Opinion
No. 321, September Term, 1974.
Decided December 20, 1974.
JUVENILE PROCEEDINGS — Constitutionality Of Enforcement Clause Under Courts Art., § 3-839 Wherein Liability Is Imposed Upon Parents Of Delinquent Found Child — Enforcement By Contempt — Prematurity Of Issue — Constitutional Question Not Entertained In Advance Of Strictest Necessity — Parent, In Instant Case, Although Incurring Debt Through Order Of Court To Make Full Restitution Had Not Been Held For Contempt For Violation Nor Was Payment Of Restitution Order Otherwise Enforced. Hence Charge As To Constitutionality Of Provision Is Premature. p. 83
JUVENILE PROCEEDINGS — Restitution Provision Under Courts Art., § 3-839 — Apportionment Of — Right Of Contribution — Liability Comparable To That Of Joint Tort-Feasor — Statute Limits Parent's Liability To Specific Dollar Amount Not To Pro Rata Share Of Mischief Accomplished By Juvenile Offender — Where Joint Restitution Is Prescribed Against Another Or Parents Of A Co-Delinquent, Contribution May Be Sought — Notwithstanding Right Of Contribution Restitution Ordered Should Assure Injured Payment Within Prescribed Limit In Manner Comparable Of Joint Tort-Feasor — Recovery Intended To Follow Ability Of Parent To Pay. pp. 84-85
H.E.F.
Appeal from the Circuit Court of Baltimore City, Division of Juvenile Causes (HAMMERMAN, J.).
Parents of juvenile, found to be delinquent, were ordered to make restitution in full to injured party. From the restitution order, the parent appeals.
Judgment affirmed.
The cause was argued before POWERS, GILBERT and LOWE, JJ.
Solomon Reddick, Assistant Public Defender, for appellant. Bernard A. Rauin, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State's Attorney for Baltimore City, and David Katz, Assistant State's Attorney for Baltimore City, on the brief, for appellee.
The juvenile appellant was found to be delinquent for having broken into a grocery store in company with another. On the same date that he was found delinquent, his mother was ordered to make full restitution. While acknowledging the constitutionality of the vicarious liability imposed upon parents by Courts Art. § 3-839, Matter of Sorrell, 20 Md. App. 179, on this appeal she enticingly questions the constitutionality of the enforcement clause of that section which gives the court:
". . . full power to cite for contempt for a violation thereof if the facts of a particular case before him indicates sufficient ability of such parent to comply with such order."
Appellant argues that the exercise of contempt power to enforce a money judgment violates Art. III, § 38 of the Maryland Constitution, prohibiting imprisonment for debt. The only exception to that prohibition is for the support of a wife or dependent children. That exception was provided for by constitutional amendment as part of § 38.
Enforcement by Contempt
Unfortunately the mother's argument is premature. Although the debt was incurred, she has not been held in contempt for violation nor has payment of the restitution order been otherwise enforced. Consequently she is unharmed and unaffected, and her argument is only hypothetically posed on the basis of what might eventually happen. "The best teaching of judicial experience admonishes us not to entertain constitutional questions in advance of the strictest necessity." Minner v. Minner, 19 Md. App. 154, 158 quoting Wilkins v. State, 16 Md. App. 587, 598; see also United States v. Raines, 362 U.S. 17, 21. Intriguing as it appears, the issue must await determination until it comes to us on surer footing.
Affirmed by the Ct. App. in Wilkins v. State, 270 Md. 62.
The generally awkward posture in which the case is presented to us crystallizes the inherent procedural complications of the novel concept of vicarious liability. It is incongruously codified as a juvenile cause, appears to be a civil judgment, and is enforceable by incarceration. Further evidencing that incongruity, if further evidence is needed, is the peculiar position of the delinquent's mother as a party appellant represented by the Public Defender assigned to defend her son, who, on her behalf, attacks a money judgment against her. Before exercise of the enforcement clause would have been possible (as noted, its exercise was a pre-condition to a justiciable controversy here) the statutory requirement that the mother be shown to possess "sufficient ability . . . to comply with [the] order . . ." must have been met. Any such finding would hardly be compatible with the indigency prerequisite to her present representation by a public defender.
Apportionment of Restitution
The second question raised is far more ingenuous. Since the juvenile appellant's cohort was not before the court, the entire loss was assessed to the mother who now argues that she should be responsible only for so much of the loss as was attributed to her son. We do not agree. The statute limits such parent's liability only by a dollar amount, i.e., one thousand dollars, not to a pro rata share of the mischief accomplished by the juvenile. In the event joint restitution is prescribed against another, or the parents of a co-delinquent, contribution may be sought. Notwithstanding the right to such contribution the restitution so ordered should assure the injured of payment within the prescribed limit in a manner comparable to the liability of a joint tort-feasor Were we to rule otherwise, only partial restitution would be had where a co-delinquent's parent was without the ability to pay. That the recovery was intended to follow the ability to pay, is comprehended by the Legislature's restriction of the questioned enforcement clause to parents "with sufficient ability . . . to comply." The vicarious liability is imposed as a consequence of a presumed neglect of parental responsibilities, but it is aimed at restoring a measure of the injury incurred.
Judgment affirmed.