BABY AND THE BATHWATER:
THE PERILS OF HOLDING JUVENILES IN CONTEMPT

RICHARD SEITZ
UNIVERSITY OF BALTIMORE SCHOOL OF LAW
FALL 2008

You can learn many things from children. How much patience you have, for instance. - Franklin P. Jones

THE CASE OF A.S.

In December of 2007, A.S., a 17 year old female, was subpoenaed to testify as a state’s witness in a case against a man accused of assaulting another woman. When she failed to respond to the subpoena and did not appear at trial[1], St. Mary’s Circuit Court Judge C. Clarke Raley issued an order for her arrest. She was picked up by patrol officers on New Year’s Eve, and appeared before a different judge, who subsequently released her on her own recognizance. On January 9, 2008, Judge Raley issued another order, this time finding her in direct criminal contempt for her previous failure to appear as a witness, and summarily sentenced her to 30 days in the St. Mary’s County Detention Facility, the county’s general population prison for adult criminal offenders. A.S. was jailed in the detention center among the adult population; public defenders appealed to the judge on her behalf, claiming that her imprisonment was in violation of the Juvenile Justice and Delinquency Prevention Act[2]. Judge Raley was not compelled by the argument, stating that she A.S. “was not best served by guidance, treatment or rehabilitation [in a juvenile facility], but by a brief exposure to the St. Mary’s County Detention Center, where she would have the opportunity [to] learn the consequences of disobeying a clear and direct order of this court.”[3] Ultimately, Judge Raley would relent., however, and ultimately ordered the girl moved to a juvenile facility for other reasons. Keith L. Mackall (a man in his forties) had been charged with rape in the second degree after A.S. gave birth to a baby; paternity tests indicated the baby was fathered by Mackall. A.S. was 14 when the baby was conceived.[4] The State planned on calling A.S. in the rape trial against Mackall. Upon learning that A.S. was housed in the same facility as her alleged rapist, who was awaiting trial, Raley ordered A.S. moved into a juvenile facility, but took the opportunity to dismiss the pPublic dDefender’s argument. He said, “The only reason the court is granting the juvenile’s motion… is because that, given the circumstances, it would be unjust to order the juvenile to be detained in the same building as her alleged rapist.”[5] Judge Raley ordered her transferred to a juvenile facility, specifically the Thomas J.S. Waxter Children’s Center (“Waxter”). The Department of Juvenile Services (“DJS”) opposed housing her there because, under Maryland law, a juvenile who has not been adjudicated delinquent, or is not pending an adjudicatory hearing on charges of delinquent acts, may not be held in a secure detention facility.[6] The Attorney General’s Office, representing DJS, argued that she was properly housed at St. Mary’s County Detention Facility, because she was charged as an adult and sentenced summarily. After a hearing on the issue, Judge Raley commuted A.S.’s sentence, and she was released after serving 12 days. In the end, it seemed there was no proper place to lockup A.S. which would comply with both Maryland and Federal Law. A.S.’s case, while unique, illustrates but one of the problems that exist when holding juveniles in contempt. Is it worth superseding the public policy mandate of treating and rehabilitating youth over a trivial matter to to protect the honor and dignity of the court? And is the efficient administration of justice so paramount that it is worth holding juveniles, not otherwise delinquent, in contempt, and locking them in prison with hardened criminals? Before answering these questions, a review of the history and purposes of the juvenile justice system, as it developed in Maryland, is appropriate. Then we’ll examine the common law, case law, and statutory regulations on contempt in general, before finally considering the terrible conflict that arises when contempt powers, which exist to punish and compel, are exercised upon juveniles- who are supposed to be rehabilitated and protected by the justice system.

THE JUVENILE JUSTICE SYSTEM IN MARYLAND The early 1800s witnessed what has been dubbed the Reform Movement relating to juvenile justice, and corrections in gGeneral. The first House of Refuge, a juvenile facility for delinquents, abused, neglected and mentally-ill children, was established in New York between 1819 and 1823 at the Auburn State Prison. New York later established a similar system at Ossining (“Sing-Sing.”)[7] Pennsylvania followed shortly thereafter, establishing these facilities in 1826 in Pittsburgh and 1829 in Philadelphia. The earliest legislative efforts to establish a system charged with the care of orphaned, homeless and delinquent children in Maryland traces back to 1830, when the state legislature passed “An Act to Establish a House of Refuge for Juvenile Delinquents.”[8] The ultimate product of the legislation was The House of Refuge, which exists today as the Charles H. Hickey, Jr. School.[9] Besides authorizing a physical plant, the Act laid the foundation for a separate juvenile court, and did so in language which resonates in the statute to this day. The Act provided: “That all minors of either sex who shall hereafter be arrested and proved to have been begging in or about the streets of the city of Baltimore, or who shall be duly convicted on any criminal charge in Baltimore county or city court… or[?] who shall be convicted in any county court of this state of any offence which under the existing laws would be punished by imprisonment in the penitentiary… may be committed to the said House of Refuge, and placed under the care and discipline of the managers thereof.”[10]

The legislation was passed in response to the popular, albeit novel, notion that taxpayers could save money by preventing children from embarking in a life of crime, and could do so by providing a separate place for education and vocational training for delinquents that was separate from adult convicts.[11] The Warden of Penitentiaries in his annual report of 1849 numbered the youths in his custody at 21. In the report he asked regarding the youths, a majority of whom where imprisoned for “trivial offences” [sic], “would not fine or the alternative of confinement in a house of correction, as is the case in some of our sister states, be a more appropriate way of disposing of the perpetrators of such offences, than imprisonment in the Penitentiary?”[12] Although privately incorporated when it was eventually completed in 1855, the General Assembly appropriated $10,000 dollars a year for five years to support the House of Refuge, finding it a “grand and noble institution.”[13] During this time, in addition to finding more effective ways to house and care for troubled children, the juvenile court system was also beginning to take shape in Maryland. The General Assembly created a special magistrate position for Baltimore in 1902. This magistrate was empowered to commit children to a reformatory in lieu of prison while awaiting trial, and created a system of probation for minors.[14] Each county received a mandate to hire a magistrate as well, but that order did not come until 1916.[15] Even after the mandate, the counties were slow to conform. By 1940, only 8 counties had complied. The juvenile court system in Maryland as we know it today took its recognizable shape in 1943, when the General Assembly created a new court with exclusive original jurisdiction over all individuals under the age of eighteen.[16] These courts existed with the purpose of rehabilitating youth, and preventing them from starting off on a life of crime.[17] While many of the rules and procedures in these new courts were the same, the very nature of dealing with troubled youths often proved a challenge. As the Court of Appeals once chided a hot-tempered judge, “…judges exercising juvenile jurisdiction [are to] bear in mind that juvenile proceedings are of a special nature designed to meet the problems peculiar to the adolescent.”[18] While groups such as the Charity Organization Society in the 19th century, and later the League of Women Voters, were mildly successful in their efforts to obtain these rehabilitative (as opposed to punitive) services for Maryland’s disenfranchised children, the quality of care they received from the “system” was deplorable. By 1894, the managers and officers of the House of Refuge admitted in their Annual Report: “The plumbing and closet in the yards are primitive, unsanitary, and obsolete, which condition is a menace to the health of the boys and a deterrent to their higher moral development…The supply of water is also inadequate... In the event of fire in the institution, the scarcity of water may prove serious.”[19]

Further, at this time, the mentally handicapped, orphaned, abused and delinquent were housed together, often receiving inadequate mental and medical care, and predictably inhibiting the growth and rehabilitation of the delinquent but otherwise healthy youths.[20] Numerous other “houses of alms” and charitable reformatories opened in the decades following the creation of the House of Refuge. In 1922, four of the larger reformatory schools were put under the supervision of the State Department of Education, and State control of juvenile services began.[21] During this time, in addition to finding more effective ways to house and care for troubled children, the juvenile court system was also beginning to take shape in Maryland. The General Assembly created a special magistrate position for Baltimore in 1902. This magistrate was empowered to commit children to a reformatory in lieu of prison while awaiting trial, and created a system of probation for minors.[22] Each county received a mandate to hire a magistrate as well, but that order did not come until 1916.[23] Even after the mandate, the counties were slow to conform. By 1940, only 8 counties had complied. The juvenile court system in Maryland as we know it today took its recognizable shape in 1943, when the General Assembly created a new court with exclusive original jurisdiction over all individuals under the age of eighteen.[24] These courts existed with the purpose of rehabilitating youth, and preventing them from starting off on a life of crime.[25] While many of the rules and procedures in these new courts were the same as adult courts, the very nature of dealing with troubled youths often proved a challenge. As the Court of Appeals once chided a hot-tempered judge, “…judges exercising juvenile jurisdiction [are to] bear in mind that juvenile proceedings are of a special nature designed to meet the problems peculiar to the adolescent.”[26]

Although the State was now directly responsible for the care of the youths in these four institutions, most of the care was still provided by private or religious institutions. The State, paying for this “care” of the children both in the public and private institutions, had not instituted a uniform standard of care nor a system of supervision of the private facilities, with the exception of the self-reporting documents, such as the one from the House of Refuge. The General Assembly changed this in 1943, when the State Department of Public Welfare (“DPW”) was charged with supervision of all facilities in the state that were responsible for “the care, custody or control of dependent, delinquent, abandoned or neglected children.”[27] These facilities would stay under their supervision until the creation of the State Department of Juvenile Services (“DJS”) in 1966.[28] The Department of Juvenile Services as it exists today has been subject to immense political scrutiny. The changes in its name over the years reflect the ebb and tide flow of public sentiment regarding youthful offenders. A mere 2 years after its creation, DJS was placed under the supervision of the Department of Health and Mental Hygiene (“DHMH”) and renamed as the Juvenile Services Administration[29]. The Juvenile Services Agency, as it was later renamed and recreated, was formed as an independent agency separate of DHMH in 1987.[30] It was reorganized yet again in 1989, this time as a principal department of the State Government as the Department of Juvenile Services; the Secretary of the Department remains a member of the Governors cabinet to this day.[31] However, perhaps partly in reaction to the moral panic in the early 1990s over street gangs and violent youthful offenders, it was renamed to the Department of Juvenile Justice.[32] Its powers and authorities remained the same; there was no more or less “justice” being done than before. The name, “Department of Juvenile Services” was restored in 2003.[33] In the most recent name change, the legislature reported, “The theme of the Governor’s juvenile services reform efforts is ‘A Child First Approach.’ The focus of the endeavor is on ‘wraparound’ services for children who come in contact with the system, which explains the proposed change in the department’s title.”[34] Although probably not the last nomenclature, “DJS” as a name is consistent with the express intent of the legislature in creating the Department: “to provide for the care, protection, and wholesome mental and physical development of children…; and to provide a program of treatment, training, and rehabilitation consistent with the child’s best interests and the protection of the public interest.”[35]

CONTEMPT POWERS

As much a favorite of some real judges as it is of judges on screen and television, the power to hold an individual in contempt for any litany of actions is as old as courts themselves. The ability to hold an individual in contempt has long been recognized as an inherent and necessary power, available to all courts.[36] While a court may exercise this power to prevent outbursts, compel decorum in its presence, and demand respect from those before it, it is also often used as a tool to compel compliance from those who have been issued orders by the court.[37] Thus, criminal and civil contempt are distinguished as separate varieties; criminal being punitive in nature, and civil existing to compel compliance with a lawful court order. [38] Moreover, each type of contempt may both be either direct or indirect.[39] A direct contempt is an act which occurs in the presence of the judge, interferes with the administration of the court, and “where immediate punishment is essential to prevent demoralization of the court's authority before the public.”[40].” An indirect contempt, sometimes referred to as constructive contempt, is an act that occurs outside of the courtroom, such as disobeying a court order.[41] Indirect contempt may not be summarily punished; a hearing is required on the evidence because the judge did not personally witness the act in court, and the alleged contemnor may present facts or evidence to refute the charge of contempt.[42] Regardless of which name (criminal or civil) a contemptuous act is given at the time a judge holds an individual in contempt, it is the purpose of the order, and not the name, that distinguishes it one from the other.[43] Before we can approach the question of whether judges holding juveniles in contempt is consistent with the goals of the juvenile justice system, a brief examination of each type of contempt is necessary to understand the purposes and implications of each.
CRIMINAL CONTEMPT The main purpose of criminal contempt is to punish the acts of an individual, and to vindicate the public authority of the court. Punishing the contemnor is always done so to impugn past misconduct; it is not intended to compel future compliance, or to remedy the indignity.[44] Only an act which is intentional may be punished for by criminal contempt.[45] Certainly some of the more colorful moments in the courtroom experience arise out of the behavior of contemnors. A criminal defendant calling a judge a “hatchetman for the State” and a “dirty sonofabitch” makes for an interesting trial; it also makes for a summary finding of contempt.[46] A pro se defendant found himself convicted of criminal contempt when in a written motion to replace the presiding judge, he called the court a “Ku Klux Klan, Gestapo Setup, Jim Crow Justice… Crime Syndicate.”[47] An attorney who called opposing counsel “an idiot” during an objection, told him to “go kiss my ass” in conferences at the bench, and expressed his exasperation by muttering “Aw, shit” in front of the judge after losing an objection was found to be contemptuous because the acts did not further the interests of the client, and were only intended to disrupt the proceedings before the bench, and to insult an officer of the court.[48] There are numerous other acts which amount to criminal contempt, although not as humorous as the previously mentioned ones. The shared similarity in each is that the acts all impede the administration of justice and insult the dignity of the court, though with less hilarious implications. For example, refusal to testify before a grand jury amounts to criminal contempt.[49] When the 5th Amendment Right to avoid self-incrimination has not been invoked or when immunity has been offered, it is generally contemptuous to refuse to testify when subpoenaed.[50] Even attorneys are not immune from the contempt powers of a court. Besides the foul-mouthed barrister mentioned above, a defense attorney who called a jury’s verdict of guilty “ridiculous” in open court was found in contempt.[51] Further, failure of an attorney to appear in court when scheduled is contemptuous behavior.[52] All of these are meant to punish the behavior that has occurred; there is no remedial intent. Civil contempt, however, exists to compel the contemnor to perform a specific act.
CIVIL CONTEMPT Civil contempt is easily distinguishable from criminal contempt, in theory. The failure of a party to obey a court order, when the order has been issued for the purpose of benefiting another party, is grounds for a finding of civil contempt.[53] Further, unlike criminal contempt which aims only to punish, civil contempt’s purpose is to compel the party to perform an affirmative act previously ordered by the court.[54] The purpose is remedial, and does not aim to vindicate the authority of the court, or to punish the noncompliance.[55] Unlike criminal contempt, there is no intent requisite for civil contempt.[56] Also distinguishing civil from criminal contempt is the fact that civil contempt is conditional and terminable if the contemnor purges himself of the contempt by performing the act ordered by the court.[57] A criminal contempt charge carries a sentence, with no ability to purge the contempt. Nonpayment of child support, failure to satisfy a judgment, or violating or failing to perform any lawful order of a court is grounds a finding of civil contempt, when the goal of such contempt is to force the contemnor to comply.
PUT IT IN WRITING: STATUTORY REGULATION OF CONTEMPT POWERS Nearly every appellate case on contempt seems to take the opportunity to remind certain unnamed law-making bodies that the power to hold someone in contempt is “inherent and necessary” and that the power exists with or without statutory authority.[58] The Federal Rules of Criminal Procedure “allow” a judge to punish, summarily, a criminal contempt committed in the presence of the judge.[59] Further, Rule 42 lays out the procedure for prosecution of indirect contempts committed not within the view of a judge. Despite the codification of contempt rules, the Supreme Court handily disposed of the notion that such statutory authority is necessary, stating that “[Rule 42] is no innovation. It simply makes ‘more explicit’ the long-settled usages of law governing the procedure to be followed in contempt proceedings.”[60] Likewise, Maryland cCourts have responded incredulously at the notion that their contempt power has been granted by the General Assembly. “Contempt is an offense at common law against the court as an organ of public justice; ...the offense was not created by the Act of 1853, and… the right to punish for contempts by summary conviction is inherent in all courts of justice and is essential for their protection and existence.”[61]

Further, those in favor of the liberal use of contempt powers to regulate judicial proceedings in Maryland rely heavily on the Maryland Constitution. Article 8 states, “That the Legislative, Executive, and Judicial powers of Government ought to be forever separate and distinct from each other; and no person exercising the functions of one of the Departments shall assume or discharge the duties of any other.” However, as a matter of practice, it is impossible for one branch to be entirely “hands off” from the others. The legislature, in propounding rules of court and procedure for example, encroaches to a certain extent on the cCourts’ practice and methods for the administration of justice, but not its powers or duties. The courts have said of this type of guidance, that a “sensible degree of elasticity” is necessary in evaluatingapplying the separation of powers doctrine in state government.[62] Courts and legislatures, its seems, have reached a similar understanding regarding contempt. The presumption that when contempts are committed in the presence of a judge they may be handled summarily has been accepted by both federal and Maryland legislators.[63] However, when criminal contempt is constructive, occurring out of court, the protections afforded to a criminal defendant in any other prosecution are likewise extended to criminal contemnors.[64] Though the right to grand-jury proceedings or a criminal information filing do not apply, the principles of double jeopardy, the right to counsel,[65] protection from self-incrimination, and the “reasonable doubt” standard of proof are available to the alleged contemnor.[66] In sum, though the procedures of contempt proceedings are spelled out in statutes, the courts and the legislative bodies seem to have reached an understanding that the codification is merely an enshrinement of long-standing practice; there is little argument that, absent a Constitutional prohibition to the contrary,[67] contempt powers may not be destroyed by a lawmaker.
JUVENILE COURTS AND CONTMEPT CONTEMPT – TERRIBLE TOGETHER What happens when judges, sitting as a juvenile courts, are incensed and outraged by the behavior of a juvenile? If a juvenile fails to follow a lawful order of the court, is contempt an appropriate method of compelling compliance?[68] Or if an unruly child tells a judge just exactly where he can stick the order requiring school attendance, is criminal contempt necessary to teach him “the consequences of disobeying a clear and direct order of this court,” as in the case of A.S.? These are a few of the questions that must be dealt with before forming a policy or proposing legislation on the issue.
CONTEMPT AS A MEANS TO COMPEL JUVENILES TO COMPLY WITH COURT ORDERS

A survey of the appellate jurisprudence dealing with the fateful intersection of juveniles and contempt reveals few cases; of these, however, they almost exclusively examine the legality of holding juveniles in civil contempt for ignoring orders of the juvenile courts. Consider Ann M.,[69] who was ordered by the Circuit Court for Queen Anne’s County, sitting as a juvenile court, to attend school regularly.[70] During the proceedings, however, it was discovered that the fifteen year-old girl was pregnant. After hearings on the matter, the court found her to be a “child in need of supervision” (“CINS”)[71] and placed her in foster care.[72] Additionally, the court ordered her to attend school regularly as required by law.[73] Upon discovering her continued truancy, Judge George B. Rasin[74] found her in constructive indirect criminal contempt for disobeying the order of the juvenile judge. After the statutorily required hearing on the matter, Judge Rasin found her guilty, finding that Ann had “willfully disobeyed an order of this Court given to try to get [her] as much education as [she could] to be better able to take [her] place in life.” He sentenced her to 30 days incarceration under the custody of the county Sheriff. On appeal, however, the Court of Appeals reversed the judgment. While the Court, once again, took the opportunity to acknowledge the inherent power of the juvenile court to hold a juvenile contempt, it cautioned the courts to use the power with restraint, saying, “The exercise of that authority is necessarily tempered by the prevailing philosophy that a child who commits a criminal act should not be stigmatized with a criminal record or otherwise treated as a criminal offender.” The court reversed the contempt ruling because there were clearly less restrictive alternatives that could accomplish the court’s purpose.[75] Further, the court opined: …the sanction imposed was plainly inconsistent with the rationale undergirding these statutory imperatives in the treatment of juveniles. In this regard, we have reminded judges exercising juvenile jurisdiction to bear in mind that juvenile proceedings are of a special nature designed to meet problems peculiar to the adolescent; and that the juvenile law has as its underlying concept the protection and rehabilitation of juveniles, rather than the imposition of punitive sanctions.[76]

This language in the appellate decision demonstrates a definitive understanding of the purposes of the juvenile system. Although America has never truly embraced the notion that “it takes a village to raise a child”,[77] lawmakers and criminologists have long understood the particular detriment that society as a whole absorbs when a “kid goes bad.” Although Chief Judge Murphy does not explicitly state it in his opinion regarding Ann M., there is an implication that a certain level of insolence is inevitable in dealing with juveniles, and that the Courts must be slow to anger or to be insulted. The “protection and rehabilitation” aimed for by the juvenile system are paramount, based on this case, to the potential threat of indignity against the court by the youth. The focus of the Court in Ann M. on using the least restrictive means to achieve the court’s goals indicates that the contempt could have been permissible if it was civil. Because the contempt was expressly punitive, this “least restrictive” analysis was appropriate; the punishment may or may not have compelled her to attend school, whereas a civil contempt, in which the juvenile would have been held until she complied, would most likely achieve the desired result. That is not to say, however, that criminal contempt is never permissible when a juvenile behaves outrageously in court. The courts have allowed, as was the case with A.S, for criminal contempt charges against minors who fail to comply with orders of a Circuit Court.
CRIMINAL CONTEMPT AGAINST JUVENILES NOT A PARTY TO A PROCEEDING A.S., as we may recall, was not a party to the criminal proceedings in which her participation (or lack thereof) resulted in her contempt charge. A case of remarkable similarity, and similarly unjust results, originated out of Judge Rasin’s courtroom. In Thomas v. State,[78] 21 Md.App. 572, the Court of Special Appeals reviewed a contempt sentence against Calvin Thomas, who was fifteen years old at the time of the contempt. Thomas appeared in the gallery at the trial of a friend who was charged with the theft of a watch. It was Thomas’ intention to testify that the watch was his, and not stolen as alleged by prosecutors. He began waiving his arms to attract the attention of the judge and attorneys. Although he was eventually allowed to testify, his disruption coupled with his “rude, discourteous, disrespectful, disruptive, defiant and irascible” behavior during his testimony led Judge Rasin to find him in contempt.[79] On appeal of the decision, Thomas argued, among other things, that the contempt was improper because juvenile courts have exclusive original jurisdiction over minors who commit an act, which if committed by an adult, would be a crime.[80] Thomas v. State, id., at 541. Thomas argued that since criminal contempt, if committed by an adult, would be a crime, then if the alleged contemnor is a juvenile the contempt charge could only be initiated in juvenile court. The Court of Special Appeals rejected this argument, stating that when the legislature created the juvenile courts, it did not intend to deprive other courts of authority to punish juveniles for direct contempt. In all-too-familiar language, the Court of Special Appeals said: If we were to adopt the appellant’s point of view that Judge Rasin had no authority to dispose summarily of the facie curiae contempt by a juvenile, we would erode the authority of the judge to conduct court proceedings in an orderly manner, strip a trial court of its right to deal with contemptuous, disruptive juvenile witnesses, render nugatory Md. Rule P3(a) [recodified at Md. Rule 15-203] in its application to juveniles and throw open wide the door to conduct creating chaotic courtroom conditions. Id., at 541.

However, the Court once again was quick to remind the insulted judge that, “Although we have held herein that the trial judge may summarily punish juveniles for direct contempt, they, however, should bear in mind, in meting out punishment, that they are dealing with a juvenile.” Id., at 542. Further complicating the issue of whether or not juveniles should have delinquency proceedings for criminal contempt charges is the fact that courts have consistently held that criminal contempt is not a per se “crime.” Although counterintuitive to the linguist, courts agree that “criminal contempt” generally is NOT a crime.
IS CONTEMPT A CRIME? Despite the fact the contempt is a stain that will follow the contemnor, courts have rejected the notion that contempt is a “crime” in as much as the constitutional rights of an individual accused of criminal acts apply.[81] Further, the Supreme Court has found that it is not a violation of due process to proceed even if the defendant in a contempt proceeding is not present, one of the most fundamental rights.[82] In fact, the Supreme Court long ago opined: [This] argument [that criminal contempt is a crime] misconstrues the nature of the proceeding. While contempt may be an offense against the law and subject to appropriate punishment, certain it is that since the foundation of our government proceedings to punish such offenses have been regarded as sui generis and not ‘criminal prosecutions’ within the Sixth Amendment or common understanding.[83]

It would not be a novel argument for the author to assert herein that a criminal contemnor ought to be entitled to full due process of law when facing contempt proceedings, particularly when the alleged contemnor is a juvenile. An argument in support of extending juvenile delinquency proceedings to contempt charges is supported by the plethora of appellate language and dicta instructing trial courts to be tolerant and mindful of the special needs of juveniles. However, a more fundamental analysis reveals the reasoning of the courts in not providing this protection to juveniles. Consider the rudimentary logic argument, “If X, then Y.” Here Let us say that“X” is an act allegedly committed by a juvenile, which if committed by an adult would be a criminal act with statutorily provided punishments, . and “Y” is exclusive original jurisdiction in juvenile court for minors who have allegedly committed that act. Unless the legislation has provided that the alleged act does not originate in juvenile court, iIf a juvenile commits an act, which if committed by an adult would be a crime, then the juvenile courts generally have exclusive original jurisdiction. “If X, then Y.” But is contempt a crime? If contempt is not a crime, “X”, then there can logically be no “Y,” here, juvenile proceedings.
Following the landmark decision in Gault, juveniles have benefited from most of the due process protections afforded to adult in delinquency proceedings.[84] Despite the fact the contempt is a stain that will follow the contemnor, courts have rejected the notion that contempt is a “crime” in as much as the Constitutional Rights of an individual accused of criminal acts apply. Further, the Supreme Court has found that it is not a violation of due process to proceed even if the defendant in a contempt proceeding is not present, one of the most fundamental rights. In fact, the Supreme Court long ago opined:
[This] argument [that criminal contempt is a crime] misconstrues the nature of the proceeding. While contempt may be an offense against the law and subject to appropriate punishment, certain it is that since the foundation of our government proceedings to punish such offenses have been regarded as sui generis and not ‘criminal prosecutions’ within the Sixth Amendment or common understanding.[85]

As to our logic argument, “If X, then Y,” consider Maryland Code, Courts and Judicial Proceedings Article 3-8a-03(d). The General Assembly, in creating the juvenile court system and the constant refinement thereof since its inception, has limited the exclusive original jurisdiction of the court to exclude many crimes, including any capital crime allegedly committed by a child at least fourteen years old, and abduction, kidnapping, murder in the second degree, manslaughter, robbery, sexual offenses, etc., when the child is at least 16 years old. The legislature has clearly spoken as to which crimes or acts are outside the jurisdiction of the juvenile courts, and thereby have denied juveniles the protections and process of the juvenile system through this specific, intentional exclusion. Id., at (d)(1, 4). To account for these acts, we must modify the argument. Let us consider the acts listed under 3-8a-03(d) as “Z” “If X, but not Z, then Y.” If the General Assembly had intended to allow courts of general jurisdiction to proceed summarily against a juvenile for alleged contempt, it could have easily included it in section (d) of 3-8a-03. Because contempt is not specified as a “Z”, our argument should hold. However, the discussion of “sui generis” offenses require us not only to refer to our Latin dictionary, but to abandon our model altogether. “Sui generis” means literally, “of its own kind.”[86] The effect of classifying contempts as “of their own kind”, then, is to say that the procedures afforded generally in criminal procedure do not apply because a contempt charge is not a criminal charge. But an alleged contemnor is generally afforded the right to present mitigating evidence, and to have a hearing on the matter held by an impartial judge and prosecutor.[87] However, as we have discussed, there is a gradual trend towards a consensus determination that some due process must be afforded alleged contemnors because of the peril of the deprivation of liberty. The reality, therefore, of how alleged contemnors are treated exists somewhere in the gray- the procedure is neither draconian as “judge, jury and executioner”, nor is it a shining example of justice.
DISCUSSION
Ann M. and Thomas reveal a troubling conflict: while Maryland Appellate Courts, in their dicta, chide trial court judges to proceed with tolerance and patience when dealing with juveniles because it is the mandate of the General Assembly to do so, no appellate court has been willing to abandon the outmoded practice of summary contempt proceedings against juveniles. Whether it is the recollection of the difficulty in managing a courtroom that prompts this sympathy from appellate judges, or merely their fancy with a summary power that comes with the robe and gavel, no judge has been willing to break ranks. The legislature, however, could institute special proceedings for juvenile charged with contempt that would protect the court’s inherent contempt powers while forcing the courts to act in a manner consistent with the public mandate of not treating children as criminals. The argument of the courts that codification of contempt proceedings is merely the formality of putting into statute commonly known practice is lackadaisical and self-serving. Further, reliance on the argument that criminal contempt is not a crime and therefore juveniles are not entitled to delinquency proceedings when alleged as contemnors, is a notion that has been dispelled by several of Maryland’s learned sister states though legislative action.

ACROSS THE FENCE: HOW OTHER STATE’S HAVE ADVANCED JUVENILES’ RIGHTS IN CONTEMPT PROCEEDINGS

Wisconsin. Lacking a specific statute dealing with juveniles and contempt, Wisconsin’s Supreme Court has developed a progressive four-prong test to determine the appropriateness of contempt charges against a juvenile who has disobeyed a court order. The Court found that a juvenile status offender, who violated the court’s order to attend school, get good grades, and not consume alcoholic beverages, may be held in contempt and incarcerated if: (1) the juvenile was provided with sufficient notice to be able to comply with the order, (2) the violation of the court was egregious, (3) the court considered and found less restrictive alternatives to be inadequate, and (4) special confinement arrangements can be arranged.[88] Despite allowing for the confinement of the youth, the Court was careful to note that the youth so confined was not been found delinquent, and thus not bootstrapped. Id., at 184. The Court also stated that, “only under the most egregious circumstances should the juvenile court exercise its contempt power to incarcerate a status offender in a secure facility.” Id., citing State v. Norlund, 31 Wash.App. 725 (1982). Wisconsin has struck a happy medium between observing the intentions of the juvenile system and the need of judges to have some kind of power to compel compliance from juveniles under their jurisdiction. The Wisconsin Court has held that although issuing a finding of contempt against a juvenile for the first violation of an order to attend school is impermissible, the statute allowing a judge to hold a juvenile in contempt for repeated truancy in violation of a court order is proper.[89] Michigan. Michigan amended their its contempt statutes in 2003 to allow juveniles who are seventeen or older to be adjudicated by a court and sentenced summarily to up to 30 days in adult prison, with no sight and sound separation required.[90] However, the rule also reads, “Younger juveniles [under 17 years of age] found in contempt of court are subject to a juvenile disposition under these rules.” Id. This rule seems to strike a balance between protecting the cherished powers of the courts to hold individuals in contempt, while observing the public mandate to rehabilitate youths and not treat them as criminals. Additionally, this approach limits the possible instances of bootstrapping, as previously discussed. North Carolina. North Carolina, likewise, has specifically laid a procedure out in statute that instructs a court on how to deal with the young contemnor. Besides outlining specifically the types of acts that are contemptuous, North Carolina has taken the unique posture of allowing a judge who witnesses direct contempt to proceed summarily or issue a show cause order, allowing the juvenile to present mitigating evidence that could excuse the alleged contempt.[91] More importantly, however, the statute requires all alleged juvenile contemnors: provide the juvenile notice of the allegation and an opportunity to respond, be provided with an attorney and to have time to confer with that attorney, AND protects the juvenile by requiring proof that the juvenile committed the contempt, beyond a reasonable doubt. Id. If a juvenile is found to be in contempt by a court, the judge is limited in the punishment he may administer. The statute allows for up to five days in a juvenile detention facility,[92] up to thirty hours of community service, or the judge may authorize an evaluation to determine the needs of the juvenile. This model is superior to the Michigan statute because it keeps juveniles out of adult lockups, allows a judge to determine if the juvenile is in need of mental or health services, and provides adequate due process protection. Massachusetts. The Supreme Court of Massachusetts has taken a more slippery approach on protecting juveniles from bootstrapping. The Court has held that Juvenile courts lack the statutory authority to issue contempt orders against juveniles in need of services (“CHINS”) who violate orders of the juvenile courts, such as those orders to attend school. The prohibition on incarceration and punishment of “CHINS” has led the Court to note: Although contempt is an inherent power of the court, because the Juvenile Court was created by the Legislature, we interpret the scope of its powers consistent with the legislative grants of power that are either ‘articulated expressly or ... capable of being deduced by ‘necessary and inevitable’ implication.’… The express legislative policy of decriminalization and the absence of plain language permitting criminal contempt remedies, therefore, should be recognized and not abrogated.[93]

Note, however, this does not apply to juveniles who insult the court in other proceedings. It is merely a clear statement prohibiting bootstrapping. This approach, however, of strictly reading the juvenile statutes, would allow an appellate court of such mind to prohibit contempt against certain juveniles unless the proceedings are specifically authorized. California. Ever on the cutting edge of jurisprudence, the Court of Appeals of California recently overturned a contempt order made by the juvenile court against a youth who failed to meet the terms of his probation.[94] The juvenile was adjudicated delinquent for possession of marijuana; though the court stayed the fine, he was placed on probation. On his continued violation of the terms of probation, the State sought an order of contempt. The judge found the juvenile in contempt; the Court of Appeals said that holding juveniles in contempt and confining them for probation violations fundamentally undermines the purposes of the juvenile justice system. Further, the Court rejected the incarceration because the when the legislature enacts a law, the violation of which carries only a fine and no possibility of incarceration, it is unlawful to confine the minor for violations of the probation imposed for breaking that law.

A SIMPLE ANSWER: JUVENILE PROCEEDINGS FOR ALLEGED MINOR-CONTEMNORS

While it seems providing juvenile proceedings to those youths facing contempt charges might satisfy all parties- that is, afford the youths the protections of the juvenile system while allowing courts to preserve their dignity- there is little interest in the matter. The case of A.S., discussed at the beginning of this paper, while not one-of-a-kind, is rare. There is no way of knowing how many minors are charged with criminal contempt or subjected to civil contempt to compel behavior. However, the danger faced by a youth in any of these situations, coupled with the inaction by the Courts of Maryland, warrant action by the General Assembly. In addition to the danger of bootstrapping a status offender and classifying him or her into a delinquent, the psychological and physical danger facing a youth who is incarcerated is always of great concern. While it is unavoidable when a child has been adjudicated delinquent, or convicted as an adult, such a finding is permitted specifically by statue, and thus consistent with the legislative goals of protecting public. However, when the only “crime” is disobedience of a court order, is it in the best interest of the “village” to expose the insolent child to institutionalization? While it is not my position that status offenders who insult the court and ignore lawful orders should be rewarded, the Michigan model, allowing for juvenile dispositions for all contemnors under 17 years of age would serve the State’s interest in rehabilitating and protecting children ,while still providing courts remedy for their insulted dignity. The Wisconsin model, requiring the use of the least restrictive means to compel the behavior, could alternatively be instituted in Maryland by statute. A legislative amendment, such as the one attached hereto as Exhibit A, to the juvenile article or the contempt rules, which would allow for contempt proceedings against a child who repeatedly disobeys a lawful order of the court after appropriate hearings, as in Massachusetts, would protect youths, meet requirements of deinstitutionalization as required by Federal law, and still protect the dignity of the courts by allowing judge’s to deal with insolent children. Most importantly, however, to prevent situations such as the one encountered by A.S., any child not subject the jurisdiction of a juvenile court, such as a witness in a criminal trial, must be entitled to delinquency proceedings, no matter how outrageous the conduct in the court of justice. The old-reliable argument that contempt is “sui generis” and an “inherent power” must be tempered; it is the public mandate, and in the long term it is in the best-interests of society, to rehabilitate troubled youths, and not to pave the road to a life of crime by forcing unnecessary contact with adult offenders or juvenile delinquents. Maryland’s sister states are starting to get the idea; while some courts have acted, the legislature can bridge this gap by clarifying their intentions of the juvenile system, or by amending the court rules to include procedures on how to handle juvenile contemnors.

SUMMARY It was once said that you can tell a lot about the status of a society by looking into its prisons. Today, I suggest the way we treat our children tells more. It is no great task to, individually or as a village, raise the future doctors, lawyers, scientists and stars of tomorrow. How a family, society, or juvenile services system reacts when dealing with the most troubled of youths is the true measure of our tolerance, and the real litmus test of our dedication to the rehabilitation of wayward children. A.S. was locked in jail with her alleged rapist because a judge was angry with her failure to appear to testify. Had she been killed, or assaulted, perhaps activist groups would be battering down the Capitol doors in Annapolis. Fortunately for her, the crisis was averted. But what happens to the next child, otherwise not delinquent or in need of services, who doesn’t understand the gravity of a subpoena and fails to appear? Will it take a death before the General Assembly acts? Perhaps judges, such as C. Clarke Raley, who was so quick to lock up A.S., need to spend some time in St. Mary’s Detention facility to “learn the consequences of disobeying a clear order” by the People of Maryland: rehabilitate our children.
APPENDIX A:
Proposed Statutes, Addressing Procedures To Be Used When A Juvenile Is Alleged To Be In Contempt of Any Court
(New Text)
(Deleted Text)

MARYLAND RULES
Title 15. Other Special Proceedings
Chapter 200. Contempt
Rule 15-209. Contempts Involving Juveniles

Proceedings on any alleged contempt committed by a child, as defined in Cts. & Jud. Pro 3-8a-01(d), shall be governed by Title 3, Subtitle 8a of the Courts and Judicial Proceedings Article.

ANNOTATED CODE OF MARYLAND
Title 3. Courts Of General Jurisdiction - Jurisdiction/Special Causes of Action
Subtitle 8a. Juvenile Causes - Children Other Than CINAS And Adults
§ 3-8A-03. Jurisdiction of court.

(a) Child alleged to be delinquent, in need of supervision or with citation for violation; termination of parental rights; peace order proceedings; Interstate Compact on Juveniles.- In addition to the jurisdiction specified in Subtitle 8 of this title, the court has exclusive original jurisdiction over:

(1) A child who is alleged to be delinquent or in need of supervision or who has received a citation for a violation;

(2) Except as provided in subsection (d)(6) of this section, a peace order proceeding in which the respondent is a child; and

(3) Proceedings arising under the Interstate Compact on Juveniles; and

(4) Proceedings against a child who, in any Court of the State of Maryland, has allegedly committed an act of contempt.

(A) Such a proceeding under this section is sui generis, and not a delinquency proceeding.

(B) A child alleged to have committed an act of contempt is entitled to counsel.

(C) Proceedings under this paragraph are to proceed in accordance with section 3-8a-02 of this Subtitle.

§ 3-8A-06. Waiver of jurisdiction.
…
i) Subject to the hearing requirement of paragraph (b) of this section, the court may waive the exclusive jurisdiction conferred by § 3-8A-03 of this subtitle with respect to a petition alleging contempt by a juvenile in any court of Maryland, if: a. in the Court’s opinion, the interest of expeditiousness and justice outweighs the juvenile’s right to delinquency proceedings; b. such a waiver is consistent with the goals defined in section 3-8A-01 of this subtitle; and c. such waiver shall not result in prejudice to the child.

§ 3-8A-22. Limitations on place of commitment.
…

b) Facility used for confinement of delinquent children.- A child who is not delinquent may not be committed or transferred to a facility used for the confinement of delinquent children; a child who has been adjudicated guilty of contempt under 3-8a-03(a)(4), or who has been found guilty of contempt by another court following waiver of the contempt charges by the juvenile court, may be sentenced and housed in a facility used for the confinement of delinquent children for not more than thirty (30) days.

§ 3-8A-27. Confidentiality of records
…
(h) Contempt Proceedings Against Juvenile Confidential. Subject to this section, all proceedings involving allegations of contempt committed by a juvenile are part of the juvenile court record, and entitled to all protections and disclosure relevant thereto.

-----------------------
[1] While it seems possible that, given her youth, A.S. did not appreciate the gravity of a subpoena, she was not a stranger to the legal system. In addition to the case in which she had been called to testify, she had already engaged in a paternity suit with the alleged father of her baby, was a state’s witness in a pending sexual assault case, and was under the supervision of the Department of Juvenile Services. By all accounts, she was “familiar with the system.”
[2]Specifically, the Public Defenders relied on 42 U.S.C. 5633 (a)(13), prohibiting the placement of juveniles in adult lockups and jails, except for certain instances. None of the exceptions applied to Judge Raley’s sentence or the situation.
[3] “Judge Moves Girl’s Contempt Sentence Out of Jail.” The Enterprise, March 5, 2008. John Wharton.
[4] The Enterprise, Id., March 5, 2008. Mackall ultimately plead guilty to a third-degree sexual offense and an unrelated attempted arson charge, for which he received a total of 3 years in prison. John Wharton, “Man Jailed Three Years For Attempted Arson, Sex.” The Enterprise, March 26, 2008.
[5] Wharton, The Enterprise, March 26, 2008, Id.
[6] Maryland Courts & Judicial Proceedings Article, 3-8a-22(b).
[7] McCarthy et al., Juvenile Law and Its Processes: Cases and Materials.. 3rd Edition. Lexis Nexis. 2003. P 29
[8] Chapter 64, Session Laws of 1830.
[9] See Maryland Department of Juvenile Services. Accessed 12/15/2008 at http://www.djs.state.md.us/history.html
[10] Chapter 64, Sessions Laws of 1830, Id., at Sec. 6.
[11] Maryland Manual, “Department of Juvenile Services.” Accessed 12/15/2008 at http://www.msa.md.gov/msa/mdmanual/19djj/html/djjf.html; As to continued public support of this notion, see Moon, et al., “It Takes A Village: Public Willingness to Help Wayward Youths.” Youth Violence and Juvenile Justice, Vol. 1, No. 1, 32-45 (2003) Abstract at http://www.ncjrs.gov/App/Publications/abstract.aspx?ID=199599
[12] Maryland Manual, Id.
[13] Maryland Manual, Id.
[14] Maryland Manual, Id.
[15] Chapter 326, Session Laws of 1916.
[16] Chapter 797, Session Laws of 1943. Note, however, current Md. Cts. & Jud. Pro. Art., 3-8a-03(d), giving original jurisdiction to adult circuit court for minors of certain ages who have allegedly committed various serious crimes.
[17] See Legislative and Policy notes, Md. Cts. & Jud. Pro. Article, 3-8a-02.
[18] In re Ann M., 309 Md. 564, 571 (1987); citing In re Fletcher, 251 Md. 520, 529 (1968).
[19] “44th Annual Report of the Managers of the House of Refuge.” Published by the House of Refuge, Baltimore, Md. 1895. Accessed 12/15/2008 at http://books.google.com/books?id=c9IqAAAAMAAJ
[20] Maryland Manual, Id.
[21] Chapter 29, Session Laws of 1922.
[22] Maryland Manual, Id.
[23] Chapter 326, Session Laws of 1916.
[24] Chapter 797, Session Laws of 1943. Note, however, current Md. Cts. & Jud. Pro. Art., 3-8a-03(d), giving original jurisdiction to adult circuit court for minors of certain ages who have allegedly committed various serious crimes.
[25] See Legislative and Policy notes, Md. Cts. & Jud. Pro. Article, 3-8a-02.
[26] In re Ann M., 309 Md. 564, 571 (1987); citing In re Fletcher, 251 Md. 520, 529 (1968).
[27] Chapter 797, Session Laws of 1943.
[28] Chapter 126, Session Laws of 1966. This act transferred responsibility for the supervision of delinquents only; the care of abused and neglected children stayed primarily with the DPW; DJS was a secondary agency for the care of “neglected, dependent, and feeble-minded children.” As with many state agencies, it was unclear, for example, who would be responsible for a neglected child who also was an alleged delinquent.
[29] Chapter 77, Session Laws of 1969.
[30] Chapter 290, Session Laws of 1987.
[31] Chapter 539, Session Laws of 1989.
[32] Chapter 8, Session Laws of 1995. Consider the contemporaneous passage of the Federal “Criminal Street Gangs Act”, as part of the “Violent Crime Control And Law Enforcement Act Of 1994”, Public Law 103-322, codified at 18 U.S.C. 521 et seq., providing enhanced penalties for individuals convicted of certain offenses conducted in concert with gang members; see also Fleischer, Beggars And Thieves: Lives Of Urban Street Criminals. University of Wisconsin Press, 1995; Decker & Winkle, Life in the Gang. Cambridge University Press, 1996.
[33] Chapter 53, Session Laws of 2003.
[34] Fiscal and Policy Note, Maryland General Assembly House Bill No. 860, Regular Session, 2003. Compare with campaign statements from Gov. Ehrlich, in which he supported resurrecting the “boot camp” model, abandoned in the late 1990s because of several high profile deaths. “Ehrlich says he would resurrect boot camps.” Baltimore Sun, April 22, 2002. Just a month before Ehrlich made this statement, DJS had settled, for $4.6 million dollars, a lawsuit brought by 860 former “campers”, juveniles adjudicated delinquent and sent to these military-style camps. See “Md. to Settle Boot Camp Lawsuit; State to Pay $4.6 Million for Alleged Assaults by Guards.” The Washington Post, March 30, 2002.
[35] Maryland Code, Courts & Judicial Proceedings Article, 3-8A-02(A)(4).
[36] U.S. v. Hudson, 11 U.S. 32, 1812 WL 1524 (1812); Ex parte Robinson, 86 U.S. 505, 1873 WL 16067
(1873); Michaelson v. U. S. ex rel. Chicago, St. P., M. & O. Ry. Co., 266 U.S. 42 (U.S.Wis.,1924). Also consider: “…One of the most important and essential powers of a court is the authority to protect itself against those who disregard its dignity and authority or disobey its orders. This authority is appropriately administered through a court's power to punish by contempt.” In re Inquiry Concerning Perry, 641 So.2d 366 (Fla., 1994) citing, South Dade Farms, Inc. v. Peters, 88 So.2d 891 (Fla.1956)
[37] See U.S. v. Neal, 101 F.3d 993, 996 (4th Circ., 1996). A witness overslept and failed to appeal to testify at trial; the trial judge, believing the witness to be in indirect criminal contempt proceeded without the aid of a prosecutor. In overturning the finding of contempt, the Court of Appeals explains in simple language the difference between criminal and civil contempt, as well as direct and indirect.
[38] See Matter of Terrebonne Fuel and Lube, Inc., 108 F.3d 609 (5th Cir., 1997); U.S. v. Dowell, 257 F.3d 694 (7th Cir., 2001). However, in Maryland, the Court of Appeals has recognized the often blurred lines between the two. “Today, the line between civil and criminal contempt is frequently hazy and indistinct. Often the same acts of omissions may constitute or at least embrace aspects of both…When this is the case, an alleged contemnor may be answerable in either a civil or criminal contempt proceeding.” State v. Roll, 267 Md. 714, 728 (1973) (internal citations omitted.); See also Pearson v. State 28 Md.App. 464 (1975).
[39] For a recent in-depth, yet remarkably clear, discussion of criminal, civil, direct and indirect contempts, and the potential overlaps between each, see King v. State, 400 Md. 419 (2007)
[40] In re Oliver, 333 U.S. 257, 275, (1948)
[41] “Contempt.” Black’s Law Dictionary, 8th Edition. (2004)
[42] Scott v. State 110 Md.App. 464 (1996)
[43] Chadwick v. Janecka, 312 F.3d 597 (3d Cir. 2002), cert. denied, 538 U.S. 1000 (2003)
[44] Ashford v. State, 358 Md. 552 (2000); Carbon Fuel Co. v. United Mine Workers of America, 517 F.2d 1348 (4th Circ., W.Va.,1975); Bradley v. American Household Inc., 378 F.3d 373 (4th Circ., W.Va.,2004)
[45] Id., Ashford, 358 Md. 552
[46] Mayberry v. Pennsylvania, 400 U.S. 455, (Pa. 1971)
[47] People v. Baxter, 268 N.E.2d 256 (Ill.App. 1 Dist., 1971); Judgment affirmed, 278 N.E.2d 777 (Ill., 1972)
[48] U.S. v. Ortlieb, 274 F.3d 871 (5th Circ., La., 2001) For discussion, see Simpson & Seldon, “The Proud and the Profane: Court Corks Cursing Contemnors.” Texas Bar Journal, October, 2002. The fines against the attorney for the criminal contempt were upheld; the court ordered suspension of his license to practice law was overturned on appeal, however.
[49] State v. Roll, 267 Md. 714 (1973) Note, however, that although such a refusal occurs in a courthouse, such a contempt may not be considered “direct”, thus may not be punished summarily.
[50] Gardner v. State, 10 Md.App. 691 (1971)
[51] Matter of Finding of Contempt in State v. Kruse, 194 Wis.2d 418 (1995)
[52] Kandel v. State, 252 Md. 668 (1969)
[53] “Contempt.” Blacks Law Dictionary, 8th Edition (2004); Parkhurst v. U.S. Dept. of Educ., 9 Fed. Appx. 900 (10th Cir. 2001), cert. denied, 534 U.S. 942, (2001); Bingman v. Ward, 100 F.3d 653 (9th Cir., 1996)
[54] Hicks on Behalf of Feiock v. Feiock. 485 U.S. 624, 631 (1988); Mattingly v. Houston, 252 Md. 590 (1969).
[55] The Court of Appeals points out, however, a party may be held in constructive criminal contempt for failing to follow a court order; the purpose of which is to punish the noncompliance, not force compliance. Dodson v. Dodson, 380 Md. 438, (2004) stating, “We have pointed out that a constructive criminal contempt action is the appropriate means to punish a past willful violation of a court order.” If the purpose of the contempt, however, is to force compliance then the contempt is civil. Note that the same noncompliance by a party can result in either criminal or civil contempt.
[56] McComb v. Jacksonville Paper Co. 336 U.S. 187, 191 (1949)
[57] Carbon Fuel Co. v. United Mine Workers of America, Id., at 1349. As to impropriety of a civil contempt order for nonpayment of child support, which did not contain a purge clause in the event the full amount of support was paid by the contemnor, see Jones v. State, 351 Md. 264, (1998)
[58] For example, nearly 200 years ago, courts bristled at the notion that their contempt powers existed by the province of legislation. See U.S. v. Hudson, 11 U.S. 32, Id. “Certain implied powers must necessarily result to our Courts of justice from the nature of their institution... To fine for contempt-imprison for contumacy-inforce [sic] the observance of order, &c. [sic], are powers… not immediately derived from statute”
[59] Fed.R.Crim.Pro 42(b)
[60] Brown v. U.S., 359 U.S. 41, 51 (1959), citing Sacher v. United States, 343 U.S. 1, 7; Notes of Advisory Committee on Rules, 18 U.S.C.A., Rule 42, note; over-ruled on other grounds by Harris v. U.S., 382 U.S. 162 (1965)
[61] Goldsborough v. State, 12 Md.App. 346, (1971); citing Ex Parte Maulsby, 13 Md. 625 (1859)
[62] Dep’t Nat. Resources v. Linchester Sand & Gravel Corp., 274 Md. 211 (1975).
[63] Fed.R.Crim.Pro 42(b); Maryland Rules, 15-203(a). In Maryland, however, even direct contemnors are permitted to present exculpatory or mitigating evidence. See Hermina v. Baltimore Life Ins. Co., 128 Md.App. 568 (1999). Despite the appellate court’s guidance as to temperance in direct contempt proceedings, it is difficult to imagine what possible mitigating evidence would excuse cursing in open court, calling opposing counsel an “idiot”, etc., as in the illustrations of direct criminal contempt provided earlier.
[64] Pearson v. State, 28 Md.App. 464 (1975); Betz v. State, 99 Md.App. 60 (1994)
[65] Argersinger v. Hamlin, 407 U.S. 25 (1972)
[66] Pearson, 28 Md.App. 464, Id., at 487.
[67] See State ex rel. Morton v. Meyers, 171 La. 313 (1930) (State Constitution provides that power of courts to punish for contempt shall be limited by law). Oklahoma, likewise, takes a unique posture: “In Oklahoma contempts are not governed by the common law, but by the Oklahoma Constitution and Statutes.” Sommer v. Sommer, 947 P.2d 512 (Okl.,1997), citing Watson v. State ex rel. Michael, 1989 OK 116. The Oklahoma Court notes, however, that while there is some inherent power in the courts regarding contempt, that power is subservient to the statutes and State Constitution. As to States which have specifically held an absence of a prohibition on contempt in the state constitution indicates the presence of an inherent power, see Beach v. Beach, 79 Ohio App. 397, (3d Dist. Crawford County, 1946) (citing lack of Constitutional authority of Legislature to destroy, abridge, or limit the inherent power of courts to punish for contempt); State v. Estill, 55 Wash. 2d 576 (1960) (holding that all Constitutionally created courts have inherent right to contempt powers, unless otherwise indicated.)
[68] Some courts have tended away from so-called “bootstrapping.” By initiating delinquency proceedings against a status offender for violating an order of the court, courts have, in the past, turned mere status offenders into delinquents. As to impropriety, see In re Dylan C., 864 N.Y.S.2d 730 (2008); Com. v. Florence F., 429 Mass. 523 (1999); In re Trent, 43 Ohio St.3d 607, (1989); In re Ann M., 309 Md. 564, (1987); Suzanne A. Hopf, “Detaining Status Offenders in Excess of Ten Days: A practice that violates statutory limits and which is contrary to the Department of Juvenile Justice Recommendations.” The Advocate. Volume 22, No. 2, March 2000. Accessed at http://www.e-archives.ky.gov/pubs/Public_Adv/mar00/status.html. However, consider the “Valid Court Order Amendment” of the Juvenile Justice Delinquency Prevention Act, at 28 C.F.R. 31.303(f)(3), permitting courts to hold status offenders who are in violation of a lawful order in secure detention.

[69] In re Ann M., 309 Md. 564 (1987)
[70] An examination of her attendance records revealed she had missed approximately forty percent of the preceding school year Id., at 566.
[71] A “CINS” in Maryland is “a child who requires guidance, treatment or rehabilitation” AND is either habitually truant, “beyond control” of his parent or guardian, is a danger to self or others, OR has committed a status offense. See MD Cts. & Jud. Pro. Art. 3-8a-01(e).
[72] Ann M. had appeared before the court in a hearing to determine whether or not her mother should retain custody of her.
[73] See MD. Education Art., 7-301(a)(1). “Except as otherwise provided in this section, each child who resides in this State and is 5 years old or older and under 16 shall attend a public school regularly during the entire school year unless the child is otherwise receiving regular, thorough instruction during the school year in the studies usually taught in the public schools to children of the same age.”
[74] Judge Rasin is certainly an interesting judge worthy of a paper devotedly entirely to his psychological make-up and jurisprudence. One can only speculate as to why many of the appellate cases in Maryland relating to contempt stem from his courtroom. A recently retired Circuit Court judge told this author, speaking on the condition of anonymity, that he had the opportunity to try cases as a young prosecutor before Judge Rasin. Said this Judge with reverential laughter, “During that time, there was one circuit court judge in Kent County- and he was the ‘King of Kent.’” Once, while a judge in Baltimore City, the court had run out of jurors to draw from; Judge Rasin, outraged, sent sheriffs out into the street to force more citizens into the jury pool. See The Washington Post, “Baltimore Holds Juror Roundup.” August 9, 1969. In addition to Ann M., the events that lead to the challenge of the contempt in State v. Thomas, 21 Md. App. 572 (1974), to be discussed later herein, took place in Judge Rasin’s courtroom. In Savage v. Maryland, 19 Md.App. 1 (1973), Judge Rasin found an inmate in civil contempt for failing to undergo a mental evaluation; Savage had already been sentenced 18 months for assault and robbery. For further cases involving Judge Rasin and contempt, see Bugg v. Trustees of Cokesbury Baptist Church, 252 Md. 59 (1969); Gardner v. State,10 Md.App. 691(1971); Attorney Grievance Commission v. Howard, 282 Md. 515 (1978). For Judge Rasin’s profile, see http://www.msa.md.gov/msa/speccol/sc5100/sc5123/000001/html/rasin.html
[75] In re Ann M, id., at 570, citing State v. Roll, 267 Md. 714, 717 (1973)
[76] Id., at 570; internal citations omitted.
[77] See Clinton, Hillary R., It Takes A Village. Simon & Schuster. New York, 1996. As to opposition to this notion, see Robert Dole, in a speech accepting the nomination for Republican Presidential candidate in 1996. “I am here to tell you it does not take a village to raise a child. It takes a family to raise a child.” Accessed 12/27/2008 at http://www.4president.org/speeches/dolekemp1996convention.htm
[78] 21 Md.App. 572 (1974)
[79] State v. Thomas, iId., at 574. Note also that the contempt was not identified as either criminal or civil; Judge Rasin, however, sentenced Thomas to 179 days, stating an “appropriate punishment” would be “some deprivation of… freedom, for some period of time.” There is little doubt that the contempt finding here was criminal, as it was “punishment.”
[80] Id., at 541
[81] Blackmer v. U.S., 284 U.S. 421 (1932)
[82]Blackmer, id., at 438
[83] Blackmer v. U.S., 284 U.S. 421 (1932), id.,, internal citations omitted. See also, Bowles v. U.S., 50 F.2d 848.
(4th Circ., 1931); Lawrence Gray, Esq., “Criminal and Civil Contempt: Some Sense Of A Hodgepodge.” 13 J. Suffolk Acad. L. 1, 14. (1999)
[84] Application of Gault, 387 U.S. 1 (1967). Although not entitled to bail, indictment by grand jury, public trial or to trial by jury, the Court in Gault held that a juvenile has a right to notice of charges, to counsel, to confrontation and cross-examination of witnesses, and to the privilege against self-incrimination.
[85] Blackmer v. U.S., 284 U.S. 421 (1932), internal citations omitted. See also, Bowles v. U.S., 50 F.2d 848
(4th Circ., 1931); Lawrence Gray, Esq., “Criminal and Civil Contempt: Some Sense Of A Hodgepodge.” 13 J. Suffolk Acad. L. 1, 14. (1999)
[86] Black's Law Dictionary (8th ed. 2004), “Sui generis.”
[87] See U.S. v. Neal, id., 101 F.3d 993
[88] In the Matter of the Finding of Contempt in: In the Interest of D.L.D. v. Circuit Court for Crawford County, 110 Wis.2d 168 (1983)
[89] In Interest of Aaron D., 214 Wis.2d 56, (1997)
[90] Michigan Code Annotated, Court Rules. Rule 3.982(C).
[91] North Carolina General Statutes, 5A-32(A).
[92] If adopted, this particular punishment would require Maryland to alter its position on who may be held a secure detention facility. As noted in the Case of A.S., DJS correctly cited Md. Cts. & Jud. Pro. 3-8a-22(b), which prohibits the housing of any youth not adjudicated delinquent, or pending delinquency charges, from being house in secure facilities.
[93] Com. v. Florence F. 429 Mass. 523 (1999)
[94] In re Fransico S., 102 Cal.Rptr.2d 514 (2000)