Does a child's parent charged in juvenile court with violating Maryland's compulsory school attendance law have a right to a jury trial?

Plain-English summary

A circuit court clerk asked the Attorney General to untangle an odd statutory quirk: prosecutors could charge someone with violating Maryland's compulsory public school attendance law in either the District Court or the juvenile court, and depending on which court was chosen, the defendant might or might not end up with a jury trial. A defendant prosecuted in District Court had a statutory right to a jury trial on appeal to circuit court, but a defendant prosecuted for the identical offense in juvenile court had no jury trial right at all, at trial or on appeal. The clerk asked whether, despite this statutory gap, the Maryland Constitution's jury trial guarantees required a jury trial anyway for the juvenile-court defendant.

The Attorney General concluded no constitutional jury trial right applied, at either level, to a defendant charged under ED §7-301(e)(1) (inducing or harboring a truant child, punishable by up to a $500 fine and 30 days in jail). Tracing a line of Maryland cases stretching back to 1880, the opinion explained that the constitutional jury trial guarantee has never been understood to cover every criminal charge, only offenses that were historically triable by jury or that are "infamous" in nature or punishment. Given the offense's modest maximum sentence and its character as a minor regulatory violation, the opinion concluded it fell within the category of offenses the Declaration of Rights allows to be tried, and reviewed on appeal, without a jury. The opinion pointedly declined to reach the closely related question for the more severely punishable ED §7-301(e)(2) offense, since that statute's meaning was tied up in pending litigation, and it flagged the resulting disparity (a prosecutor's choice of court determining a defendant's jury trial rights) as an anomaly the Legislature should reconsider.

Currency note

This opinion was issued in 1987. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why would the same truancy charge get a jury trial in one Maryland court but not another?
Because of a statutory quirk the opinion found troubling but not unconstitutional: a defendant convicted in District Court had a statutory right to a jury trial on appeal to circuit court, while a defendant prosecuted for the identical compulsory-school-attendance offense in juvenile court had no such right, at trial or on appeal, because Maryland Rule 910a barred juries in juvenile court and no separate statute gave a juvenile-court defendant appeal rights to a jury.

What made this offense one the Maryland Constitution allows to be tried without a jury?
The opinion applied a line of Court of Appeals cases holding that the jury trial guarantee in the Declaration of Rights reaches only offenses that were historically tried before juries or that are "infamous" given the severity of the punishment. Since a violation of ED §7-301(e)(1) carried a maximum of only a $500 fine and 30 days in jail, well below the punishment at issue in cases like Fisher v. State (drunk driving) and State v. Huebner (resisting arrest) where a jury right was found to attach, the opinion concluded it fell on the "minor offense" side of that line.

Did the opinion resolve whether the more severely punishable school-attendance offense (for a parent who fails to ensure attendance) also carries no jury trial right?
No. The opinion expressly declined to address ED §7-301(e)(2), the parental-failure provision, because a legal question about how to read its penalty (whether it authorizes 10 days per day of absence or just a flat 10-day maximum) was pending before the Court of Special Appeals at the time.

Background and statutory framework

Maryland's compulsory school attendance law, ED §7-301, required children ages 6 to under 16 to attend school and made it a misdemeanor for someone to induce or harbor a truant child (subsection (e)(1), maximum $500 fine and 30 days) or for a person with control over such a child to fail to ensure attendance (subsection (e)(2), maximum $50 per day fine and 10 days). Jurisdiction over these offenses was concurrent between the District Court and the juvenile court (which sits as the circuit court outside Montgomery County), giving prosecutors a choice of venue with very different jury trial consequences: District Court defendants could demand a jury trial on appeal to circuit court under CJ §12-401(e), while Maryland Rule 910a barred juries in juvenile court altogether, with no statutory appeal-stage jury right either.

The opinion built its constitutional analysis around Article 5 and Article 21 of the Maryland Declaration of Rights, tracing a line of Court of Appeals decisions defining the scope of the jury trial guarantee. Starting with State v. Glenn (1880), which upheld summary trial of a disorderly conduct charge as a "minor and statutory police offense," through Danner v. State and later cases, the opinion identified the operative test: the jury trial right attaches to offenses that were historically tried before juries, or that are "infamous" given the nature and severity of the punishment, as in Kawamura v. State (theft), Fisher v. State (driving while intoxicated), and State v. Huebner (resisting arrest). The opinion also traced a parallel line of cases, from Glenn through State v. Loden, holding that some minor offenses could historically be tried and reviewed on appeal without any jury at all, meaning the Declaration of Rights did not automatically grant an appellate jury right just because no trial-level right existed. Comparing the modest 30-day maximum sentence for ED §7-301(e)(1) to the more serious offenses in Kawamura, Fisher, and Huebner, and to the even lighter penalty upheld in Loden, the opinion concluded the offense belonged among the minor, historically-summary offenses, so no jury right attached at trial or on appeal. The opinion closed by flagging the resulting prosecutorial-choice anomaly as a legislative gap worth revisiting, and an editor's note added after publication recorded that the Court of Special Appeals later confirmed prosecutors' discretion to choose the charging court and resolved the pending ED §7-301(e)(2) sentencing question in In re Jeannette L.

Citations

Statutes:

• ED §7-301(a) (school attendance requirement)
• ED §7-301(c) (parental duty to ensure attendance)
• ED §7-301(e) (penalties, generally)
• ED §7-301(e)(1) (inducing or harboring a truant, misdemeanor)
• ED §7-301(e)(2) (parental failure to ensure attendance, misdemeanor)
• CJ §3-801(f) and 3-801(i) (juvenile court definitions and Montgomery County exception)
• CJ §§3-804(a), 3-804(c), and 3-831 (juvenile court civil/criminal jurisdiction distinctions)
• CJ §3-804(d) (juvenile court jurisdiction over compulsory attendance offenses)
• CJ §4-301(b)(1) (former exclusive District Court jurisdiction)
• CJ §4-302(c) (District Court concurrent jurisdiction)
• CJ §4-302(e) (jury trial demand deprives District Court of jurisdiction)
• CJ §4-302(e)(2)(ii) (judge may deny jury trial with prosecutor's 90-day recommendation)
• CJ §§12-401(a) and 12-403(a) (appeal to circuit court)
• CJ §12-401(d) (de novo appeal)
• CJ §12-401(e) (jury trial demand on appeal)
• CJ §§3-832 and 12-301 (juvenile court appeal to Court of Special Appeals)
• Maryland Rule 910a (no jury in juvenile court hearings)
• Article 5, Maryland Declaration of Rights (common law and jury trial guarantee)
• Article 21, Maryland Declaration of Rights (jury trial in criminal prosecutions)
• Articles 23 and 24, Maryland Declaration of Rights (related guarantees)
• Article 27, §690(c) (imprisonment served in county jail)
• Sixth Amendment to the United States Constitution (federal jury trial right)
• Chapter 664, Laws of Maryland 1984 (granting juvenile court concurrent jurisdiction)
• Chapter 205, Laws of Maryland 1985 (adding imprisonment penalty)
• Chapter 693, Laws of Maryland 1910 (motion picture licensing statute in Loden)
• Chapter 15, Laws of Maryland 1785 (vagrancy statute)
• Chapter 44, Laws of Maryland 1789 (vagrancy and prostitution statute)
• Chapter 6, Laws of Maryland 1777 (early summary conviction statute)

Cases:

• In re Johnson, 254 Md. 517 (1969)
• Harding v. State, 250 Md. 188 (1968)
• Hardy v. State, 279 Md. 489, 496 (1977)
• State v. Glenn, 54 Md. 572 (1880)
• Danner v. State, 89 Md. 220 (1899)
• State v. Stafford, 160 Md. 385 (1931)
• Crichton v. State, 115 Md. 423 (1911)
• Baum v. Warden of Jail, 110 Md. 579 (1909)
• Kawamura v. State, 299 Md. 276 (1984)
• Fisher v. State, 305 Md. 357 (1986)
• State v. Huebner, 305 Md. 601 (1986)
• Preston v. Warden, 225 Md. 628 (1961)
• Baldwin v. New York, 399 U.S. 66 (1970)
• Frank v. United States, 395 U.S. 147 (1969)
• Duncan v. Louisiana, 391 U.S. 145 (1968)
• Muniz v. Hoffman, 422 U.S. 454 (1975)
• State v. Baumert, 618 P.2d 1078 (Ariz. 1980)
• Seven Rivers Farm v. Reynolds, 508 P.2d 1276 (N.M. 1973)
• People v. Cruz, 492 N.Y.S.2d 872 (N.Y. Crim. Ct. 1985)
• Douglass v. First Nat. Realty Corp., 543 F.2d 894 (D.C. Cir. 1976)
• State v. Loden, 117 Md. 373 (1912)
• District of Columbia v. Clawans, 300 U.S. 617 (1937)
• State v. Shak, 466 P.2d 422 (Haw. 1970)
• McKane v. Durston, 153 U.S. 684 (1894)
• United States v. Classic, 313 U.S. 299 (1941)
• In re Jeannette L., 71 Md. App. 70 (1987)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1987/Volume72_1987.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

CONSTITUTIONAL LAW

Criminal Law—Jury Trial—Education—Application Of Constitutional Jury Trial Right To Defendants Charged With Violating Compulsory School Attendance Law.

February 10, 1987

The Honorable Norman L. Pritchett, Clerk
Circuit Court for Prince George's County

You have requested our opinion on whether a defendant charged in juvenile court with a violation of §7-301 of the Education Article ("ED" Article), the compulsory public school attendance law, has a constitutional right to trial by jury, either at the initial trial level or on appeal. The complex web of statutes affecting this offense produces an odd dichotomy: Defendants charged with a violation in District Court obtain a jury trial if they appeal their convictions to circuit court, but defendants charged with the same offense in juvenile court get no jury trial at all. This statutory oddity gives rise to the question of what, if any, constitutional rights to a jury trial apply to this offense.

For the reasons given below, we conclude that a defendant charged in a juvenile court with a violation of ED §7-301(e)(1) has no constitutional right to a jury trial at any level.1 In light of pending litigation that concerns, in part, the construction to be given the penalty in ED §7-301(e)(2), we express no opinion on whether a defendant charged with a violation of that provision has a right to a jury trial.

I
Compulsory Public School Attendance Law

A. Attendance Requirement

ED §7-301(a) provides that "[e]ach child who resides in this State and is 6 years old or older and under 16 shall attend a public school regularly," unless the child is receiving comparable instruction in a different setting. ED §7-301(c) commands that "[e]ach person who has under his control a child who is 6 years old or older and under 16 shall see that the child attends school or receives instruction as required by this section."

The penalties for violation of the compulsory public school attendance law are set out in ED §7-301(e):

"(1) Any person who induces or attempts to induce a child to absent himself unlawfully from school or employs or harbors any child who is absent unlawfully from school while school is in session is guilty of a misdemeanor and on conviction is subject to a fine not to exceed $500 or imprisonment not to exceed 30 days, or both.

(2) Any person who has control over a child who is 6 years old or older and under 16 who fails to see that the child attends school or receives instruction under this section is guilty of a misdemeanor and on conviction subject to a fine not to exceed $50 per day of unlawful absence or imprisonment not to exceed 10 days, or both."

B. Jurisdiction and Trial

Section 3-804(d) of the Courts & Judicial Proceedings Article ("CJ" Article) contains the following grant of jurisdiction to the juvenile court: "The jurisdiction of the [juvenile] court is concurrent with that of the District Court in any criminal case arising under the compulsory public school attendance laws of this State."2 In parallel terms, CJ §4-302(c) provides that "[t]he jurisdiction of the District Court is concurrent with that of the juvenile court in any criminal case arising under the compulsory public school attendance laws of this State." Thus, a State's Attorney may choose to prosecute violations of the compulsory school attendance law in either the District Court or the juvenile court.

Regardless of where prosecution of the offense is initiated, the defendant has no statutory entitlement to trial by jury at this stage. Maryland Rule 910a specifies that hearings in juvenile court are to be conducted "without a jury." See also In re Johnson, 254 Md. 517 (1969).

If the State's Attorney initiates prosecution in the District Court, CJ §4-302(e) provides that:

"(1) The District Court is deprived of jurisdiction if a defendant is entitled to and demands a jury trial at any time prior to trial in the District Court.

(2) (i) Except as provided in subparagraph (ii) of this paragraph, unless the penalty for the offense with which the defendant is charged permits imprisonment for a period in excess of 90 days, a defendant is not entitled to a jury trial in a criminal case.

(ii) Notwithstanding the provisions of subparagraph (i) of this paragraph, the presiding judge of the District Court may deny a defendant a jury trial if:

1. The prosecutor recommends in open court that the judge not impose a penalty of imprisonment for a period in excess of 90 days, regardless of the permissible statutory or common law maximum;

2. The judge agrees not to impose a penalty of imprisonment for a period in excess of 90 days; and

3. The judge agrees not to increase the defendant's bond if an appeal is noted."

The 30 days' maximum imprisonment authorized by ED §7-301(e)(1) falls below the 90 day ceiling in CJ §4-302(e)(2). Therefore, the defendant has no statutory entitlement to a jury trial, and the District Court cannot be deprived of jurisdiction by the filing of a demand for jury trial.3

C. Appeal

A defendant found guilty in District Court may appeal to circuit court. CJ §§12-401(a) and 12-403(a). The appeal in circuit court is de novo. CJ §12-401(d). See Harding v. State, 250 Md. 188 (1968). And the defendant, being "subject to a penalty of imprisonment," may demand a jury trial. CJ §12-401(e). As the Court of Appeals has observed:

"[U]nder the present statutes, a criminal defendant, appealing from a District Court judgment, has a right to a trial by jury in the circuit court de novo proceedings regardless of the seriousness of the criminal charges or whether he or she could have elected a jury trial under [CJ] §4-302[e]." Hardy v. State, 279 Md. 489, 496 (1977).

A defendant originally prosecuted in juvenile court has a right of appeal to the Court of Special Appeals. CJ §§3-832 and 12-301. Of course, there is no jury trial in such an appeal, which is based on the record compiled below.

II
Declaration of Rights Guarantee of Trial by Jury

Article 5 of the Maryland Declaration of Rights provides that "the Inhabitants of Maryland are entitled to the Common Law of England and the trial by Jury, according to the course of that Law . . . ." And, "in all criminal prosecutions, every man hath a right ... to a speedy trial by an impartial jury, without whose unanimous consent he ought not to be found guilty." Article 21 of the Declaration of Rights. See also Articles 23 and 24 of the Declaration of Rights. These guarantees have been carried forward, essentially unchanged, since the Constitution of 1776.

In Parts III and IV below, we consider the case law that has construed the jury trial right and we apply this body of precedent to prosecutions under ED §7-301(e)(1). We conclude that the Declaration of Rights does not compel the provision of a jury trial, either at the initial trial level or upon subsequent review.4

III
Right to a Jury at Initial Trial Level

A. Case law

In the seminal case of State v. Glenn, 54 Md. 572 (1880), the Court of Appeals traced the antecedents for summary trial of what it termed "minor and statutory police offenses." Glenn had been tried and convicted by a justice of the peace of "being habitually a disorderly person, leading a dissolute and disorderly course of life" and was sentenced to six months in the House of Correction. 54 Md. at 591-92. The Court of Appeals rejected Glenn's argument that she had a right to a jury trial in the first instance. Describing a long history of summary jurisdiction by justices of the peace "over parties offending against the peace and good order of society," the Court observed: "[W]e are not aware that it has ever been supposed that [the statutes'] provisions were in any way restrained or controlled by the declaratory provisions in the Declaration of Rights." 54 Md. at 602-03.5

Rather, the jury trial right in the Declaration of Rights "must be understood as referring to such crimes and accusations as have, by the regular course of the law and the established modes of procedure, as heretofore practiced, been the subjects of jury trial. It could never have been intended to embrace every species of accusation involving either criminal or penal consequences." 54 Md. at 606.

In Danner v. State, 89 Md. 220 (1899), the Court of Appeals reiterated that the right to a jury trial "cannot be demanded in many minor offenses." 89 Md. at 226. Without attempting to define the class of offenses that may be reached by summary proceedings, the Court of Appeals held that petit larceny, punishable by imprisonment for a term of up to 18 months, was not one of them.6

More recently, the Court of Appeals has considered whether defendants accused of various offenses had a right to a jury trial at the initial trial level, notwithstanding the limitations on that right in CJ §4-302(e). See Part I B above.

In Kawamura v. State, 299 Md. 276 (1984), the Court of Appeals held that the limitation on the defendant's jury trial right in CJ §4-302(e)(2)(ii) could not constitutionally be applied to the offense of theft. Although the maximum authorized imprisonment for the theft offense involved in Kawamura was 18 months, the prosecutor had recommended a term not to exceed 90 days and the District Court judge agreed to be bound by that recommendation. Then, pursuant to CJ §4-302(e)(2)(ii), the District Court denied Kawamura's jury trial request.

Summarizing the principles derived from Glenn and Danner, the Court of Appeals wrote that "the state constitutional jury trial right does attach in the first instance to offenses which historically had been tried before juries. It also attaches to any infamous offense or any offense subject to infamous punishment." 299 Md. at 291.

In concluding that the offense of petty theft fell within that imprecisely defined class of offenses warranting a jury trial in the first instance, the Court of Appeals held that "it is the nature of the offense, and not the disposition in a particular case, which is relevant to the state constitutional jury trial right in criminal cases." 299 Md. at 296. Hence, "to the extent that the length of incarceration or the place of incarceration is relevant . . ., it is the maximum sentence and place of incarceration established by the legislature for the particular offense which controls, and not the maximum sentence or place of incarceration decided by the court in a particular case." 299 Md. at 292. In addition, the intrinsic "nature of the offense", that is, the social destructiveness of the prohibited conduct, is to be considered:

"Theft, regardless of the amount involved, is and always has been regarded as an extremely serious offense in Maryland. ... At common law, a conviction for either petty larceny or grand larceny rendered a witness incompetent to testify due to the 'infamous' character of the crimes." 299 Md. at 296-97.

Two years later, in Fisher v. State, 305 Md. 357 (1986), the Court of Appeals held that defendants have a constitutional right to a jury trial for the offense of driving while intoxicated. Relying extensively on Kawamura, the Court of Appeals identified the factors to be considered in determining whether the jury trial right attaches at the initial trial level: (i) "whether the offense had historically been subject to . . . summary jurisdiction ... or whether it had historically been tried before juries"; (ii) "whether the offense is an infamous crime or subject to infamous punishment" (citing Glenn and Danner); (iii) "the seriousness of the offense"; and (iv) the maximum sentence and place of incarceration established by the General Assembly as punishment for the offense. 305 Md. at 365-66.

Although the Court of Appeals reviewed each of these factors in considering whether the right was applicable to the two offenses in question, it gave particular emphasis to the nature of the punishment and the seriousness of the offense. The Court pointed out that "driving while intoxicated is punishable by maximum imprisonment terms of one year for the first offense and two years for the second offense." 305 Md. at 366. Further:

"[T]he offense of driving while intoxicated is extremely serious. This is shown by the terrible consequences of the offense upon human lives and the manner in which the offense is regarded by the public. The maximum terms of imprisonment authorized by the Legislature constitute further indication of the offense's seriousness." 305 Md. at 367.

Thus, the Court held, "the Maryland constitutional right to a jury trial in the first instance attaches to the offense of driving while intoxicated . . . ." 305 Md. at 368. By contrast, the Court observed, if a defendant were charged with the "less serious offense [of] driving while under the influence of alcohol", punishable by a maximum of two months imprisonment, "the constitutional right to a jury trial would not attach." 305 Md. at 368-69.

Finally, in State v. Huebner, 305 Md. 601 (1986), the Court of Appeals held that a defendant charged with resisting arrest had a jury trial right in the first instance. The Court's analysis of the issue was brief. Comparing the crime of resisting arrest to the crime of assault and battery, to which a right to a jury trial attached, the Court noted that both crimes had no statutory ceiling on punishment and therefore "the punishment which may be imposed for committing the offense is obviously infamous. . . ." 305 Md. at 609. Indeed, the Court pointed out, a sentence of 10 years' imprisonment for resisting arrest had been upheld. See Preston v. Warden, 225 Md. 628 (1961).

B. Application to ED §7-301(e)(1)

As discussed in Part I A above, an adult who "induces or attempts to induce" a child's absence from school or who "employs or harbors" a truant is subject to a maximum punishment of a $500 fine and imprisonment for 30 days. ED §7-301(e)(1). The sentence of imprisonment would be served in a county jail, rather than in a prison. See Article 27, §690(c) of the Maryland Code. This punishment is not nearly as onerous as the punishment authorized for the crimes involved in Danner, Kawamura, Fisher, and Huebner.7

Moreover, without in any way denigrating the importance of regular school attendance, we note that a violation of ED §7-301(e)(1) involves no threat to life, property, or public peace, nor is the offense "infamous." Indeed, we are confident that, if the offense of driving under the influence of alcohol does not give rise to a jury trial right, as the Court of Appeals suggested in Fisher, neither does the offense of harboring a truant school child. Rather, in the words of Glenn, a violation of ED §7-301(e)(1) is a "minor and statutory police offense", precisely the kind of crime for which summary trial is constitutional.

C. Application to ED §7-301(e)(2)

Under ED §7-301(e)(2), "[a]ny person who has control of a child . . . and who fails to see that the child attends school. . . [is] subject to a fine not to exceed $50 per day of unlawful absence or imprisonment not to exceed 10 days, or both." Two cases currently awaiting argument in the Court of Special Appeals involve, among other issues, the question of whether the phrase "imprisonment not to exceed 10 days" states an absolute maximum or instead authorizes up to 10 days' imprisonment "per day of unlawful absence" together with the $50 per day fine. Appellant's Brief at 25-26, In re Jeannette L., No. 1032 (Sep. Term, 1986); Appellant's Brief at 19, In re Shirley R., No. 1033 (Sep. Term, 1986).8

This issue of statutory construction must be resolved before an assessment of the constitutional issue can be undertaken, for if the statute authorizes 10 days' imprisonment per day of absence, quite lengthy sentences would be possible.9 However, in accordance with our longstanding policy, we decline to address in an opinion a matter that is currently before the courts.

IV
Jury Trial Right on Appeal

A. Case Law

The cases discussed in Part III above all dealt with a defendant's right to a jury trial at the initial trial stage. Applying those cases, we conclude that no such right attaches to charges under ED §7-301(e)(1).

However, the Court of Appeals has suggested that, for some offenses, a defendant who did not have a right to a jury trial at the initial stage nevertheless might have that right at the appeal stage. Kawamura, 299 Md. at 290-91; Danner, 89 Md. at 226. A defendant convicted in District Court of a violation of ED §7-301(e)(1) has a statutory right to a jury trial on appeal; a defendant convicted in juvenile court does not. See Part I C above. Therefore, we must address the question of whether a defendant convicted in juvenile court has a constitutional right to a jury trial on appeal.

Our difficulty is that the Court of Appeals has never delineated this theoretical category of offenses. In Danner, the Court merely characterized such offenses as "misdemeanors of minor importance." 89 Md. at 227.

Despite the ill-defined bounds of a category of offenses to which a constitutional jury trial right attaches only at the review stage, we are convinced that this category does not embrace all minor criminal offenses. That is, the Declaration of Rights permits both trial and appeal of some criminal offenses without jury trial at either stage.

In our view, State v. Glenn strongly supports this conclusion. Although the disorderly conduct offense involved in Glenn carried with it a statutory right to a jury trial on appeal, the Court of Appeals' rationale was that this offense, like others, could be tried summarily even if there were no such opportunity on appeal:

"[These] statutes have all co-existed with the several Constitutions of the State; and in the various cases that have occurred, involving their provisions, we have never heard it contended that the proceedings thereby authorized were not constitutional, because the jury trial was not provided for, either in the first instance or by an appeal." 54 Md. at 604 (emphasis added).10

Glenn cites, for example, a statute, enacted only a year after the adoption of the Declaration of Rights, under which a justice of the peace had "power of conviction and imprisonment . . ., without appeal." 54 Md. at 603 (citing Chapter 6, Laws of Maryland 1777).

This is not an isolated example. Glenn relied on an extensive record of summary punishment under English and Maryland statutes. 54 Md. at 600-02.11 Notwithstanding the newly adopted jury trial right in the Declaration of Rights, the early General Assembly enacted laws for summary trial, with no appeal, of offenses such as vagrancy and prostitution.12

Both Glenn and later cases approve this mode of summary procedure for some minor offenses. In State v. Loden, 117 Md. 373 (1912), for example, the defendant attacked the constitutionality of a criminal statute prohibiting the operation of a motion picture machine without a license. The statute carried a penalty of up to a $50 per day fine and imprisonment up to 90 days, to be imposed by a magistrate or justice of the peace. Chapter 693, Laws of Maryland 1910. The defendant complained that the statute violated the Maryland Constitution because "it vests complete summary jurisdiction in police magistrates and justices of the peace ... to try and punish violations under it, without providing for trial by jury or for any appeal to a higher Court." 117 Md. at 376. But the Court of Appeals, relying primarily on the analysis in Glenn, was "unable to find that the jurisdiction conferred upon justices of the peace by the statute here questioned violates the constitutional provisions" pertaining to jury trial. 117 Md. at 386.

In short, the Declaration of Rights permits a defendant to be denied a jury trial altogether if, but only if, the offense charged is comparable in its character and punishment to those minor offenses that, historically, were tried without a jury at any level. To conclude otherwise would, in effect, transform the constitutional right into one that would be limitless in its scope, despite a century of case law that has carefully preserved the historical limits of the right.13 "It could never have been intended to embrace every species of [criminal] accusation. . . ." State v. Glenn, 54 Md. at 606.

B. Application to ED §7-301(e)(1)

A violation of ED §7-301(e)(1) is, in our view, somewhat less serious than the disorderly conduct offense sustained by the Court of Appeals in Glenn or than the other offenses that historically were prosecuted summarily, without jury trial initially or on appeal (indeed, without any appeal at all).14 And, while the offense is intrinsically more serious than the licensing violation involved in State v. Loden, the maximum term of imprisonment authorized by the statute in Loden was three times the maximum authorized by ED §7-301(e)(1). Therefore, although the question is not free from doubt, we conclude that the courts would analyze a violation of ED §7-301(e)(1) under the standards of Glenn and Loden and would find no constitutional right to a jury trial at any level.

We are not at all suggesting that constitutional guarantees are, in general, irrevocably bound to their original contours. On the contrary, the Constitution is "a continuing instrument of government," the "fundamental purposes" of which are to be carried out through adaption to circumstances that the framers could not have envisioned. United States v. Classic, 313 U.S. 299, 316 (1941). But the jury trial right, perhaps more than any other constitutional guarantee, has been applied consistently by the courts in terms of its historical antecedents and confines. Viewed in this context, we believe that a person convicted at the initial trial level of a violation of ED §7-301(e)(1) has no constitutional right to a jury trial on appeal.

V
Conclusion

In summary, it is our opinion that a defendant charged in juvenile court with violation of ED §7-301(e)(1) has no right to a jury trial, either at the initial trial level or on appeal.

We recognize the anomaly here. A prosecutor can, by lodging charges in juvenile court instead of District Court, deprive a defendant of any jury trial right. We know of no other instance in which this result is possible.15 Moreover, the sequence of legislative changes concerning this offense suggests that the General Assembly might not have considered the question of a jury trial for a juvenile court defendant facing jail time.16 Accordingly, we urge the General Assembly to reassess whether all defendants charged with a violation of ED §7-301(e) should not have the same statutory entitlement to a jury trial.

J. Joseph Curran, Jr., Attorney General
Jack Schwartz, Chief Counsel
Opinions and Advice

Mary C. Keane, Staff Attorney

Editor's Note: Since the issuance of this opinion, the Court of Special Appeals has confirmed that CJ §3-804(d) "confers upon a prosecutor the absolute discretion to determine whether an adult who is accused of violating the compulsory public school attendance laws is to be charged in the district court or juvenile court." In re Jeannette L., 71 Md. App. 70, 80 (1987). The court expressed no opinion about the constitutionality of this provision. With respect to the term of imprisonment authorized by ED §7-301(e)(2), the court held that the provision "allows but one term of no more than ten days." 71 Md. App. at 88.

1 Accordingly, a request for transfer of such a case from juvenile court to circuit court for the purpose of a jury trial may be denied.

2 Except in Montgomery County, the circuit court sits as juvenile court. In Montgomery County, the District Court does so. CJ §3-801(i). As the memorandum accompanying your request points out: "This jurisdiction is distinct from the civil jurisdiction conferred over a child alleged to be in need of supervision because the child is 'habitually truant' ([CJ] §§3-801(f) and 3-804(a)) and from the criminal jurisdiction over an adult who [renders a child in need of supervision] (§§3-804(c) and 3-831)." Memorandum from Elizabeth B. Veronis, Legal Officer, to Robert W. McKeever, Deputy State Court Administrator, at 1 (July 23, 1986).

3 The maximum imprisonment authorized by ED §7-301(e)(2) is an issue in pending litigation. See Part III C below.

4 The jury trial right in the Sixth Amendment to the United States Constitution is discussed in note 7 below.

5 The Court summarized as follows the historical background: "In England, notwithstanding the provision in the Magna Charta . . . which declares that no free man shall be taken, imprisoned or condemned, 'but by lawful judgment of his peers or by the law of the land,' it has been the constant course of legislation in that kingdom, for centuries past, to confer summary jurisdiction upon justices of the peace for the trial and conviction of parties for minor and statutory police offenses; and this jurisdiction has been largely increased and extended in modern times. . . ." 54 Md. at 600.

6 Other early cases include State v. Stafford, 160 Md. 385 (1931) (jury trial right attaches at initial trial level for assault and battery); Crichton v. State, 115 Md. 423 (1911) (no jury trial right in first instance for charges of speeding violations); and Baum v. Warden of Jail, 110 Md. 579 (1909) (under Glenn and Danner, justice of the peace has no jurisdiction to try defendant for assault and battery unless jury trial waived).

7 We note that, under the Sixth Amendment to the United States Constitution (applied to the states through the Fourteenth Amendment), the length of the maximum authorized term of imprisonment for an offense is generally determinative of the right to trial by jury. See, e.g., Baldwin v. New York, 399 U.S. 66, 68-69 (1970) ("In deciding whether an offense is 'petty,' we have sought objective criteria reflecting the seriousness with which society regards the offense . . . and we have found the most relevant such criteria in the severity of the maximum authorized penalty .... [W]e have concluded that no offense can be deemed 'petty' for purposes of the right to trial by jury where imprisonment for more than six months is authorized."); Frank v. United States, 395 U.S. 147, 148 (1969) ("The most relevant indication of the seriousness of an offense is the severity of the penalty authorized for its commission."); and Duncan v. Louisiana, 391 U.S. 145, 161 (1968) ("It is doubtless true that there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provision and should not be subject to the Fourteenth Amendment jury trial requirement here applied to the States. Crimes carrying possible penalties up to six months do not require a jury trial if they otherwise qualify as petty offenses."). Hence, a defendant charged with a violation of ED §7-301(e)(1) has no Sixth Amendment right to a jury trial. Cf. note 9 below.

8 The juvenile court in these two cases evidently viewed ED §7-301(e)(2) as authorizing up to 10 days' imprisonment per day of absence. Perhaps as a consequence of this interpretation of the statute, the juvenile court also granted the defendants' requests for jury trials.

9 The aspect of ED §7-301(e)(2) that authorizes a $50 fine per day of absence itself raises a separate constitutional question. Because the fine under ED §7-301(e)(2) is open-ended, we cannot exclude the theoretical possibility that a defendant who faced a very large fine would have a federal constitutional right to jury trial. See Muniz v. Hoffman, 422 U.S. 454, 476 (1975). However, we think that this question would arise only if the potential fine exceeded $1,000. See State v. Baumert, 618 P.2d 1078, 1081 (Ariz. 1980); Seven Rivers Farm v. Reynolds, 508 P.2d 1276, 1282 (N.M. 1973); People v. Cruz, 492 N.Y.S.2d 872, 880 (N.Y. Crim. Ct. 1985). But see Douglass v. First Nat. Realty Corp., 543 F.2d 894, 902 (D.C. Cir. 1976).

10 Two distinguished commentators described the holding in Glenn as follows: "The Act in question . . . did in fact afford an opportunity to the defendant for a jury on appeal. The court, however, sustained the constitutionality of the statute without any reference to this formal opportunity and relied on the historical indications of the summary process." Frankfurter and Corcoran, Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury, 39 Harv. L. Rev. 917, 960 n. 219 (1926).

11 Blackstone, cited approvingly in Glenn, described summary proceedings in which "there is no intervention of a jury, but the party accused is acquitted or condemned by the suffrage of such person only, as the statute has appointed for his judge." 4 W. Blackstone, Commentaries 280 (emphasis added). These proceedings include "divers petty pecuniary mulcts and corporal penalties denounced by the Act of Parliament for many disorderly offences; such as common swearing, drunkenness, vagrancy, idleness, and a vast variety of others. . . ." Id. at 281. See also A. Thomas, Procedure in Justice Cases, 261-62 (1905) ("In the case of many minor offenses that could always be reached by summary proceedings before Justices, a jury trial cannot be demanded . . . When summary jurisdiction is conferred on Justices, and the statute conferring jurisdiction does not give the party charged with the offense the right to a jury trial, it does not exist.").

12 See, e.g., Chapter 15, Laws of Maryland 1785, §15 (vagrancy in Talbot County punishable by commitment to workhouse for up to three months); Chapter 44, Laws of Maryland 1789, §24 (vagrancy and prostitution in Baltimore City punishable by hard labor for up to one year).

13 As the Supreme Court wrote: "In the face of. . . history, we find it impossible to say that a ninety-day penalty for a petty offense, meted out upon a trial without a jury, does not conform to standards which prevailed when the Constitution was adopted, or was not then contemplated as appropriate notwithstanding the constitutional guarantee of a jury trial. This conclusion is unaffected by the fact that respondent is not entitled to an appeal as a right." District of Columbia v. Clawans, 300 U.S. 617, 626-27 (1937). See also State v. Shak, 466 P.2d 422, 427 (Haw. 1970). Cf. McKane v. Durston, 153 U.S. 684, 687 (1894) ("A review by an appellate court of the final judgment in a criminal case, however grave the offense of which the accused is convicted, was not at common law, and is not now, a necessary element of due process of law.")

14 See notes 11 and 12 above and accompanying text.

15 Indeed, the potential denial of a jury trial raises equal protection concerns. However, we cannot conclude, in the abstract, that no rational basis for the distinction is conceivable.

16 Prior to 1984, prosecutions under the compulsory school attendance law were within the District Court's exclusive jurisdiction. CJ §4-301(b)(1). In Chapter 664, Laws of Maryland 1984, the General Assembly granted concurrent jurisdiction to the juvenile court and the District Court. At the time, however, violations of ED §7-301(e)(1) and (2) were punishable by a fine only. Violations of ED §7-301(e)(1) and (2) became punishable by imprisonment a year later. Chapter 205, Laws of Maryland 1985.