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Let’s fix the habeas gap

Most Marylanders have no idea that there exists in our midst, scattered across the entirety of the Free State, a loosely organized troop of more than three hundred (352 to be exact, at full strength) men and women between the ages of 30 and 70 with the power and authority to keep the peace.

If you see them in their automobiles or walking on the street or in bars or other places of public entertainment, you could not identify them by the clothes they wear or by any visible badge of office. They are all the judges of the courts of Maryland.  Each of them is a Conservator of the Peace (or CP) and their jurisdiction is the entire state, no matter where they sit, be it in Prince George’s County or in Western Maryland.

This little-known status is granted by the Maryland Constitution, Art. IV, Sec. 6: “All Judges shall, by virtue of their offices, be Conservators of the Peace throughout the State . . ..”

This provision has been in our Constitution since 1851. In State v. Glenn, back in 1880, the Court of Appeals held that this provision granted to the judges of this state the power to issue writs of habeas corpus because “every case of unlawful imprisonment is a violation of the peace of the State,” relying on an 1855 case by that court.  It traced the power of a judge as a Conservator of the Peace to issue a writ of habeas corpus to a ruling by the British House of Lords in 1758.

The Glenn Court stated that the legislature had no power to restrict the power thereby granted by the Constitution.  In 1892, the Court of Appeals in Sevinsky v. Wagens held that the power is conferred on individual judges, not on the courts on which they sit.

The broad interpretation of CP to grant a judge the right to act in the case of any “violation of the peace of the State,” and thereby invest him or her with the authority to issue the Great Writ solved a “problem” that existed then and now. While our Constitution provided (and provides) that the legislature “shall pass no law suspending the privilege of the Writ of Habeas Corpus,” it makes no mention of who can issue the writ.

As explained by the Court of Appeals in Walker v. State (2006), our legislature has granted the habeas power over the years to some but not all courts, including in 1860 the Court of Common Pleas in Baltimore City. The latest and continuing gap concerns the District Court. When it was established in 1971, the statute was not amended to grant its judges the power to issue the writ; it still has not (CJP 3-701). Article IV, Sec. 6 fills the gap.

In for a penny, in for a pound. CP may not have otherwise have resulted in cases involving our judges, but it has been interpreted by our courts and by other courts.  We know from Glenn that a judge has the power to act to prevent a violation of the peace, and that her powers cannot be restricted by the Legislature.

Those powers, according to Prince George’s County v. Aluisi (Court of Appeals 1999) include “certain police functions,” citing to its decision in Hagerstown v. Dechert (1870), which held that as a CP, the mayor had full authority to call on citizens to aid in the prevention and suppression of the riot.

The court quoted 3 Burn’s Jus. 4, that the general duty of CPs by the common law “is to employ their own and to command the help of others to arrest and pacify all such, who, in their presence . . . shall go about to break the peace.”

Ancient holding?  Perhaps, but in 1971, the Court of Appeals in City of Baltimore v. Silver, ruled that the mayor had potential liability under the Riot Act because he was a CP and quoted the very same language from Dechert.  In fact, the court stated that the mayor had the power as a CP to form a posse comitatus.

In our state, “when a state of public official is granted an express power . . . that power . . . carries with it those fairly implied powers incident to exercising or fulfilling the power,” and the scope of these implied powers is “liberally construed.” Thornton Mellon v. Sheriff (2021).  It may well be that judges, with police powers to arrest and pacify breakers of the peace, are entitled under the Constitution to carry guns on their persons, and without any need for a permit.  With the same constitutional provision as Maryland has, Texas thought so. Hooks v. State (1913).  Whatever our judges need to act as CPs, they are entitled to as a matter of right, the Legislature be damned.

Perhaps the time has come to amend our Constitution to fix the habeas gap once and for all, and to let our judges be judges, not adjunct State Police officers in mufti.