Eagan v. Ayd

Dissenting opinion by ELDRIDGE, Judge, in which COLE and McAULIFFE, Judges, concur.

Under the majority opinion, whenever paternity defendants fail to submit to blood tests ordered under Maryland Code (1984), § 5-1029 of the Family Law Article, courts *280may ignore the sole sanction expressly set forth in that statute, and may generally enforce their orders through the sanction of civil contempt. This approach contradicts well-established rules of statutory construction, disregards the General Assembly’s long-standing policy favoring a person’s freedom to resist coercive governmental intrusion into his or her body, and places undue emphasis on an erroneous view of the inherent power of contempt. Consequently, I dissent.

I.

It is a well-established rule of statutory construction that the enumeration of one item ordinarily implies the exclusion of all others. Office & Prof. Employees Int’l v. MTA, 295 Md. 88, 96, 453 A.2d 1191, 1195 (1982); Sutherland, 2A Statutory Construction §§ 47.23, 47.24 (4th ed. 1984 rev.).1 Thus, when a legislative body creates a statutory right and establishes a specific remedy for enforcing that right, the legislative remedy normally is exclusive. See Johns v. Hodges, 62 Md. 525, 538 (1884); Sutherland, Statutory Construction, supra, § 47.23. See also Trust Co. v. Ward Baking Corp., 177 Md. 212, 220, 9 A.2d 228, 231 (1939).

In § 5-1029(f), the General Assembly provided only that a paternity defendant’s failure to submit to a blood test “shall be disclosed to the court and jury” and “may be commented on by the court or by counsel.” The Legislature enumerated no sanction other than this “negative inference.” Therefore, the statutory sanction is generally exclusive, and *281circuit courts ordinarily should not hold defendants in contempt for refusing to consent to a court-ordered blood test.

Had it intended that the contempt power be utilized under ordinary circumstances in cases like this, the General Assembly could easily have so provided. See State Insurance v. Nationwide, 241 Md. 108, 117, 215 A.2d 749, 754-755 (1966) (“Where a statute expressly provides for certain exclusions, others should not be slightly read therein by implication, for if the Legislature intends other exclusions it is so easy to add them ... ”). Indeed, five jurisdictions expressly empower their courts to hold a putative father in contempt for not obeying an order to submit to a blood test.2 Moreover, numerous statutes permit a trial court either to resolve the issue of paternity against a party refusing to take the test or to “enforce” its order.3 In fact, of the jurisdictions that prescribe any specific sanction at all *282for noncompliance with a blood test order,4 only a few states other than Maryland have not expressly given their courts the power to require an alleged father to obey a blood test order.5 Under these circumstances, the General Assembly’s failure to provide explicitly for any remedy other than the negative inference set forth in § 5—1029(f) strongly implies that the Legislature did not intend that paternity defendants ordinarily be held in contempt for refusing to submit to a court-ordered blood test.

The majority’s contrary interpretation of § 5-1029(f) turns the statute on its head. The General Assembly’s *283omission of any reference to contempt plainly indicates that it expected the primary sanction under § 5—1029(f) to be the negative inference. Under the majority’s view, however, a court is likely to resort to the negative inference only in the minority of cases when a paternity defendant either disappears or refuses to consent to a blood test despite a contempt order. Therefore, the majority’s construction thwarts rather than furthers the Legislature’s purposes.

II.

Notwithstanding its extensive review of legislative history, the majority is unable to produce any evidence indicating that the General Assembly ever contemplated that contempt should be an additional remedy under § 5-1029(f).* 12***6 Nonetheless, the majority argues that its conclusion advances the broad policy goals underlying the paternity statutes. According to this argument, the General Assembly did not *284intend to “benefit” or to “favor” putative fathers; instead, the Legislature sought to eliminate obstacles to a paternity plaintiffs recovery, thereby “ ‘protecting] illegitimate children,’ ” “ ‘assisting] [the State] in arriving at more pre-trial settlements,’ ” and “curtailing the expenditure of ‘court time, prosecutor time and staff time.’ ” 7 Contending that a contrary reading would “favor” defendants and “subvert the general and beneficent purposes of the paternity law,” the court concludes that “the General Assembly did not mean to preclude the use of the contempt power to compel a reluctant defendant to submit to [a blood] test.”

It is, however, incorrect to suppose that a paternity defendant is “favored” by a holding that the remedy for noncompliance with a blood test order is the negative inference expressly set forth in § 5-1029(f). Few types of evidence show consciousness of guilt or liability as strongly as a person’s failure to come forward with evidence which is peculiarly within his possession and which would prove the truth of his assertions. See generally II Wigmore on Evidence § 285 (J. Chadbourn rev. 1979). As a result, under § 5-1029(f), it is highly likely that a jury will return a plaintiff’s verdict after learning that the defendant had *285refused to submit to a blood test that could have disproved the plaintiffs allegations.8

In addition, the majority opinion contradicts our statement in Adams v. Mallory, 308 Md. 453, 466, 520 A.2d 371, 378 (1987), that “[t]he paternity statute embodies the principle that an alleged father may not be officially coerced to give evidence.” In reaching this conclusion, the Court explained (308 Md. at 464-465, 520 A.2d at 377): *286Moreover, in Adams v. Mallory itself, we held that a court may not enter a default judgment against a paternity defendant who fails to respond to interrogatories. 308 Md. at 467, 520 A.2d at 378.

*285“[T]he defendant is under no obligation to file a written answer to the complaint. Id. at § 5-1012(a) and (c). If he does not respond in writing or does not admit any of the material allegations of the complaint in open court, the court is required to enter a general denial of the complaint on his behalf. Id. at § 5-1012(c). It follows from this requirement of section 5-1012(c) that the court may not enter a default order or a default judgment if the alleged father does not answer the complaint. Cf. Md. Rules 2-302; 2-321; 2-323; 2-613.
“The same concept is recognized in the statute’s special discovery apparatus—the State’s Attorney’s pretrial inquiry. Id. at § 5-1019. Under this provision, the State’s Attorney may, before or after a complaint is filed, ‘issue a summons that requires a person, other than the alleged father, to appear, to testify, and to produce documents connected with the examination.’ Id. at § 5-1019(b)(l) (emphasis added)____
“At the trial itself, the ‘alleged father may not be compelled to give evidence.’ Id. at § 5-1028(d). No comment on or reference to his failure to testify is permitted. Id. at § 5-1027(c).”

*286The majority seems to view these protections as relics of the days when paternity proceedings were considered criminal in nature. Thus, according to the majority opinion, the prohibition against coercing a paternity defendant to produce evidence simply serves to guard a putative father’s constitutional privilege against self-incrimination. As the opinion points out, a compulsory blood test to produce evidence against a defendant has been held not to violate the Fifth Amendment’s guarantee against self-incrimination. Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830-1831, 16 L.Ed.2d 908 (1966).9 Therefore, the *287majority concludes that the legislative policy against compelling paternity defendants to produce evidence does not prevent courts from holding such defendants in contempt for not submitting to court-ordered blood tests.

The majority, however, fails to appreciate that, as to a person’s freedom to resist coercive governmental invasions of his or her body, the Maryland Legislature traditionally has granted statutory rights that are broader than the constitutional privilege against self-incrimination. For example, when it first permitted the introduction of blood-alcohol tests in prosecutions for driving under the influence of alcohol, the General Assembly expressly provided: “No person shall be compelled to submit himself or any part of his body or bodily substance for the purpose of a chemical analysis provided for in this section.” Ch. 769 of the Acts of 1959; Maryland Code (1957, 1965 Repl. Vol.), Art. 35, § 100(c). Furthermore, in 1969 the Legislature rejected the “implied consent” provision of the Uniform Vehicle Code. Instead, the General Assembly enacted Ch. 158 of the Acts of 1969, which provided that, as a condition precedent to the issuance or renewal of a driver’s license, Maryland residents were required to consent expressly to a test to determine the alcohol content of their blood, breath, or urine. Code (1957, 1970 Repl. Vol.), Art. 66V2, § 6-205.1(a). See generally State v. Moon, 291 Md. 463, 479-490, 436 A.2d 420, 428-434 (1981) (Davidson, J., dissenting). Moreover, while Ch. 244 of the Acts of 1981 adopted an implied consent requirement, the Legislature has continued to stipulate that, as a general rule, a person is not required to submit to a chemical test for alcohol. Code (1977, 1987 Repl. Vol.), § 16-205.1(b) of the Transportation Article; Code (1974, 1984 Repl. Vol.), § 10-304 of the Courts and Judicial Proceedings Article.

None of these measures was merely co-extensive with the Fifth Amendment’s Self-Incrimination clause. Thus, they *288demonstrate the General Assembly’s intent that persons should possess additional, statutory protections against governmental attempts to coerce the production of evidence through physical intrusion of the body. In interpreting the paternity statutes as extending no further than the right against self-incrimination, the majority, however, ignores this traditional legislative concern.

III.

The majority also suggests that, if a court may not hold a defendant in contempt for failing to submit to a blood test, § 5-1029(f) would unconstitutionally limit the inherent power of contempt.10 I disagree.

One well-recognized limitation on the exercise of civil contempt power is that, when a party has another adequate remedy, a court should not use its contempt power. See e.g., Gilman v. Altman, 300 So.2d 703, 706 (Fla.App.1974), cert. denied, 314 So.2d 583 (1975); People v. Mowery, 116 Ill.App.3d 695, 704, 72 Ill.Dec. 238, 245, 452 N.E.2d 363, 370 (1983) (“The inherent power of contempt is a powerful one; it is not to be used lightly nor when other adequate remedies are available ... ”); State ex rel. Hero, 36 La.Ann. 352, 354-355 (1884); Haines v. Haines, 35 Mich. 138, 144 (1876) (“the process of contempt to enforce civil remedies is one of those extreme resorts which cannot be justified if there is any other adequate remedy”); Hennig v. Abrahams, 270 N.Y. 626, 1 N.E.2d 362 (1936), aff'g 246 A.D. 621, 282 N.Y.S. 970 (1935); White v. Gates, 42 Ohio St. 109, 112 (1884); Rapalje on Contempts § 12 (1884). See also State v. Roll and Scholl, 267 Md. 714, 734, 298 A.2d 867, 879 (1973) (“Of course, the limits of the power to punish for contempt are ‘[t]he least possible power adequate to the end proposed’ ”).

The majority opinion does not contend that the express remedy under § 5-1029(f) is inadequate. In fact, according to the opinion, the statutory remedy is “ ‘a not inconsequen*289tial sanction.’ ” Moreover, if the General Assembly believed that the statutory penalty was not effective, it would have expressly provided for additional penalties. Consequently, the exercise of the inherent power of contempt ordinarily should not extend to cases in which a paternity defendant has refused to take a court-ordered blood test.

Furthermore, even if the express statutory sanction were not an adequate remedy, I do not agree that this case squarely presents the question of whether the General Assembly may limit the inherent power of contempt. In requiring an alleged father to submit to a blood test, a court does not issue the type of equitable order, such as an injunction, a decree of specific performance, or an alimony or support order, that courts traditionally have passed and enforced by contempt without any legislative authorization. Had the present case involved this or a similar type of order, the constitutional question would have been presented in its most pristine form.

As stated above, however, this case involves an order that courts may issue only because of the General Assembly’s statutory authorization. Absent the legislative foundation of § 5-1029, courts would have no power, through contempt or otherwise, to require that paternity defendants submit to blood tests. Thus, since § 5-1029 does not take away the contempt power where it had previously existed, it makes little sense to view this case as one in which the Legislature has “limited” the inherent power of contempt.

Finally, even assuming that a court must be able to hold a defendant in contempt for failing to submit to a blood test, it is not necessary to adopt the majority’s construction of § 5-1029 in order to uphold the statute’s constitutionality. The majority erroneously assumes that § 5-1029 is capable of only two, mutually exclusive interpretations: either the contempt power is available whenever a court would choose to employ it or the contempt power is never available. As a result, the majority fails to recognize that § 5-1029 might be construed as making the negative inference the usual remedy for enforcing compliance with blood test orders but *290also providing that, in extraordinary cases, such orders might be enforced by contempt. This reading would avoid the constitutional difficulties that the majority perceives. Moreover, as stated above, the General Assembly’s omission of any reference to contempt plainly indicates that it expected the primary sanction under § 5-1029 to be the negative inference. Therefore, by ensuring that the negative inference rather than contempt would serve as the chief means of enforcing blood test orders under § 5-1029, this interpretation better furthers the Legislature’s express goals.

For these reasons, I respectfully dissent.

Judges COLE and McAULIFFE have authorized me to state that they concur with the views expressed herein.

. This rule is often expressed as the Latin maxim "expressio unius est exclusio alterius," Office & Prof. Employees Int'l v. MTA, supra, 295 Md. at 96, 453 A.2d at 1195. For Maryland cases employing this principle of statutory construction, see, e.g., Montgomery v. State, 292 Md. 155, 162-163, 438 A.2d 490, 493 (1981); American Security v. New Amsterdam, 246 Md. 36, 41, 227 A.2d 214, 216-217 (1967); State Insurance v. Nationwide, 241 Md. 108, 117, 215 A.2d 749, 754-755 (1966); Gay Investment Co. v. Comi, 230 Md. 433, 438, 187 A.2d 463, 466 (1963); Railroad Co. v. Lichtenberg, 176 Md. 383, 390, 4 A.2d 734, 737, appeal dismissed, 308 U.S. 525, 60 S.Ct. 297, 84 L.Ed. 444 (1939); Graham v. Joyce, 151 Md. 298, 308, 134 A. 332, 336 (1926); Vanderford v. Farmers’ Bank, 105 Md. 164, 168, 66 A. 47, 49 (1907); De Atley v. Senior, 55 Md. 479, 483 (1881); Thanhauser v. Savins, 44 Md. 410, 414 (1876).

. D.C. Code Ann. § 16-2343.2 (Supp.1987); Ga.Code Ann. § 19-7-45 (1982); Mo.Ann.Stat. § 210.834.3 (Vernon Supp.1988); Tex.Fam. Code Ann. § 13.02(b) (Vernon 1986); Wis.Stat.Ann. § 767.48(4) (West Supp.1987).

. See, e.g., Cal.Evid.Code § 892 (West Supp.1988); Del.Code Ann. tit. 13, § 810(g) (Supp.1986); Kan.Stat.Ann. § 38-1118 (1986); La.Rev. Stat.Ann. § 9:396 (West Supp.1988); Me.Rev.Stat.Ann. tit. 19, § 277 (Supp.1987); N.H.Rev.Stat.Ann. § 522.1 (1974); Okla.Stat.Ann. tit. 10, § 501 (West 1987); Ore.Rev.Stat. § 109.252 (1987); 42 Pa.Cons.Stat. Ann. § 6133 (Purdon 1982). See also Idaho Code § 7-1116(5) (Supp. 1988) (party’s refusal to submit to blood test shall be disclosed to court and is subject to "sanctions" within court’s jurisdiction); Mich. Comp.Laws § 722.716(1) (Supp.1988) (“in addition to any other remedies available, the fact of the refusal shall be disclosed at the trial unless good cause is shown”); N.J.Stat.Ann. § 9:17-51.d (West Supp. 1988) (refusal to submit to blood test may be admitted into evidence, shall give rise to presumption that result would have been unfavorable and is subject to “the sanctions within the jurisdiction of the court”); Nev.Rev.Stat. § 126.121.2 (1986) (court may presume result would be adverse to party refusing to submit to test or may "enforce” its order).

It has been held that such statutes permit courts to hold disobedient parties in contempt. See, e.g., County of Hennepin v. Brinkman, 378 N.W.2d 790 (Minn.1985), which construed former Minn.Stat.Ann. § 259.62, subd. 4 (West 1982). The Supreme Court of Michigan has agreed to decide whether contempt is one of the “other remedies” authorized in the Michigan statute. Bowerman v. MacDonald, 428 Mich. 910, 409 N.W.2d 200 (1987).

. A number of statutes are silent as to the penalty for noncompliance. See, e.g., Ariz.Rev.Stat.Ann. § 12-847 (Supp.1987); Colo.Rev.Stat. § 19-4-112 (1987 Cum.Supp.); Conn.Gen.Stat. § 46b-168 (1987); Fla.Stat.Ann. § 742.12 (West Supp.1988); Haw.Rev.Stat. §§ 584-11, (1985 Repl.Vol.); Ind.Code Ann. § 31—6—6.1—8 (Burns 1987 Repl.Vol.); Iowa Code Ann. § 675.41 (1987); Minn.Stat.Ann. § 257.62 (West 1982 & Supp.1988); Mont.Code Ann. § 40-6-112 (1987); Neb.Rev.Stat. § 43-1414 (1984); N.M.Stat.Ann. § 40-11-12 (1986); N.Y.Fam.Ct.Act § 532 (1987); N.C.Gen.Stat. § 8-50.1 (1986); N.D.Cent.Code § 14-17-10 (1981); Ohio Rev.Code Ann. § 3111.09 (Page Supp.1987); Tenn.Code Ann. § 24-7-112 (Supp.1987); Vt.Stat.Ann. tit. 15, § 304 (Supp.1987); Va.Code § 20-49.3 (Supp.1988); Wash.Rev.Code § 26.26.100 (1987); W.Va.Code § 48A-6-3 (1986); Wyo.Stat. § 14-2-109 (1987).

Since these state legislatures have not enumerated a specific remedy other than contempt, it would appear that, under these statutes, a court might hold a party in contempt for disobeying an order requiring submission to a blood test. Accord County of Hennepin v. Brinkman, 378 N.W.2d 790 (Minn.1985); Molly M. v. Edwin F., 118 Misc.2d 768, 461 N.Y.S.2d 709 (Fam.Ct.1983).

. See, e.g., Ala.Code § 26-17-12(a) (1975, 1986 Repl.Vol.) (absent good cause, court shall disclose party’s refusal to submit to blood test); Ark.Stat.Ann. § 9-10-108(d) (1987) (absent good cause, court shall disclose party’s refusal to submit to blood test); Mass.Ann.Laws ch. 209C, § 17 (Law.Co-op Supp.1988) ("The fact that any party refuses to submit to a blood test shall be admissible”); R.I.Gen.Laws, § 15-8-11(a) (Supp.1986) (refusal to take blood test "shall be considered ... along with all other evidence presented”); Utah Code Ann. § 78-25-22 (1987) (despite weight of other evidence, court may resolve question of parentage against party refusing to submit to blood test).

The majority relies on In re Paternity of D.A.A.P., 117 Wis.2d 120, 344 N.W.2d 200 (Ct. of App.1983), in which Wisconsin’s intermediate appellate court construed a statute similar to Maryland's as permitting a court to hold a defendant in contempt for disobeying a blood test order. Like the majority opinion, however, the Wisconsin decision is premised on the erroneous assumption that, despite the pertinent statu*283tory language, a court would have "inherent” power to pass such a contempt order. See injra § III.

. To the contrary, the only direct evidence of legislative intent undermines the majority's conclusion. During the 1988 session of the General Assembly, Delegate Horne, the Chairman of the House Judiciary Committee, introduced H.B. 229. This measure would have repealed and reenacted § 5-1029(f) with amendments to provide as follows:

“(f) If any individual fails to submit to a blood test ordered by the court, THE INDIVIDUAL MAY BE PUNISHED BY CONTEMPT OR BY ANY OTHER SANCTIONS THAT THE COURT CONSIDERS APPROPRIATE. IN ADDITION, 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.”

H.B. 229’s supporters certainly understood that the sanction of contempt is not available under § 5—1029(f) as it currently stands. Delegate Horne introduced that bill on behalf of the Department of Human Resources, which took the position that the proposed amendment was necessary because "[pjresent law provides only that a trial judge or jury may be advised of a party’s failure to appear for blood testing” and because the negative inference is "the exclusive remedy in cases of failure to submit to the tests.” Statement by Ann C. Helton, Executive Director, Child Support Enforcement Administration, Maryland Department of Human Resources.

On February 11, 1988, however, H.B. 229 received an unfavorable report and thus died in the House Judiciary Committee. Under the circumstances, this clearly implies a rejection of the majority's position in this case.

. The majority also emphasizes that, under § 5-1029(e), a blood test satisfying certain conditions "shall be admitted into evidence." The majority evidently views this mandatory language as an authorization for courts to compel paternity defendants to consent to blood tests. I disagree.

Nothing in § 5-1029(e) addresses the manner in which a party to a paternity proceeding may obtain blood test evidence from his or her opponent; rather, as stated above, § 5-1029(e) merely provides that, however obtained, such evidence must be admitted under certain circumstances. Moreover, the majority fails to recognize that, in many cases, blood test evidence will not satisfy the standards of § 5-1029(e) and, consequently, not be admissible. Thus, contrary to the majority’s interpretation, it is difficult to conceive of § 5-1029(e) as an overriding mandate in favor of the forced production of blood test evidence. Finally, as the majority acknowledges, in some cases, such as when a defendant disappears or refuses to take a blood test even on pain of contempt, evidence will necessarily be unavailable notwithstanding the "mandate” of § 5-1029(e).

. Moreover, because of the strong likelihood of a finding of paternity under these circumstances and because an HLA test is admissible against a putative father only if it shows a 97.3% probability of paternity, most defendants will elect to take the test. Consequently, even assuming that the statutory sanction is less prejudicial to a defendant than blood test evidence, the majority is incorrect in asserting that, in paternity cases, the remedy of contempt is indispensable to "the search for truth.”

. The majority, citing Davis v. State, 189 Md. 640, 57 A.2d 289 (1948), implies that this Court has taken the same position under Article 22 of the Maryland Declaration of Rights. Davis, however, did not involve a compulsory blood test. Instead, the defendant in Davis voluntarily gave blood in a hospital for what he believed to be the purposes of treatment. The State later used that blood as evidence against the defendant. This Court apparently viewed the case as presenting the question of whether the evidence was inadmissible because it was the product of an unlawful search in violation of Article 26 of the Maryland Declaration of Rights. Since the defendant had been charged with a felony rather than a misdemeanor, the Court held that this evidence was admissible under Meisinger v. State, 155 Md. 195, 141 A. 536 (1928), and the Bouse Act, Code (1939), Art. 35, § 5. 189 Md. at 645-646, 57 A.2d 289. The Court expressly reserved the question of whether the State could compel an unwilling defendant to give blood which could be used as evidence against him. Moreover, while this Court generally has held that the Self-Incrimination Clause of the Fifth Amendment is in pari materia with Article 22, we have not addressed the question of whether, under Article 22 or 24 of the Maryland Declaration of Rights, a court may compel a person over his objection to give blood which could be used as evidence against him.

In addition, under some circumstances it has been recognized that a compulsory blood test may constitute an unreasonable search and seizure, in violation of the Fourth Amendment to the United States Constitution. See Schmerber v. California, supra, 384 U.S. at 767, 86 S.Ct. at 1834. As a consequence, courts in paternity cases have taken the position that, before ordering a defendant to submit to a blood test, it must be determined whether the plaintiffs allegations have some reasonable basis. See, e.g. Rose v. Dist. Court of Eighth Judicial *287Dist., 628 P.2d 662, 666-667 (Mont. 1981); State v. Meacham, 93 Wash.2d 735, 738-739, 612 P.2d 795, 798 (1980).

. This is the ground on which the circuit court placed its decision.