redmond , 123 M d. A pp. 4 05, 718 A.2 d 668 (19 98). Under the Maryl and Public Defender Act, the P ub lic Defender has the primary dut y to provi de legalrepres entat ion for indigent defendan t s. Mary land Code, Art . 27A, §4(a) . That obligation extends to a variety of pro ce edings including those “wh ere possibl e incar cerat ion pursuant to a judi cial commitmentof indivi duals i n inst itutions of a publ ic or private nature may resul t”. Id. , §4(b). Represent atio n must be provi ded at al l st ages in t he pro ceeding unt il fin al dis pos ition of th e ca se. Id ., §4(d ). I n a regulation, the Office o f the P ublic D efen der h as reco gnize d its obligation to represent pe rsons cited fo r contem pt in child supp ort cases wh o fac e in carcera tion. COM AR 14.06.01.01. 2 ThatGen. 33] 35

2 (...continued) Annotated

Code of M aryland, and the person cited has no private coun se l who had previously re presented him in a divorce or pater

nity procee dings whose appear ance is still pending on the cited person’s behalf; and (3) That the person cited is ac tually f acing a prison term. B. In making the deter minationto represent

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

upon the O ffice o f the Pu blic Defend

er to ascertain, before the hearing , whether the: (1) Stat e’s Attorney will actual ly see k incarceration; or (2) Dep artmentof Social Services, or c ounse l prosecutingthe support case, or both, is seeking inc arceration. COMAR 14.06.01.01. regulation is silent on wh ether th e Pu blic D efen der w il l repr es ent such pe rsons before a ma ster. Under Maryland law, there is no quest ion that, in civ il contemptproc eedin gs in w hich a n in digen t pers on faces incarc erati on as a sanction for nonpayment of child su pp ort, the Pub lic Defe nder is required to provide re prese nta tion. T he on ly qu esti on is whethe r the Public D efende r is required to pro vid e repres entat ion in the portion of tho se procee dings that occ urs before a m aste r.
II The Role of Masters in Child Support Contempt Proceedings
A. Authorit

y of a Master
The functi on of masters in domesti c relations matter s emanates from two rules : Maryl and Rule 2 -54 1 go vern s the ap poin tmen t, powers, re ports, and procedures of circ uit cour t master s. Mary land Ru le 9-207 set s forth the proce dures for the ref erralof family

law ma tters to ma sters

. See also St ate v. Wiegmann , 350 Md. 585, 714 A.2d 841, 843-45 (199 8) (de tailing au thority of m asters in dom estic relati ons cas es). M asters a lso play an impo rtant role in cou rt-36 [83 O p. Att’y

3 The Circ

uit Court f

or Balti more City

has institu

ted a case management system for child support contempt proceedings. As part of this program, court

masters play a ke

y role in monitoring obligors who are delinquent

in payi ng c hi ld sup por t. If an obligor fails t

o make pa

yme nts, to report diligent efforts to obtain employ ment, to appear when summoned, or to carry

out other

obligatio ns related to a child support order, the maste

r may recommend ini tiat ion o f cont empt p roceed ings beforethe court, including potential incarc eration. Unde r this prog

ram, m asters are abl e to assist the cour t in handlin

g the hig h volume of

child support e nforce ment acti ons, while

those cases in

which inc arcer

ation is a potenti al remed

y a re handl ed by

circuit c ourt judges.

4 See Jones v. State, 351 Md. 264, 718 A.2d 222 (1998). sponsoredprograms t o manage a high volume of ch ild support enforc em ent c ase s. 3
The judges of

a circ uit cour

t mayappoint s tanding mast ers who serve at the p le asure of t he court and hear matt ers re ferred by the cour t. Rule 2-5 41(a)( 1), (3). A mas ter has autho rity genera lly “to r egulat e all proc eedin gs in th e hea ring,” in cludin g the a utho rity to issue subp oena s, adm inister oa ths, rule u pon th e ad missi bili ty of evidence, examine w i tnesses, conv ene, continu e, and adjou rn hearings, recommend contempt pr oceedings or other sancti ons, and make findings of fact and con clus ion s of law . Ru le 2- 541 (c). See gene rally 76 Opinions of the Attorney General

81, 85-86 (1991).
A contempt pr oceeding ar isi ng out of a chi ld support order n ormal lycommences when the cir cuit c ourt i ssues an or der, oft en referr ed to as a “sho w cau se order” 4 , ei ther on t he cour t’ s o wn initiative or at t

he behest of

an agg rieved party. Rule 15 -206(b),(c). Among other th ings, the show caus e cou rt o rd er mu st indica te whetherincarc erati on is bei ng sou ght as re me dy. Rule 15 -206(c)(1). If incarc erati on is sought , the order advi ses that the defendant has a right to counseland that t

he Public Defender

may pro vide c oun sel, if the pers on lacks money to hire an attorney. Rule 15 -206(c)(2)(C ).
If a defendant appears w ithout counsel i n a case i n which incarc erati on is sought , the court must ensure t

hat the alle ged contemnoris aware of his right t o counsel. The court must allow the defendanta reaso nable opp ortun ity to obtain c oun sel or a scertain that the defendant has w aive d c ou ns el k no w in gl y an d v ol un tar ily. Rule 15 -206(e).Gen. 33] 37

5 We understand that the Public De fender questions the basis for this procedureunder both the rules and the Constitution. However, the Court of Appeals has recognized that the rulesclearly a uthorize this procedure. SeeState v. Wiegmann , 350 Md. 585, 714 A .2d 841, 844 (1998). Si mi la rl y, in United States v. Raddat z , 447 U.S. 6 67 (1980) , the Supre me Courtheld that an analogous referra l procedure under the Feder al Mag istrates ’ Act met the requirements of the Due Process Claus e. Th e Supreme Court left open the q

uestio n whether a court could reject credibi lity

findings of a magistrate without seeing and hea ri ng the witnesses itself. Id

at 680 n.7. In many circuit

courts, such proceedings are t hen referr ed to a master as a matt er of course for hearing and recommendati on. 5 See Rul e 9-207(a)(1)(G). The master conducts a hearing and makes a recom men dation to the ci rcuit court, including a brief stat ement of the m aste r’s f

ind ing s an d a p rop ose d or der

. Rules 2-541( c)-( d); 9- 207(c). We und erstan d that, in some jurisdiction s, the circuit court itself hears t he case i f incar cerat ion is specifi ed as a pote ntialremedy in the show cause ord er. Wh ile th e r ul es gr an t m as ter s c on sid er ab le a ut ho rity to c onduct hearings and reco mm end dispo sitions, “masters are not judges, nor are theyjudici al offi cers. ” State v . Wiegmann , 350 Md. 585, 599, 714 A.2 d 84 1, 848 (199 8). In p articular , a ma ste r canno t is sue an orderto commence a contempt pr oceeding, cannothold a pers on in conte mp t, and has no power to or der the arrest or incarc erati on of a defend ant. Id . at 84 5-4 6.
B. Review of a Master’sRecom m endation
A par ty may con te st a mas te r’ s r eco mm endat ion before the circuit court subject to both procedural and substant ive limit ations. The rules establ ish a t im etabl e for the filing and consider ation of exceptions. Rules 9-207( d)-(g) ; 2-541( h), ( i). However, on the recommendationof a master that an indivi dual be foundin conte mp t, the court may

hold a hear ing and direc t the e ntry of an order “at any time .” Rule 9-207(f) (3). The court may also r ule o n excepti ons without a he aring, unless a pa rty makes a timely request fo r a hea ring . Ru le 2- 541 (i).
The circui t court ’s revi ew of the mas ter’s rec om men dation is largely limited to the rec ord. T he ex ceptio ns are to be dec ided on the record befor e the mast er unless a party can make a parti culari zed38 [83 O p. Att’y showing of the nee d to int roduce addi tionalevidence and the court determi nes that

such evidenc e should be considered . Rule 2-54 1(i). Even if the court det ermines t hat addi tionalevidence s hould be consider ed, it may

remand the matt er to t he master to h ear t hat evid enc e. Id. Although the ci rcui t court must make an independe nt revi ew of the record and e xercis e its own discretion in review ing a ma ster’s rec ommendation, the co urt mu st acco rd co nside rable d efere nce to the mas ter’s fin dings of fact . In par ticul ar, “f

irst -level ” facts – as opposed to “c on clu so ry” or “d ispositio nal” facts – must be accept ed by the c ircuit court

unless unsupported by the record or other wise clearly erro neo us. Domingues v. Johnson , 323 M d. 4 86, 491-94, 593 A.2d 1 133, 113 5-36 (19 91). Thus, mas te rs have a criti cal rol e in cont empt proceedi ngs broughtto en for ce c hild sup por t ord ers. W e next addr ess whether a hearin g con ducte d by a m aster in a civil contempt proceeding is a mat terin which the Publi c Defender is r equired t o provide representati on to indigent defendants.
III Representati on of Indigent Defe ndants Before A Master
We underst and tha t the P ublic D efen der h as de clined to provide repres entat ion at he arings before mast ers on the basis that only judges have t

he power to inc arcerate a defendant for contempt in a child support m atter. If the ri ght to couns el depended upon t he power of the pre siding offic er to inc arcera te, it wo uld atta ch on ly when a ma ster ’s rec ommendation for i ncarcer ation arri ves at t he circuit court for an ex ceptio ns he aring. H ow ever, in such cases , it is the hear ing before the maste r that lay s the factualpredicate for any subsequent

court order. In many ca ses, the chi ef benefit of counsel lay in cou nsel’s a bility to addu ce fa vora ble evid ence, t o highli ght defe cts in unfa vora ble evi dence, and gene rally t o assis t in t he developmentof the fact ual rec or d at the hear ing. Assi stance of counsel after

the evi dentiaryhearing may be to o little , too late. For this reaso n, the rig ht to counsel ar ticul ated i n Ga ult , Rutherford , and other cases is tied to the nature of the proc eeding, not the i dentit y of the pres iding off

icer at a particular sta ge of that proceedi ng.Gen. 33] 39

6 We understand that

some cour

ts employ masters t o help sep arate outfrom the high volu

me of support enforcement cases those that involve a gen uine thre at of inca rcer ation . For

exa mp le, the c ourt may

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

r any caseinvolving

possible incarceration back to the court for a denovo hearing . In s

uch a sy stem the c ourt does

not make use of the record before the master, much less accord it the deference implied by the “ clearly e

rroneous” standard. I

n our opinion, such a proceeding beforea master

would not im

plicate t he righ t to counsel

) or poss ible representation

by the Public Defende

r

) if the respondent is informed at the outset of a proceeding bef or e a master that he or she does not face incarceration

in thatproceeding

and if any late

r referral to the circuit court

(continued...) The Co urt of S pecia l Ap peals reached a s imil ar conc lusion in Reedv. Foley , 105 M d. A pp. 1 84, 6 59 A .2 d 325 (19 95). That decisi on involved t

wo separate c ases i n which indige nt de fen dants who had fail ed t o c om pl y with child su pport obligation s and w ere sentence d to imprisonm ent. In each case, defendants had appeared withoutcounsel at

a heari ng before a master, but were ass ist ed by counse l at later exceptions he arings in the circuit cou rt. The Co urt of Spe cial A ppea ls held that the ri ght to couns el had been vi olate d. Noting that a

c ircuit court assesses a master’s findin gs unde r a “clear lyerr o neou s” stan dard , the C ourt o f Sp ecial A ppea ls concludedtha t a n adverse finding by a master would pl ace a defendantin jeo par dy of inca rcer ation

. The Court anal ogized an excepti ons hearing t o an appeal, and held that “[d]enial of one’s right to counselat trial i s not cur ed by t he appearance of c ounsel on app eal”

. Reed v. Foley , 105 Md. App. at 196-97, 659 A.2d at 332.
The Court of Speci al Appeals in Reedconcluded th at the defendants were enti tled to counsel“at ever

y st age in the pro ces s.” 105 Md. App . at 19 7, 65 9 A .2d a t 33 2. See also Redmond v. Redmond , 123 Md. App. 405, 718 A.2d 668 (1998 ) . In s imil ar language, the Maryl and Public Defender Act requir es repr esentation by that office “at al l stages” of specified proceedings. Whe n incarc erati on is s ought in a c ivilcontempt pr oceeding, a heari ng before a master i s a cri tica l st age of such a proc eeding. A cc or di ng ly, both the ri ght to couns el and the ob li gation of the Publi c Defender to pr ov id e r ep re se nt ati on fo r in di ge nt s a pp ly.
If incar cera tion i s not sought as a remedy

in a cont empt proceedi ng, the co nstitutio nal ri ght to couns el is not impl icat ed. 640 [83 O p. Att’y

6 (...continued) does not rely upon the proc eedings before the master. Nor is the Public Defender obligat ed to provi de repres entat ion.
IV
Conclusion
In s um ma ry, i t is our o pinion that a d efen dant in a civil contemptproc eedin g to enforce a chi ld support order has a right

to counsel at a hearing b efore a master i f incar cerat ion is being sought as a r eme dy. If eligib le, such a defenda nt is entitled to representation b y the Public De fender. J. Joseph C urran, Jr. AttorneyGeneral Angela M. Eaves Assist ant Attorney General
Ro bert N . Mc Do nald Chief Counsel Opinions and Advic e

Editor’ s Note: Subsequentto thi s opini on, the Court of Appeals r evisedRu le 15-206 and revi sed and renumbere d Rule 9-207 as Rule 9-208.