Eagan v. Ayd

ADKINS, Judge.

The defendant in a paternity action refused to submit to a blood test ordered by the Circuit Court for Harford County (Carr, J.) pursuant to Md.Code (1984) § 5-1029 of the Family Law Article. Judge Carr held that the refusal constituted contempt of court. The defendant now insists that the court lacked the power to hold him in contempt. We disagree and affirm the judgment of the circuit court.

There is no dispute about the factual framework of the question before us. Appellee, Clarissa Ayd, initiated a *267paternity action in the Circuit Court for Harford County against appellant, Frederick M. Eagan, alleging that Eagan was the father of Ayd’s minor daughter. With the complaint Ayd filed a § 5-1029 motion for a blood test. The court ordered Eagan to submit to the test. Eagan, nonetheless, failed to appear for the test, and eventually the court issued an order finding him in civil contempt of court for his failure to comply with the blood-test order. The contempt order further provided that “Frederick Eagan shall submit to a blood test within five days of the date of this Order to purge himself of his contempt ... [or] be committed to the jurisdiction of the Harford County Detention Center____”1

Eagan adamantly refused to take the blood test, and appealed the contempt order to the Court of Special Appeals. We granted certiorari on our own motion prior to decision by the intermediate appellate court.

Section 5-1029, the focus of controversy in this appeal, in pertinent part provides:

(a) On the motion of a party to the [paternity] proceeding or on its own motion, the court shall order the mother, child, and alleged father to submit to blood tests to determine whether the alleged father can be excluded as being the father of the child.
sje * * * % sf;
(e)(1) The results of each blood test shall be received in evidence if:
(i) definite exclusion is established; or
(ii) the testing is sufficiently extensive to exclude 97.3% of alleged fathers who are not biological fathers, and the statistical probability of the alleged father’s paternity is at least 97.3%.
*268(f) If any individual fails to submit to a blood test ordered by the court, that refusal, properly introduced in evidence:
(1) shall be disclosed to the court and jury; and
(2) may be commented on by the court or by counsel.

Eagan’s principal contention is that the sanctions available for failing to take the court-ordered blood test are limited by § 5-1029(f) to disclosure to the court and jury and comment by the court or by counsel. Ayd counters by asserting that “[§] 5-1029(f) ... is not an attempt [by] ... the legislature to limit the powers of the court to punish for contempt.” Brief at 7. Alternatively, Ayd argues that the court has an inherent power to hold Eagan in contempt and one which the legislature has no power to limit.

In order to evaluate these arguments, we must ascertain the legislative intent of § 5-1029, and we must do so within the context of the paternity statute of which it is a part. Our primary task in this regard is to determine the legislative goal or purpose of the statutory provisions. Kaczorowski v. City of Baltimore, 309 Md. 505, 513, 525 A.2d 628, 632 (1987). Kaczorowski teaches that in this endeavor we are “not limited to the words of the statute [but] ... may and often must consider other ‘external manifestations’ or ‘persuasive evidence’____” Id. at 514-515, 525 A.2d at 632. We begin this task by a brief historical review of the subject which is now designated “Paternity Proceedings,” but which until 1963 was referred to under the heading of “Bastardy” or “Bastardy and Fornication.”

According to one authority, “[proceedings for redress in cases of bastardy are wholly matter[s] of statutory regulation.” L. Hochheimer, The Law of Crimes and, Criminal Procedure § 271 (2d ed. 1904) [footnote omitted]. In Maryland, that regulation began at least as early as 1715. Under Ch. 27 of the Acts of that year, “Women who have Bastards, and do refuse to discover the Father or Begetter of such Children” could be punished by “Whipping upon ... their bare Bodies, till the Blood do appear, [by] so many *269Stripes not exceeding Thirty nine____” The Laws of the Province of Maryland 88-89 (Cushing facsimile ed. 1978). Chapter 13, Acts of 1781 established somewhat more elaborate procedures, but without the corporal punishment. The basic functioning of that law was for a woman who had allegedly borne an illegitimate child to be summonsed before a justice of the peace. She was then required to post security to indemnify the county for any cost of supporting the child, and if she did not post the security, she would be jailed. But if she named the father of the child, she was discharged. The putative father was then called before the justice and the father, in his turn, was required to post security. If aggrieved by that judgment, he was entitled to seek a jury trial in the county court, “as in other criminal cases.” Id.

One purpose of these laws was, of course, to prevent the county from having to bear the full cost of supporting an illegitimate child. The other was to punish fornication, and the laws were deemed criminal in nature. Bake v. State, 21 Md. 422, 425-426 (1864); Owens v. State, 10 Md. 164, 168 (1856); Oldham v. State, 5 Gill 90, 93 (1847).2 And the criminal bastardy laws still were in effect in 1941 when Article 12, § 17 of the code (the predecessor to § 5-1029) came into being. Overall, Article 12 bore considerable resemblance to the 1781 statute, but § 17 was an innovation.

The new section was enacted in order to give the court the benefit of a relatively new scientific tool—the use of blood tests to prove nonpaternity. Bowen, “Blood Tests and Disputed Parentage,” 18 Md.L.Rev. Ill, 115 (1958) (hereinafter Bowen). It provided:

*270Whenever the defendant in bastardy proceedings denies that he is the father of the child, upon the petition of the defendant, the court shall order that the complainant, her child and the defendant submit to such blood tests as may be deemed necessary to determine whether or not the defendant can be excluded as being the father of the child. The result of the test shall be received in evidence, but only in case definite exclusion is established____ If the complainant or her child fail to submit to the blood tests ordered by the court to be taken, such fact, when properly adduced by evidence, shall be disclosed to the court and jury, and may be commented upon by the court or by counsel to the jury or to the court when sitting as a jury [emphasis supplied].

This new addition was patently for the benefit of the defendant. Shanks v. State, 185 Md. 437, 449, 45 A.2d 85, 90 (1945); Bowen, 18 Md.L.Rev. at 116-117. The new law made no mention of contempt as a sanction for failure to take the test, but it is obvious that the defendant would be a most unlikely subject for that sanction, since he was the one who would request the test, and since the test could not be placed in evidence if its results were adverse to him. It is true, nevertheless, that there was likewise no mention of the use of contempt against a mother who disobeyed the court’s order. The only sanctions mentioned were disclosure of the failure to be tested to the jury, and comment on that failure. This is true despite the fact that only two years earlier the General Assembly had enacted Article 12, §§ 5 and 6, which authorized the State’s Attorney to procure the attendance of anyone except the defendant for investigation of bastardy charges and which allowed that officer to enforce obedience to his commands by seeking a contempt order in court. 1939 Md.Laws, Ch. 182 at 301. These provisions are now in § 5-1019 of the Family Law *271Article.3

Putting aside insubstantial amendments, the next major change came via Ch. 722, Acts of 1963. This law among other things repealed Article 12, “Bastardy and Fornication,” for the purpose of “entirely revising the laws of this State concerning bastardy and fornication and paternity proceedings; vesting in the several equity courts of this State jurisdiction to hear and determine all such paternity proceedings; [and] providing generally for such jurisdiction and the procedure for its exercise____” 1963 Md.Laws, Ch. 722.

By this Act, criminal “Bastardy” became civil “Paternity.” Despite that change, however, the new law carried forward many of the substantive provisions of old Article 12. The power of the State’s Attorney to enforce his investigatory authority through contempt (except as to the defendant) was retained in Article 16, § 66D. And old Article 12, § 17 became, with only one minor change, Article 16, § 66G.4 But some other more significant statutory changes were made. A provision was added to the effect that the defendant was not required to answer the complaint against him (§ 66E(f)—now § 5-1012 of the Family Law Article). The defendant could not be compelled to testify (§ 66F(b)—now § 5-1028(d) of the Family Law Article). No comment could be made on the defendant’s failure *272to testify (§ 66F(d)—now § 5-1027(c) of the Family Law Article). We shall analyze these statutory protections for the defendant shortly. For now, we need note only that the apparent pro-male tilt they seem to suggest (a slant quite consistent with the early history of paternity laws) is belied by the basic goals of the 1963 legislation.

The Commission to Study Problems of Illegitimacy among the Recipients of Public Welfare Monies in the Program for Aid to Dependent Children (hereinafter the Commission) concerned itself with bettering the plight of the illegitimate child, and the 1963 statute was the Commission’s legitimate offspring. See Final Report of the Commission on the Problems of Illegitimacy 12-14 (6 December 1961) (hereinafter Commission Report). The Commission’s recommendations were made with that concern in mind and “with the hope that if adopted, illegitimacy will be curtailed and amelioration of the effects of illegitimacy on children and the community at large will result.” Commission Report at 22.

The Commission considered the then-existing criminal bastardy laws inadequate because in its view

not only do many men now escape any responsibility for the maintenance of their illegitimate children, but the present law is also inadequate from the Commission’s viewpoint because it neither makes provision for inquiry into the child’s custody and welfare, nor provides for a determination of the mother’s obligation to support.

Id. [emphasis supplied]. It saw the criminal laws as an impediment to holding men responsible for the maintenance of their illegitimate children:

To establish paternity and provide for the child’s support, the state must “beyond a reasonable doubt,” prove the man’s “guilt”; and in so doing it is restricted by technicalities of the criminal law as to time limitations, situs of the act of fornication, and inadmissibility of a married woman’s testimony as to any bastard born to her.

*273Id. Thus, a major goal of the 1963 legislation was to remove some of the legal impediments to establishing paternity.

In 1976 the General Assembly took further action to enhance effective recovery of child support payments. Chapter 778 of the Acts of that year, entitled “Children— Support Enforcement,” enacted comprehensive provisions looking to that end. Among them was an amendment to Article 16, § 66G that allowed, for the first time, the sanctions for failure to take a blood test to be applied to the defendant in a paternity action. See 1976 Md.Laws, Ch. 778 at 2155. This small change included in a major bill dealing with creation of the Division of Child Support Enforcement was followed by much more significant legislation in 1982.

Improvements in blood-testing technology had produced the Human Leukocyte Antigens (HLA) test. Its proponents contended that this test could do more than merely exclude a given defendant as a putative father. The legislature, in apparent agreement, responded by enacting Ch. 784, Acts of 1982. Haines v. Shanholtz, 57 Md.App. 92, 95-96, 468 A.2d 1365, 1366, cert. denied, 300 Md. 90, 475 A.2d 1201 (1984). It amended Art. 16, § 66G to essentially the present form of § 5-1029.5 Now, any party may request a blood test (subsection (a)). Moreover, the test is admissible not only if it excludes the defendant as father, but also “if ... the testing is sufficiently extensive to exclude 97.3% of alleged fathers who are not biological fathers, and the statistical probability of the alleged father’s paternity is at least 97.3%” (subsection (e)). By Ch. 551, Acts of 1984, the section was further amended to eliminate the court’s discretion to reject a qualifying blood test. A test that meets the standards of subsection (e) “shall be received in evidence” [emphasis supplied]. But like the earlier blood test provisions, there is no mention of the use of contempt to enforce *274a blood-test order. And, what is now subsection (f) remains much the same as it has read since 1941.

Does this history force us to agree with Eagan that the legislature, by adoption of what is now subsection (f), intended that disclosure of refusal to take a test and comment on that failure are the only permitted sanctions for one who flouts a court order? We believe not.

We are aware that one scholar has written that the legislative provision for comment on failure to take a blood test “seems to imply that no further sanctions may be used.” Bowen, 18 Md.L.Rev. at 147. See also “Survey of Developments in Maryland Law, 1983-1984,” 44 Md.L.Rev. 254, 562-563 (1985) (hereinafter “Survey”) (“[t]he implication of these provisions ... is that ... compulsory testing is not available in paternity proceedings”). But Mr. Bowen also suggested that the “inherent power” of a Maryland court “to enforce its orders ... might be upheld” in the context of a paternity blood test. 18 Md.L.Rev. at 117. And in 1958, when he wrote, the testing was available only at the defendant’s behest. As we have explained, the legislature scarcely could have contemplated a contempt sanction for the defendant under those circumstances. As to the “Survey,” the student authors provided no extensive reasoning or authority to support its conclusion.

We recognize, too, that in Adams v. Mallory, 308 Md. 453, 464, 466, 520 A.2d 371, 377, 378 (1987), we said that “[m]any of the [paternity] statute’s provisions are designed to ensure that the alleged father is not compelled to present evidence” and that “the paternity statute embodies the principle that an alleged father may not be officially coerced to give evidence.” But these statutory privileges in favor of the defendant were, as we have already observed, mostly added in 1963 when “Bastardy” was decriminalized. They reflect a legislative view favoring the putative father, but only to the extent of retaining for his benefit something akin to the privilege against self-incrimination that applied before the proceeding became a civil one.

*275Even in a criminal case, however, a compulsory blood test does not infringe upon the privilege against self-incrimination. Schmerber v. California, 384 U.S. 757, 760-765, 86 S.Ct. 1826, 1830-1833, 16 L.Ed.2d 908, 914-917 (1966); Adams, supra, 308 Md. at 465 n. 17, 520 A.2d at 377 n. 17; Davis v. State, 189 Md. 640, 644-646, 57 A.2d 289, 290-292 (1948). Moreover, evidence of refusal to take a blood test is not constitutionally barred in the criminal setting. South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983). There is no reason to extend this legislative largesse to situations beyond its original scope.

And despite possible inferences that might be drawn from Adams, the goal of the paternity law is not to benefit putative fathers. We have identified the early view that one purpose was to lessen the burden on the public fisc. We have noted the 1963 emphasis on easing the task of holding men responsible for support of their illegitimate children, and the 1976 enlargement of effective procedures for child support recovery.6 A more contemporary Maryland perspective, however, focuses on the 1982 amendments that followed the development of more accurate blood testing. One of the broader goals of those amendments “was to protect illegitimate children through court-ordered support based upon sophisticated and reliable genetic testing.” Haines v. Shanholtz, 57 Md.App. at 96, 468 A.2d at 1367. A second but perhaps related goal of this legislation was to “assist [the State] in arriving at more pre-trial settlements” in paternity cases and thus curtailing the expenditure of “court time, prosecutor time and staff time----” Senate Judicial Proceedings Committee file on S.B. 21 and S.B. 105 (1982) (testimony of George Sinclair at p. 2). Also see Haines, 57 Md.App. at 96, 468 A.2d at 1367.

*276Given these legislative goals and the fact that a test which complies with the conditions of § 5-1029(e) must be admitted into evidence, it seems fairly clear that the General Assembly did not intend to deprive the circuit courts of a vital means of procuring blood-test results—i.e., the contempt power. This reading of the statute accords with the legislative concern for protection of both the child and the political subdivision. See also § 5-1002 of the Family Law Article.7 It is consistent with the legislative abandonment of the blood test solely as a protection for the defendant. It fits the current provision that allows any party to insist on a test. And it sustains the general policy of the paternity law by tending to assure the production of reliable and important evidence. Moreover, as the “Survey” aptly states “[b]ecause the legal sufficiency of a case may depend upon the ability to present blood-test results, the capacity to compel an individual to submit to the tests is crucial.” “Survey,” supra, 44 Md.L.Rev. at 563.

We shall not assume that the General Assembly meant to subvert the general and beneficent purposes of the paternity law by curtailing, sub silentio, a court’s power to enforce its orders and to advance the search for truth by invoking the sanction of contempt. Consequently, we hold that the *277General Assembly did not mean to preclude the use of the contempt power to compel a reluctant defendant to submit to the test.8

Out-of-state authority provides support for our interpretation of § 5-1029. In In re Paternity of D.A.A.P., 117 Wis.2d 120, 344 N.W.2d 200 (App.1983), the trial court found a paternity defendant in civil contempt for refusing to submit to a court-ordered blood test and consequently ordered him to “submit to the blood test or spend ten days in the county jail.” Id. at 123, 344 N.W.2d at 202. On appeal the defendant challenged the contempt order claiming that the remedies set forth in Wis. Stat. Ann. § 767.47(3) (West 1981) (precluding the defendant from introducing evidence of the plaintiffs intercourse with a man other than himself until he “has undergone and made available to the court blood tests as provided in § 767.48”) and § 767.48(4) (requiring disclosure to the fact-finder if any party “refuses to submit to the blood test”) were exclusive remedies.

The court rejected these contentions pointing out that while this court agrees with A.W.O. that statutes are to be construed and harmonized so as to give each full force and effect, ... we do not agree that the availability of the contempt power for refusing to submit to lawfully ordered blood testing necessarily renders the sanctions specified under secs. 767.47 (3) and 767.48 (4) superfluous. We construe and harmonize the contempt powers under ... these ... provisions by holding that the sanctions specified under secs. 767.47(3) and 767.48(4) are available in addition to a court’s power to find a party in contempt.
A court’s power to hold in contempt, although inherent, is discretionary. Upon refusal of a party to submit to a court-ordered blood test, a court may in the exercise of its discretion hold the party in contempt; it may also decline *278to do so. Regardless of the court’s finding of contempt, the sanctions set out under secs. 767.47(3) and 757.48(4) ... continue to apply in the event that the putative father refuses to take the test.

Id. at 126-127, 344 N.W.2d at 203-204 [citations omitted].

What, then, of § 5-1029(f)? We restate its language:

(f) If any individual fails to submit to a blood test ordered by the court, that refusal, properly introduced in evidence:
(1) shall be disclosed to the court and jury; and
(2) may be commented on by the court or by counsel.

Does our decision leave this as meaningless surplusage? Not at all.

There may be circumstances when a blood test has been ordered, but when the sanction of contempt cannot be used for effective enforcement. For example, if the court orders a defendant to be tested, but the defendant thereafter disappears, an effort to impose contempt sanctions would be of no avail. And a defendant subject to a contempt order might nevertheless refuse to obey. Under either of these circumstances, subsection (f) could be invoked.

In other situations, a party might conclude not to seek the sanction of contempt against a recalcitrant opponent. Here again, subsection (f) would be available as “a not inconsequential sanction____” Regiec v. Stogo, 72 Md.App. 311, 313, 528 A.2d 545, 546 (1987). That the legislature has provided an alternative sanction does not, for the reasons we have given, deprive the court of its authority to enforce an order by use of the contempt power.9 See In re Paternity of D.A.A.P., supra, 117 Wis.2d at 126-127, 344 N.W.2d at 203-204.

*279Since we have held that the General Assembly did not intend to preclude the use of the contempt power to compel blood testing under § 5-1029, we need not decide whether the legislature could have prohibited the sanction of contempt under this section, had it wished to do so. There are certainly decisions that lend force to the argument that the contempt power is inherent in a court, and cannot be legislatively limited. See, e.g., Baltimore Radio Show, Inc. v. State, 193 Md. 300, 320-323, 67 A.2d 497, 506-507 (1949); In Re Lee, 170 Md. 43, 47, 183 A. 560, 562, cert. denied, 298 U.S. 680, 56 S.Ct. 947, 80 L.Ed. 1400 (1936); Kelly v. Montebello Park Co., 141 Md. 194, 205, 118 A. 600, 604 (1922); Ex Parte Maulsby, 13 Md. 625, 635 (1859); Pearson v. State, 28 Md.App. 464, 479-480, 347 A.2d 239, 248-249 (1975).

But even if there is doubt as to the applicability of the inherent power principle to the type of constructive contempt that is involved in this case, it is proper to construe a statute in a way that does not “give rise to doubts as to its constitutionality____” Heileman Brewing v. Stroh Brewery, 308 Md. 746, 764, 521 A.2d 1225, 1234 (1987). That is what we have done here. See also Davis v. State, 312 Md. 172, 179, 539 A.2d 218, 221 (1988); Yangming Transport v. Revon Products, 311 Md. 496, 509, 536 A.2d 633, 640 (1988); City of College Park v. Cotter, 309 Md. 573, 589, 525 A.2d 1059, 1067 (1987); In re Criminal Investigation No. 1-162, 307 Md. 674, 685, 516 A.2d 976, 982 (1986). As in Hitzelberger v. State, 173 Md. 435, 438, 196 A. 288, 290 (1938), “[w]hether the Legislature has the power to limit, extend, or declare contempts” is a question we need not decide here.

JUDGMENT OF THE CIRCUIT COURT FOR HAR-FORD COUNTY AFFIRMED. APPELLANT TO PAY THE COSTS.

. The contempt order was stayed pending the outcome of this appeal.

. We have equivocated a bit on the criminal nature of bastardy. Compare, e.g., Kennard v. State, 177 Md. 549, 553, 10 A.2d 710, 712 (1940) (technically not a criminal proceeding) with Feige v. Boehm, 210 Md. 352, 359, 123 A.2d 316, 321 (1956) (treated as criminal although civil in purpose) and the nineteenth century cases cited in the text to which this note is appended.

. Eagan asserts that because § 5-1019 explicitly provides for sanctions by way of contempt, the omission of such a provision from § 5-1029 manifests a legislative purpose to deny that remedy for refusal to take a blood test. We are not persuaded. A State’s Attorney has no inherent power to enforce his or her demands by finding people in contempt. Section 5-1019(c) and its statutory parents simply supply a mechanism to supply that lack. No similar authority is required with respect to orders issued by a court, because of a court’s inherent contempt power. See Dorsey v. State, 295 Md. 217, 227-228, 454 A.2d 353, 359 (1983). In view of that fact, Eagan’s contrast between § 5-1019 and § 5-1029 is of no particular significance.

. While old Article 12, § 17 allowed the court to order a blood test only at the defendant’s request, new Article 16, § 66G provided that the court could order the test on its own motion as well.

. The former Article 16 "Paternity” provisions were transferred to the Family Law Article by Ch. 296, Acts of 1984, without substantive change.

. A sister state sees its version of the Uniform Act on Paternity §§ 1-18, 9B U.L.A. 350 (Master ed. 1987), as “designed to give the mother a remedy to compel the putative father to contribute to the support of his illegitimate child.” Perry v. Commonwealth ex rel. Kessinger, 652 S.W.2d 655, 657 (Ky.1983).

. This section declares the legislative policy supporting the Paternity Subtitle thus:

§ 5-1002. Legislative Policy.
(a) The General Assembly finds that:
(1) this State has a duty to improve the deprived social and economic status of children born out of wedlock; and
(2) the policies and procedures in this subtitle are socially necessary and desirable.
(b) The purpose of this subtitle is:
(1) to promote the general welfare and best interests of children born out of wedlock by securing for them, as nearly as practicable, the same rights to support, care, and education as children born in wedlock;
(2) to impose on the mothers and fathers of children born out of wedlock the basic obligations and responsibilities of parenthood; and
(3) to simplify the procedures for determining paternity, custody, guardianship, and responsibility for the support of children born out of wedlock.

. It is not unusual for the legislature to contemplate alternative methods for enforcing its enactments. See, e.g., Goodyear Tire v. Ruby, 312 Md. 413, 425, 540 A.2d 482, 488 (1988).

. Nor does the fact that refusal to submit to the test might be admissible in evidence in a civil case, see Nast v. Lockett, 312 Md. 343, 368-369, 539 A.2d 1113, 1126 (1988), make it unreasonable for the legislature to make that result statutorily clear, in a statute that was originally applicable in a criminal proceeding.