Maryland Attorney General Opinion 98 OAG 023

Gen. 23] 23

TESTAMENTARY LAW

ORPHANS’ COURT — EXTENT OF SUPERVISORY POWER OF

COURT OVER THE REGISTER OF WILLS

May 13, 2013

The Honorable Nancy C. Phelps

The Honorable Judith L. Duckett

Orphans’ Court for Anne Arundel County

You have asked us what authority an orphans’ court has over

the register of wills, whose duties include serving as the clerk of

court for the orphans’ court. You have asked us to describe that

authority with regard to the register’s conduct as the clerk of court

and with regard to personnel decisions within the register’s

office.1

This is not the first time this Office has been asked to opine

about the relationship between the orphans’ courts and the

registers. In 49 Opinions of the Attorney General 520 (1964),

Attorney General Thomas B. Finan answered what appears to be

at least one of the questions you pose here: “[T]o what extent is a

Register of Wills subject to control and direction by the Orphans’

Court of the county which he serves, with regard to the duties

incident to his position as Clerk of the Orphans’ Court?” We

reiterate the general conclusions reached in the earlier opinion,

namely, that the orphans’ court’s authority over the register of

wills is analogous to the authority of a court of law over the clerk

of court who assists it in administering its docket. Accordingly,

the orphans’ courts, like circuit courts, have the power to

effectuate their jurisdiction, enforce their orders, and punish

contempts. Theoretically, and in extraordinary circumstances, the

orphans’ court’s power of contempt may be exercised as to a

register, but only with respect to the register’s performance of

clerical duties in connection with the administration of estates

1

In accordance with our established policy, we forwarded your

request for an opinion to Chief Judge Bell for his review and

concurrence. On January 8, 2013, David R. Durfee Jr., Executive

Director of Legal Affairs for the Administrative Office of the Courts,

conveyed Chief Judge Bell’s concurrence in your request, revised to

ask more broadly “what sort of authority an Orphans’ Court has to

make sure that its orders and decisions are followed by the Register of

Wills.”

24 [98 Op. Att’y

before the court. The orphans’ court has no role in the decision to

appoint, retain, discipline, or terminate personnel within the

register’s office.

I

Background

The orphans’ courts and the registers of wills are the two

constitutionally-created offices that administer the testamentary

system in Maryland. Both offices are elective, both lie within the

Judicial Branch, and both have a long and rich tradition of public

service reaching back to the early years of the Republic. The

questions you ask, however, require us to focus on the differences

between the two offices and the extent to which the orphans’

courts have authority over the registers.

Orphans’ Courts

The orphans’ courts serve as the probate courts within each

Maryland county and the City of Baltimore. Except in Harford

County and Montgomery County, where the circuit court judges

sit as an orphans’ court, Art. IV, §§ 20, 40, each orphans’ court

consists of three judges who are elected, Art. IV, § 40(a), serve

four-year terms, Art. XVII, § 3, and, in most jurisdictions, are not

required to be members of the bar. Art. IV, § 40(a)-(d); Kadan v.

Board of Sup. of Elections, 273 Md. 406, 424 (1974). The time

during which the orphans’ courts transact business varies by

jurisdiction; some courts meet essentially full time, Md. Code

Ann., Estates and Trusts (“ET”) § 2-106(b) (Baltimore City),

others must meet a certain number of days each week, see, e.g.,

ET § 2-106(d) (Prince George’s County, three days), ET § 2-

106(h) (Anne Arundel County, two days), and still others must, at

a minimum, meet “on the second Tuesday” of the even-numbered

months. ET § 2-106(a). The judges’ salaries are paid by the local

jurisdiction in which they serve. Art. IV, § 40(e).

The orphans’ courts derive their authority from Article IV,

§ 40 of the Maryland Constitution, subject to “such changes as the

Legislature may prescribe.” Art. IV, § 40; Savings Bank v.

Weeks, 110 Md. 78, 92 (1909) (stating that, under Article IV,

§ 40, the Legislature may “make changes in the powers with

which the Orphans’ Courts were clothed at the time of the

adoption of the Constitution, but also confer additional powers

upon such tribunals or . . . take from them powers which at such

time they possessed”). As current law prescribes,

Gen. 23] 25

The [orphans’] court may conduct judicial

probate, direct the conduct of a personal

representative, and pass orders which may be

required in the course of the administration

of an estate of a decedent. It may summon

witnesses. The court may not, under pretext

of incidental power or constructive authority,

exercise any jurisdiction not expressly

conferred.

ET § 2-101(a). As reflected in their statutory charge, the orphans’

courts “are not courts of general jurisdiction; on the contrary, they

are courts of special and limited jurisdiction only . . . .” Crandall

v. Crandall, 218 Md. 598, 600 (1950).

Within its limited jurisdiction, however, the orphans’ court

has “extensive powers” to determine issues related to the

administration of estates. Jones v. Jones, 41 Md. 354, 361

(1875); see also Kaouris v. Kaouris, 324 Md. 687, 709 (1991).

The orphans’ court conducts judicial probate of a will under

certain statutorily-defined circumstances: at the request of an

interested person; at the request of a creditor when there has been

no administrative probate; when the court or the register

determines that the petition for administrative probate is

“materially incomplete or incorrect in any respect”; or when the

will is torn, damaged, or lost. ET § 5-402. The orphans’ court

may “direct the conduct of a personal representative, and pass

orders which may be required in the course of the administration

of an estate of a decedent,” ET § 2-102(a), and otherwise has full

power to “properly administer[] justice within [its] assigned

sphere.” Radcliff v. Vance, 360 Md. 277, 286 (2000); see also

Allen v. Ritter, 424 Md. 216, 230 (2011). To this end, the

orphans’ court “has the same legal and equitable powers to

effectuate its jurisdiction, punish contempts, and carry out its

orders, judgments, and decrees as a court of record with general

jurisdiction in equity.” ET § 2-103.

Register of Wills

The registers are also elected constitutional officers and, like

most orphans’ court judges, serve four-year terms. Art. IV, § 41.

The manner in which the registers serve and are compensated,

however, differs from that which applies to the orphans’ courts.

Unlike the judges of most orphans’ courts, the register is

statutorily required to “devote his full working time to the duties

of his office.” ET § 2-202. And the registers are not paid by the

local jurisdictions in which they serve, but are instead paid “from

26 [98 Op. Att’y

the fees and receipts of the office” or, if they are insufficient,

“from the taxes remitted to the Comptroller . . . by the register.”

ET § 2-205(d), (e); see also 68 Opinions of the Attorney General

96, 105 (1983) (describing the registers’ arrangement with the

Comptroller to use the administrative infrastructure of the Central

Payroll Bureau to pay the salaries and expenses of the registers’

offices, with any excess reverting to the General Fund).

The registers’ functions as to the administration of estates

also differ somewhat from those that the orphans courts perform.

Whereas the orphans’ court oversees judicial probate, the register

of wills carries out the administrative probate of wills when none

of the circumstances requiring judicial probate are present. ET

§§ 5-301 to 5-303. The register may admit a will to probate,

appoint personal representatives, and otherwise “assume due

execution of the will.” ET §§ 5-302, 5-303. The register’s

disposition of the estate is final unless a petition for judicial

administration is filed within 18 months of the death of the

decedent. ET § 5-304. Because administrative probate makes up

the vast majority of the testamentary practice within Maryland,

we have previously described the register as the “primary

supervising authority over the administration of estates.” 61

Opinions of the Attorney General 893, 905 n.7 (1976).

Furthermore, the register’s role is not limited to the

administration of estates in the testamentary sense. The registers

are also the primary collectors of Maryland inheritance taxes, ET

§ 7-307(a), in which capacity they work closely with the

Comptroller’s Office to ensure that tax receipts are appropriately

tabulated, accounted for, and conveyed to the General Fund. See

ET § 2-207; see generally 49 Opinions of the Attorney General

520.

The register also serves as the clerk to the orphans’ court, ET

§ 2-208(e), “in which capacity he acts as any other clerk of a

constitutionally created court in this State.” 49 Opinions of the

Attorney General at 520. As clerk of the orphans’ court, the

register carries out a number of ministerial duties. The register

“shall make out and issue every summons, process, or order of the

court,” ET § 2-208(e), attend meetings of the court, ET § 2-

208(g), “make full and fair entries of court proceedings,” id., and

“keep a proper docket” of the orphans’ court proceedings “similar

in every respect to the dockets required to be kept in the offices of

the equity courts.” ET § 2-208(d).

The register’s performance of his or her powers and duties is

thus subject to supervision by two different constitutional bodies.

Gen. 23] 27

When acting as the clerk of the orphans’ court, the register, “in

every respect, act[s] under the control and direction of the court as

the clerk of a court of law acts under the direction of the court of

law.” ET § 2-208(e). And yet, while the register must keep the

orphans’ court’s docket, the docket the register keeps is subject to

“supervision, examination, and control as ordered by the

Comptroller.” ET § 2-208(d). With respect to personnel matters,

it is the Comptroller, not the orphans’ court, who “set[s] the

number and compensation of assistant clerks or deputies

employed by each register,” Md. Code Ann., State Gov’t (“SG”)

§ 4-108(a), and “approve[s]” the register’s appointment of

deputies and clerks.2 ET § 2-208(b). And yet any vacancy in the

position of register is filled by the orphans’ court, not the

Comptroller. Art. IV, § 41.

Anne Arundel County Dispute

The request for this opinion comes at the same time that a

dispute surrounding the termination of the former Chief Deputy of

the Register of Wills for Anne Arundel County is unfolding in the

Maryland courts and various administrative tribunals. We are

aware of the circumstances of that litigation and of reports of

conflicts between that county’s orphans’ court and register of

wills related to the litigation. As we have done previously, we

will regard such reports as “hypothetical situations,” 49 Opinions

of the Attorney General at 520, and will not address them further.

We must, however, frame the issues involved in the dispute

in order to ensure, in accordance with the longstanding policy of

this Office, that we do not issue an opinion on any question that is

2

It is our understanding that the Comptroller’s authority to

“approve[]” the appointment of deputies and clerks within the register’s

office is exercised to ensure that the registers are filling authorized

positions, not to pass judgment on the qualifications of individual

candidates. It is also our understanding that the Comptroller does not

“control” the manner in which the registers docket probate cases.

Although we have not been apprised of the reason why the Comptroller

has exercised his statutory authority in this limited manner, we note

that doing so minimizes the risk that the Comptroller’s role would

intrude upon core judicial functions and thus offend constitutional

principles of separation of powers. See Maryland Declaration of

Rights, Article 8; see also 77 Opinions of the Attorney General 147,

166-67 (1992) (Secretary of Personnel “cannot exercise her authority to

determine which employees are eligible to receive overtime in such a

way as to interfere with the core functions of the judicial or legislative

branches.”).

28 [98 Op. Att’y

the subject of current or imminent litigation. To that end, we note

that, on December 19, 2011, the terminated employee filed a

complaint with the Secretary of the Department of Budget and

Management pursuant to the Maryland Whistleblower Law

applicable to Executive Branch employees. See Md. Code Ann.,

State Pers. & Pens. §§ 5-301 to 5-314 (2009 Repl. Vol., 2012

Supp.). The Department referred the matter to the Office of

Administrative Hearings (“OAH”), which, on July 2, 2012, issued

a final administrative decision dismissing the complaint on the

grounds that the employee was not an Executive Branch

employee and, thus, could not avail herself of the procedures

available under the Maryland Whistleblower Law. See White v.

Register of Wills, Anne Arundel County, OAH Docket No. SPMP-

AARW-80-12-090164 (July 2, 2012). On May 7, 2013, the

Circuit Court for Anne Arundel County affirmed the OAH

decision. White v. Register of Wills, No. 02-C-12-171099 (Cir.

Ct. for Anne Arundel Cty., May 7, 2013). The conclusions we

reach here are not intended to bear on that litigation.

II

Analysis

A. Within Their Limited Jurisdiction Over the Administration

of Estates, the Orphans’ Courts Have the Same Authority

and Control Over the Register Acting as the Clerk of Court

that Any Court of Law Has Over the Clerk of Court.

An orphans’ court has only a “special and limited

jurisdiction,” Crandall, 218 Md. at 600, and it “may not, under

pretext of incidental power or constructive authority, exercise any

jurisdiction not expressly conferred.” ET § 2-101(a). And yet,

within its limited jurisdiction, the orphans’ court has the same

power to control and direct the register of wills in how to carry

out the register’s responsibilities as clerk as any court of general

jurisdiction has over the clerks who assist it:

[The register] shall make out and issue every

summons, process, or order of the court and,

in every respect, act under the control and

direction of the court as the clerk of a court

of law acts under the direction of the court of

law.

ET § 2-208(e). This provision is substantively identical to earlier

iterations that have been in place since 1798:

Gen. 23] 29

The register of wills in each county, already

or hereafter to be appointed agreeably to the

constitution, shall diligently attend each

meeting of the orphans court in his county . .

. and shall, in every respect, act under their

control and direction, as the clerk of a court

of law is under the direction of the said court

of law . . . .

1798 Md. Laws, ch. 101, subch. 15, § 9; see also Md. Ann. Code

art. 93, § 290 (1964 Repl. Vol.) (“Each register shall . . . in every

respect act under their control and direction as the clerk of a court

of law is under the direction of such court of law . . . .”).

Based on this longstanding authority, as well as the courts’

“visitorial powers” discussed below, we have previously advised

that the orphans’ court “has general power of supervision over the

register to the extent that he or she acts as clerk of the orphans’

court or participates in the administration of an estate.” 76

Opinions of the Attorney General 142, 144 (1991). Although we

confirm that advice here, we caution that the extent of the

orphans’ court’s “general power of supervision” is determined

largely by the specific role in which the register is acting. We do

not here attempt to describe the myriad ways in which specific

activities of the register may implicate the orphans’ court’s

powers of supervision. Instead, we will discuss the two areas in

which you, and the Administrative Office of the Courts, have

expressed particular interest, namely, the powers that an orphans’

court has to (1) ensure that its orders and decisions are followed

by the register, and (2) review and approve personnel decisions

within the register’s office. Our analysis is structured accord-

ingly, focusing first on the orphans’ courts’ general supervision of

the registers, and how it has evolved, and then answering the

question whether that supervisory authority encompasses

personnel decisions within the register’s office.

1. Previous Attorney General Opinions Addressing the

Orphans’ Court’s Authority Over the Register of

Wills

As noted above, this is not the first time this Office has been

asked to describe the relationship between the orphans’ court and

the register of wills. In 49 Opinions of the Attorney General 520,

the Orphans’ Court for Montgomery County asked: “to what

extent is a Register of Wills subject to control and direction by the

Orphans’ Court of the county which he serves, with regard to the

duties incident to his position as Clerk of the Orphans’ Court?”

30 [98 Op. Att’y

Id. Then-Attorney General Finan answered the question with

respect to three “specific areas of controversy,” id. at 522, and

concluded that the court had the power to require that the register

(1) not permit attorneys to “remove original records filed in the

office of the Register from the premises,” id.; (2) maintain a

written record of delinquencies in the filing of accounts and

inventories by executors and administrators, id. at 523; and (3) be

“available to the court when summoned by it to answer an

inquiry.” Id. The opinion noted that the court’s exercise of its

supervisory powers in these respects fell within the “proper

performance” of the court’s “duty of supervising expedient

administration of estates.” Id.

In 61 Opinions of the Attorney General 893, then-Attorney

General Burch concluded that the orphans’ court had the authority

to approve or disapprove a register’s appointment of himself as

the appraiser of a probate estate under administration. The

opinion reached that conclusion despite legislative revisions to the

Maryland testamentary law in 1969, which gave the register, and

not the orphans’ court, the “authority and responsibility for the

appointment of appraisers” for probate assets. Id. at 893.

“[A]lthough the Register is vested with authority over the

appointment of appraisers in the context of the probate estate, the

Orphans’ Court can regulate the exercise of his authority under its

visitorial powers over him as clerk of court where specific

conduct allegedly offends ethical or legal principles or is

otherwise alleged to be improper.” Id. at 900.

This Office also concluded that the orphans’ court had the

authority to review the register’s appointment of himself as

appraiser “[e]ven though the appraising of probate assets is

generally regarded as required primarily for the establishment of

the value of property subject to inheritance taxes,” the collection

of which is overseen by the Comptroller. See id. at 899. We

observed in this respect that “appraisals also have varied

significance in determining the allocable shares of the interested

persons in the distribution of a decedent’s estate.” Id.

Since, even under administrative probate, the

Orphans’ Court is the final authority in

passing administration accounts reflecting

distributions and disbursements, the appraisal

process could properly be viewed as

constituting more than a mere step in the tax

collection process and the Register in

exercising his authority in connection with

Gen. 23] 31

the appointment of appraisers over probate

assets could properly be regarded as subject

to the “visitorial power of the judges of the

Orphans’ Court.”

Id. at 899-900; see also 37 Opinions of the Attorney General 319,

320 (1952) (observing that the propriety of the register serving as

an appraiser for a fee was “a matter for determination not by the

Comptroller or by this office but by the Orphans’ Court”). In

these and other respects, we have previously described the

register of wills as “an adjunct” of the orphans’ court, with

respect to which “the Court may give approval or disapproval to

certain of the practices, just as other Courts pass upon practices in

the respective clerk’s offices—which practices affect the

administration of justice in the Court.” 21 Opinions of the

Attorney General 564, 567 (1936). office.

2. The Orphans’ Court’s “Visitorial Powers” and

Their Repeal in 1990

The conclusions we reached in these two prior opinions were

based squarely on the fact that the orphans’ court had “visitorial

power” over the register of wills when the latter was acting as a

clerk of court or otherwise participating in the administration of

probate. At the time we rendered these prior opinions, Article IV,

§ 10—which applied to the registers through what is now § 2-

208(e) of the Estates and Trusts Article, see former Md. Ann.

Code art. 93, § 290 (1957)—provided that the clerks of all

constitutionally-created courts “shall be subject to the visitorial

power of the Judges of their respective Courts, who shall exercise

the same, from time to time, so as to insure the faithful

performance of the duties of said officers . . . .” Section 10 also

provided that each court must make “rules and regulations as may

be necessary and proper for the government of said clerks, and for

the performance of the duties of their offices . . . .”3 See 49

3

The former text of Article IV, Section 10 provided in full:

The clerks of the several Courts, created, or

continued by this Constitution, shall have charge

and custody of the records and other papers, shall

perform all the duties, and be allowed the fees,

which appertain to their several offices, as the

same now are, or may hereafter be regulated by

Law. And the office and business of said clerks,

in all their departments, shall be subject to the

(continued . . .)

32 [98 Op. Att’y

Opinions of the Attorney General at 521-22. As the Court of

Appeals stated in Peter v. Prettyman:

It is expressly stated that this visitorial power

is given for the purpose of securing the

faithful performance of duty. The law

imposes certain duties on the clerks and

requires a bond from them for their faithful

performance. To more certainly insure the

proper discharge of their duties thus required

of them by the law, the Judges are, by the

Constitution, given power not only to

supervise them, but to prescribe regulations

and rules necessary to secure the prompt and

efficient discharge of their duties.

62 Md. 566, 575-76 (1884).4 The Court of Appeals observed in

Prettyman that “[t]he object of the provision was clearly to coerce

visitorial power of the Judges of their respective

Courts, who shall exercise the same, from time to

time, so as to insure the faithful performance of

the duties of said officers; and it shall be the duty

of the Judges of said Courts respectively, to

make, from time to time, such rules and

regulations as may be necessary and proper for

the government of said clerks, and for the

performance of the duties of their offices, which

shall have the force of Law until repealed, or

modified by the General Assembly.

4

Although “there may be degrees of visitatorial powers,”

Insurance Comm’r of Maryland v. Blue Shield of Maryland, Inc., 295

Md. 496, 518 (1983), see also Board of Educ. v. Heister, 392 Md. 140,

153 n.12 (2006) (observing that the terms “visitorial” and “visitatorial”

have been used interchangeably), the visitorial power is generally

regarded as a broad, ad hoc authority to enter into the offices of another

entity, inspect its operations, and regulate its affairs. Historically, the

power of visitation arose most frequently in the context of the

“sovereign’s right of visitation over corporations,” which itself

“paralleled the right of the church to supervise its institutions and the

right of the founder of a charitable institution ‘to see that [his] property

[was] rightly employed.’” Cuomo v. Clearing House Ass’n, L.L.C.,

557 U.S. 519, 525 (2009) (quoting 1 W. Blackstone, Commentaries on

the Laws of England 469 (1765)). “A visitor could inspect and control

the visited institution at will.” Id.; see also Black’s Law Dictionary

(5th ed. 1979) (defining “visitation” as “[i]nspection; superintendence;

direction; regulation”).

Gen. 23] 33

full compliance with all laws imposing duties upon the clerks,” id.

at 576, and, to that end, it was within the power of each court to

determine “[h]ow the clerks were to perform their duties” and to

direct “[t]he method of doing the work . . . .” Id. This Office has

previously opined that the court’s Article IV, § 10 visitorial

powers gave it “control over the day-to-day operation of the

clerks’ offices,” 58 Opinions of the Attorney General 69, 73

(1973), and “supervision, regulation, and direction of how the

clerks are to perform their duties.” 68 Opinions of the Attorney

General at 97. For example, we have previously concluded that

the courts’ control over the operations of the clerks encompassed

such things as setting the “working hours” of the clerk’s office.

58 Opinions of the Attorney General at 73.

The Legislature amended Article IV, § 10 in 1990, repealed

the court’s visitorial powers, and made other changes that limit

the control that circuit courts have over the clerks who serve

them. 1990 Md. Laws, ch. 62 (ratified by the voters on November

6, 1990); cf. 82 Opinions of the Attorney General 125, 127 (1997)

(as a result of the 1990 amendments, “the Constitution no longer

could be said to create the post of deputy clerk or to subject it to a

measure of circuit court control. Rather, the contours of the

position were left to the General Assembly (by statute) and the

Court of Appeals (by rule) to determine.”). Article IV, § 10 now

reads:

(a)(1) The clerks of the Courts shall have

charge and custody of records and other

papers and shall perform all the duties which

appertain to their offices, as are regulated by

Law.

(2) The office and business of the clerks,

in all their departments, shall be subject to

and governed in accordance with rules

adopted by the Court of Appeals pursuant to

Section 18 of this article.

(b) The offices of the clerks shall be funded

through the State budget. All fees,

commissions, or other revenues established

by Law for these offices shall be State

revenues, unless provided otherwise by the

General Assembly.

The intermediate appellate court, writing in 1992, observed that,

“[a]lthough the Circuit Court, as a whole, once had a ‘visitorial’

power over the clerk, that power is vested now in the Court of

34 [98 Op. Att’y

Appeals . . . .” Home Indem. Co. v. Killian, 94 Md. App. 205,

222 (1992).

In addition to repealing the visitorial powers each individual

court had over its clerk of court, the 1990 amendments repealed

each individual court’s power to make rules and regulations

applicable to the clerks of court. The circuit courts were

previously empowered to make “such rules and regulations as

may be necessary and proper for the government of said Clerks,

and for the performance of the duties of their offices.” Former

Art. IV, § 10 (1981 Repl. Vol., 1989 Cum. Supp.). The 1990

amendments removed that authority and instead gave the Court of

Appeals the authority to adopt generally applicable rules

governing “[t]he office and business of the clerks, in all their

departments.” The Court of Appeals has done so, and those rules

now govern the interaction between the courts and the clerks who

serve them. See Rules 16-302 to 16-309.

At the same time the Court of Appeals promulgated

uniform rules applicable across the judiciary, it repealed virtually

all of the local rules that had been adopted by the circuit courts.

See Rule 1-102 (allowing the adoption of circuit and local rules

on only five topics); Rule 6-102 (“Except as otherwise provided

in Rule 1-102, all circuit and local rules regulating matters in the

orphans’ courts or before the registers of wills are repealed and no

circuit or local rules regulating such matters shall be adopted.”).

In this respect, too, the 1990 amendments reflected a shift of

control over the clerks, from the circuit court to the Court of

Appeals and its Chief Judge, as “administrative head” of the court

system. Art. IV, § 18(a), (b)(1).

The 1990 amendments altered the relationship between the

courts and their clerks in another way as well. Prior to 1990,

Article IV, § 26 of the Maryland Constitution specifically gave

individual courts a significant role in the personnel decisions

within the clerks’ offices:

The clerks shall appoint, subject to the

confirmation of the Judges of their respective

Courts, as many deputies under them, as the

Judges deem necessary, to perform, together

with themselves, the duties of the office, who

shall be removable by the Judges for

incompetency, or neglect of duty, and whose

compensation shall be determined by law.

Gen. 23] 35

Former Art. IV, § 26 (1981 Repl. Vol.); see 59 Opinions of the

Attorney General 84, 85 (1974) (observing that “the power of

removal is vested solely in the Judges”); see also State use of

Smith v. Turner, 101 Md. 584, 590-91 (1905) (concluding that the

clerk cannot appoint a deputy clerk “without the approval of the

Judge of his Court, nor can he retain him if found by the Judge to

be incompetent or negligent”). As a result of the 1990 amend-

ments, however, Article IV, § 26 now provides that “[d]eputy

clerks and other employees of the office of the clerk shall be

appointed and removed according to procedures set by law.”

As part of the statutory and constitutional changes enacted in

1990, § 2-505(b) of the Courts Article was amended to provide

that “[t]he procedure for appointment and removal of personnel in

the clerk’s office shall be as provided by rules adopted by the

Court of Appeals” and that the Court would have the authority to

determine by rule whether personnel in the clerks’ office are to be

within the State Personnel Management System, subject to the

authority of the Secretary of Personnel, “or in the personnel

system of the Judicial Branch.” Former CJP § 2-505(b) (1989

Repl. Vol., 1990 Supp.). The Court of Appeals elected to

establish its own personnel system and promulgated rules

providing that the “standards and procedures for the selection and

appointment . . . promotion, reclassification, transfer, demotion,

suspension, discharge or other discipline” of clerks’ office

employees shall be developed by the State Court Administrator,

subject to the approval of the Court of Appeals. Rule 16-301(d)

(formerly Rule 1212); see 79 Opinions of the Attorney General

29, 29-30 (1994) (discussing the circumstances surrounding the

promulgation of the rules governing the judiciary personnel

system). With the adoption of the personnel system under Rule

1212 and the procedures developed and adopted pursuant to that

rule, the circuit court clerks’ offices became subject to uniform

personnel procedures approved by the Court of Appeals. See 79

Opinions of the Attorney General at 29-30 (observing that, as a

result of the 1990 amendments, “the offices and business of the

clerks, including the appointment and removal of their deputies

and employees, became subject to rules adopted by the Court of

Appeals”).

Because the employees of the circuit court clerks’ offices,

with one exception, are subject to the judiciary’s personnel

system, if an employee of a clerk’s office fails to perform

assigned duties satisfactorily, the employee may be subject to

36 [98 Op. Att’y

disciplinary action, but may no longer be removed by the circuit

court.5 In this respect, the 1990 amendments regularized the

relationship between the courts and their clerks, with the terms of

engagement set, not by a discretionary, essentially ad hoc

regulation by the circuit courts, but by the Court of Appeals in

accordance with standards uniformly applicable across the

judiciary. Those standards are primarily set forth in three places.

First, Article IV, § 10, discussed above, provides that the clerks

“shall have charge and custody of records and other papers and

shall perform all the duties which appertain to their offices, as are

regulated by Law.” Art. IV, § 10(a)(1). Second, § 2-201 of the

Courts Article elaborates on this constitutional charge and

enumerates the clerk’s clerical duties. Those duties generally

consist of record-keeping, Md. Code Ann., Cts. & Jud. Proc.

(“CJP”) § 2-201(a)(1)-(4), (9); issuance of orders and corres-

pondence, (a)(5)-(7); administering oaths, (a)(8); and performing

“any other duty required by law or rule,” (a)(11). Finally, the

Title 16, Chapter 300 rules apply, providing further guidance on

how the clerks carry out their administrative responsibilities and

providing more generally that the County Administrative Judge—

and not each individual circuit court judge—has the “supervision

of all judges, officers, and employees of the court. . . .” Rule 16-

101d.2(i). office.

3. The Orphans’ Court’s Authority Over the Register

of Wills After 1990

Although the 1990 constitutional amendments applied to the

clerks and not the registers, § 2-208(e) of the Estates and Trusts

Article essentially pegs the supervision of the register to that of

the clerks, at least by analogy if not by operation of law.

Accordingly, just as the circuit courts no longer have the broad,

discretionary “visitorial powers” over the clerks’ offices that they

once had, the orphans’ courts no longer have “visitorial powers”

over the registers.6 The Court of Appeals has filled the gap left

5

The one exception is the chief deputy clerk, who continues to

serve at the pleasure of the clerk. Rule 16-301a.(2); see 82 Opinions of

the Attorney General at 128 (describing the chief deputy clerk as a

“singular post”). However, as with the other employees of the clerk’s

office, the deputy is no longer subject to removal by the circuit court.

6

The 1990 repeal of the circuit courts’ “visitorial powers” over the

clerks renders obsolete the reasoning of our pre-1990 opinions relating

to the scope of the orphans’ courts’ authority over the registers. See 82

Opinions of the Attorney General at 125 (regarding whether a deputy

(continued . . .)

Gen. 23] 37

by the repeal of visitorial powers by promulgating regulations that

govern the operations of the clerks’ offices, but it has not done so

with respect to the registers. The Title 6 Rules govern matters in

the orphans’ courts and before the registers relating to the

settlement of decedents’ estates, and the Title 7, Subtitle 5 rules

govern appeals from the orphans’ courts, but both sets of rules

provide only limited guidance as to how the registers carry out

their role.7 See Rule 6-108 (providing that the register may not

refuse to accept for filing any paper on the ground that it is not in

the form mandated by the Rules, so long as it has the necessary

certificate of service); Rule 7-505(f) (describing the duties of the

registers in transmitting the record on appeal).

The authorities that govern the clerks—Art. IV, § 10; CJP

§ 2-201, and the Title 16, Chapter 300 Rules—are not directly

applicable to the registers. However, to the extent that those

authorities illustrate how a “clerk of a court of law acts under the

direction of the court of law,” we believe that they describe the

manner in which the registers “act under the control and

direction” of the orphans’ court. ET § 2-208(e).8 We also believe

clerk of court may serve as member of the General Assembly and

overruling “[p]rior opinions of the Attorney General, which were

issued before voter approval in 1990 of changes to Article IV, § 26 of

the Constitution and which would mandate a contrary result”).

7

The Rules Committee, in its recently proposed revision of the

Title 16 rules, observed that, “[a]lthough proposed Rule 16-101 refers

generally to the administrative duties of the Registers of Wills and the

chief judges of the Orphans’ Courts, the Rules Committee has not

attempted to define in any detail the administrative responsibilities of

either. . . . Because the Orphans’ Courts are a Constitutional part of the

Maryland Judiciary, it may be advisable at some point for the Court to

consider exercising some greater administrative supervision over them

. . . .” 178th Report Standing Committee on Rules of Practice and

Procedure, Part I, at 4-5 (April 29, 2013).

8

We believe the phrase “in every respect” within § 2-208(e) is best

interpreted as meaning that the register, when acting as clerk of the

orphans’ court, is considered “in every respect” to be acting in the same

capacity as the clerk of a court of general jurisdiction. That does not

mean, however, that each and every rule applicable to the clerks applies

with equal force to the registers. After all, the statute itself identifies at

least one specific duty—maintenance of a docket—that the register

performs under the “supervision, examination, and control” of the

Comptroller and not the Chief Judge of the Court of Appeals, as Rule

16-305 would provide for circuit court clerks. See ET § 2-208(d). The

(continued . . .)

38 [98 Op. Att’y

that the Court of Appeals, as it has done for the circuit court

clerks, has the authority under Article IV, § 18(a) to adopt

additional rules that would govern specifically the actions of the

registers of wills that are undertaken in the course of

administering estates in the orphans’ court. See Art. IV, § 18(a)

(Court of Appeals has authority to “adopt rules and regulations

concerning . . . the administration of the appellate courts and in

the other courts of this State”). After 1990, then, the Court of

Appeals ultimately has the power to determine how the registers

perform their duties related to the administration of estates. Cf.

Prettyman, 62 Md. at 575-76 (describing pre-1990 visitorial

powers); 68 Opinions of the Attorney General at 97 (same).9

Although an orphans’ court no longer has the broad visitorial

powers it once had over the register who acts as its clerk, it still

has “the same legal and equitable powers to effectuate its

jurisdiction, punish contempts, and carry out its orders,

judgments, and decrees as a court of record with general

jurisdiction in equity.” ET § 2-103. Within its limited

jurisdiction, “it is, by the law, clothed with extensive powers, and

rules applicable to clerks conflict with statutory provisions applicable

to the registers in other respects as well. Compare Rule 16-301d.(3)

(appointments of new employees within clerk’s office are made in

accordance with standards established by State Court Administrator)

with ET § 2-208(b) (appointments of deputy registers and clerks must

be approved by the Comptroller). Finally, the Court of Appeals has

promulgated some rules that are specifically applicable to the registers.

See, e.g., Rule 6-108. We believe, however, that, in a situation that is

not governed by a statutory provision or rule specific to the registers,

the rules applicable to the clerks would govern the registers’

performance of their clerical duties.

9

The rulemaking power of the Court of Appeals would not reach

the manner in which the registers carry out their responsibilities as the

collectors of inheritance taxes. Cf. 61 Opinions of the Attorney General

at 899-900 (suggesting by negative implication that an action by the

register that constitutes “a mere step in the tax collection process”

would not be subject to the orphans’ court’s oversight). Although the

Comptroller does not administer the inheritance tax, Md. Code Ann.,

Tax-Gen (“TG”) § 2-102, he oversees the registers’ collection of

inheritance taxes through a number of statutory provisions. See, e.g.,

TG §§ 2-701 (“The Comptroller shall distribute the inheritance tax

revenue to the General Fund of the State.”), 7-218(b) (providing for

Comptroller’s approval of an alternative schedule for payment of

inheritance tax); 7-231 to 7-234 (requiring register to report inheritance

tax receipts to the Comptroller on a monthly basis).

Gen. 23] 39

charged with the performance of very important duties in regard

to the administration of the personal estate of deceased persons.”

Jones, 41 Md. at 361. While the orphans’ courts may not

“exercise any jurisdiction not expressly conferred,” ET § 2-102(a)

(emphasis added), Crandall, 218 Md. at 600, they are

“empowered to decide such matters as are necessarily incident to

the exercise of the powers expressly granted them.” Radcliff, 360

Md. at 286 (quoting State v. Talbott, 148 Md. 70, 79 (1925)

(emphasis added)). As we have previously observed, the court’s

power of contempt “is the ordinary means by which courts secure

compliance with their orders.” 84 Opinions of the Attorney

General 105, 113 n.7 (1999). The question here is the extent to

which that power may be exercised to compel the register to carry

out the orphans’ court’s orders. We think that it may, although

within certain limits we describe below.

The judicial power of contempt is rooted in pre-Colonial

English law and has been an inherent power of Maryland courts

since Independence. See State v. Roll and Scholl, 267 Md. 714,

716-17, 726-27 (1973). The power of contempt reflects the

recognition that it “is essential to the integrity and independence

of judicial tribunals that they should have the power to enforce

their own judgment as to what conduct is incompatible with the

proper and orderly course of their procedure.” Ex Parte Sturm,

152 Md. 114, 121 (1927). Although currently codified in § 1-202

of the Courts Article—“A court may exercise the power to punish

for contempt of court or to compel compliance with its commands

in the manner prescribed by Title 15, Chapter 200 of the

Maryland Rules”—the power of contempt is a “common law

power possessed, independently of statute, by our courts of

constitutional origin.” Sturm, 152 Md. at 120; see also Pearson v.

State, 28 Md. App. 464, 480 (1975) (“It is manifest that Courts

Art. § 1-202(a) merely recognizes the inherent power of a court to

punish for contempt and to compel compliance with its

commands.”); 5A Md. Law Encycl., Contempt § 15 (2001).

A handful of Maryland court decisions reflect that orphans’

courts have exercised their contempt powers. See Attorney Griev.

Comm’n v. Kendrick, 403 Md. 489 (2008); Attorney Griev.

Comm’n. v. Marano, 306 Md. 792 (1986); Shapiro v. Ryan, 233

Md. 82 (1963). However, neither this Office nor any Maryland

appellate court has ever had occasion to address the orphans’

court’s power to hold a register in contempt. The reported cases,

and our understanding of the practice of the orphans’ courts,

suggest that the court’s contempt power has traditionally been

used to compel practitioners, administrators, and guardians to

40 [98 Op. Att’y

comply with the court’s rules. See, e.g., Kendrick, 403 Md. at

496-97 (noting that attorney had been held in contempt by

orphans’ court for failure to turn over estate assets to the

successor personal representative); Marano, 306 Md. at 796

(noting that attorney had been held in contempt by orphans’ court

for failure to produce records when serving as personal

representative); Shapiro, 233 Md. at 90 (overturning finding of

contempt on the grounds that the equity court, and not the

orphans’ court, had obtained jurisdiction over the administrator of

the estate at the time the contempt occurred). By contrast, we are

not aware of a single instance in which a Maryland orphans’

court, or a court of general jurisdiction, has held a register or clerk

of court in contempt.

That said, we believe that a court of general jurisdiction

could lawfully hold the clerk of court in contempt in the unlikely

event that the clerk refuses to carry out a valid court order. See

15A Am. Jur. 2d. Clerks of Court § 43 (observing that “[a] clerk

who fails to obey an order of the court may be guilty of

contempt,” and citing cases) (2011); 21 C.J.S. Courts § 339

(2006) (“As an officer of the court, a clerk of court is generally

subject to the court’s control and direction in all things necessary

to proper administration of the law during its sessions. If the

clerk fails to obey an order of the court, he or she may be guilty of

contempt.”). Although there are few reported cases over the past

200 years in which a clerk of court has been held in contempt,

those cases uniformly accept the proposition that the court’s

power of contempt may be exercised against a clerk who disobeys

a valid order of court. See, e.g., In re Lineweaver, 343 S.W.3d

401 (Tenn. Ct. App. 2010) (upholding authority of juvenile court

to hold elected clerk in contempt for failing to produce files of

inactive cases); Ex parte Hughes, 759 S.W.2d 118 (Tex. 1988)

(upholding contempt finding when clerk refused to mail docket to

attorneys with cases pending before the court); Brugh v. Savings

and Profit Sharing Pension Fund, 205 So.2d 322 (Fla. App. 1967)

(upholding contempt when clerk, in dereliction of his duties,

failed to transmit notice of appeal and record to court); State ex

rel. Caldwell v. Cockrell, 217 S.W. 524, 529 (Mo. 1919)

(upholding contempt finding for clerk’s refusal to comply with

court order requiring the use of certain forms and observing that

“[c]ourts of record of general jurisdiction always have had power

to punish as for contempt, their officers, including clerks, for

disobeying a judicial order, or otherwise obstructing the

administration of justice, or offending the dignity of the court”);

Kruegel v. Williams, 153 S.W. 903, 903-04 (Tex. Civ. App. 1913)

(upholding contempt finding where clerk failed to issue execution

Gen. 23] 41

on money judgment, observing, “It is [a] well-settled principle of

law that courts have the power to enforce the performance of its

orders and decrees through the officers of the court.”); cf. Hall v.

Pippin, 2001 Tenn. App. LEXIS 124 (Tenn. Ct. App. 2001)

(denying motion to hold clerk in contempt for failing to file

exhibits because court no longer had jurisdiction over the matter);

Crooks v. Maynard, 732 P.2d 281, 287-88 (Idaho 1987)

(declining to address appeal of order in which district court held

clerk in contempt for appointing a deputy clerk without that

court’s approval; also declining to issue writ of prohibition to

block the lower court from requiring the reassignment of

personnel to assist in the court’s functions).

Although an orphans’ court has “the same legal and

equitable powers to effectuate its jurisdiction, punish contempts,

and carry out its orders, judgments, and decrees as a court of

record with general jurisdiction in equity,” ET § 2-103, the

court’s power of contempt is necessarily restricted to the court’s

limited jurisdiction “in regard to the administration of the

personal estate of deceased persons.” Jones, 41 Md. at 361. The

orphans’ court’s power of contempt, however, theoretically could

be applied to the action or inaction of a register undertaken in the

register’s capacity as clerk of court. When acting in that capacity,

the register is performing a ministerial duty associated with the

court’s jurisdiction—things like filing, issuance of summons,

process, and orders of the court. ET § 2-208. When performing

these functions, the register, like a clerk,

“acts only as a ministerial officer of the

Court.” Corey v. Carback, 201 Md. 389,

402, 94 A.2d 629 (1953). The law requires

the clerk, when requested in writing to do so,

to “record any paper filed with his office and

required by law to be recorded . . . .” Md.

Ann. Code Cts. & Jud. Proc. art., § 2-

201(a)(3). Thus, as stated in McCray v.

Maryland, 456 F.2d 1, 4 (4th Cir. 1972),

“[c]lerical duties are generally classified as

ministerial . . . and the act of filing papers

with the court is as ministerial and inflexibly

mandatory as any of the clerk’s respon-

sibilities.” Except as otherwise expressly

provided by law, therefore, the clerk has no

discretion in the matter and no right to make

a judicial determination of whether the paper

complies with the Rules or ought to be filed.

42 [98 Op. Att’y

Director of Finance v. Harris, 90 Md. App. 506, 513 (1992);10

see also 49 Opinions of the Attorney General at 522-23 (register’s

ministerial duties include maintenance of court records and

making himself “available to the court when summoned by it to

answer an inquiry”); 61 Opinions of the Attorney General at 905

n.7 (“[W]e think the Register has no authority to refuse to

properly process a paper which is directed to the court and

presented to him for filing.”). We believe the court’s contempt

powers reach those ministerial activities that the register performs

in his or her capacity as the clerk of court.

The orphans’ court’s power of contempt, however, would

not reach actions the register takes as the primary collector of

Maryland inheritance taxes. See 6 Opinions of the Attorney

General 427, 428 (1921) (observing that the register “acts as the

agent of the State for the collection of the collateral inheritance

tax”); 49 Opinions of the Attorney General at 520. The register

assesses and collects the inheritance tax due in an estate, TG §§ 7-

214, 7-215, and is empowered to make determinations as to what

property is included within the taxable estate. See Siegel v.

Comptroller, 186 Md. App. 411, 414 (2009) (upholding Tax

Court decision concluding that register properly determined that

inter vivos gifts were “in contemplation of death” and thus subject

to inheritance tax); see also supra n.10 (discussing the

Comptroller’s oversight of register’s collection of inheritance

taxes). The orphans’ court, by contrast, has no say in how taxes

are collected:

The scrutiny and approval of the Orphans’

Court provided for by the Code as to claims

made against estates of deceased persons are

safeguards applicable and appropriate to

claims essentially of a private nature, arising

from individual transactions, and of which an

administrator cannot be presumed to have

knowledge. The merits or validity of private

demands may well be inquirable into by the

10

The Court of Special Appeals noted one exception to the

requirement that the clerk accept all filings submitted to him: Rule 1-

323, which directs the clerk not to accept a paper that lacks an

admission or waiver of service or a certificate showing the date and

manner of service. Director of Finance, 90 Md. App. at 513. Although

Title 1 of the Maryland Rules does not apply to the orphans’ court or

the registers, Rule 1-101(a), Rule 6-108(b) is substantively equivalent

to Rule 1-323 and does apply.

Gen. 23] 43

Orphans’ Court, and its sanction of their

amount be given or withheld as seems

proper; but the exercise of such a supervision

over claims for taxes, which are established

by officers specially authorized to impose

and collect them, would constitute the

Orphans’ Court a tribunal to review the

action of those conducting the Revenue

Department of the State. The acts of such

officers cannot depend upon the approval of

the Orphans’ Court for their validity, but

derive their force as proceedings of

functionaries clothed with public authority

and responsibility for the discharge of their

special duties. To devolve on the Orphans’

Court the allowance and rejection of such

claims would open for their determination the

liability of the property assessed, the

correctness of the rate and amount of

taxation, and all kindred questions.

Bonaparte v. State, 63 Md. 465, 471 (1885); cf. 58 Opinions of

the Attorney General at 73-74 (concluding that “the Comptroller

has authority over the offices of the Clerks of Court in those

matters related to revenue, e.g., collection of fees and taxes and

payment of salaries and expenses,” but has no “control over the

day-to-day operation of the Clerks’ offices”). Because the

orphans’ court has no oversight role to play with respect to tax

collection, it may not exercise the power of contempt to compel

the register to direct her tax collecting duties.

What is less clear is whether the orphans’ court may direct

the manner in which the register manages the administrative

probate process. Although the orphans’ courts have full power to

“properly administer[] justice within their assigned sphere,”

Radcliff, 360 Md. at 286, they may not act outside that sphere or

enlarge it. ET § 2-102(a) (orphans’ court may not “exercise any

jurisdiction not expressly conferred”). The relative “spheres” of

the orphans’ court and register were adjusted in 1969, when the

General Assembly revised the testamentary procedure in an effort

to “simplify the administration of estates” and eliminate “archaic,

often meaningless” provisions of testamentary law, 1969 Md.

Laws, ch. 3 (codified at ET § 1-105(a)), which had accreted over

the almost two hundred years since Maryland testamentary law

was codified in 1798. See 1798 Md. Laws, ch. 101; see generally

Shale D. Stiller and Roger D. Redden, Statutory Reform in the

44 [98 Op. Att’y

Administration of Estates of Maryland Decedents, Minors and

Incompetents, 29 Md. L. Rev. 85 (1969).

The 1969 amendments were the result of a four-year review

process. In 1965, the General Assembly adopted Joint Resolution

No. 23, which called upon the Governor to appoint a commission

that would submit a proposal for recodifying and revising

Maryland’s testamentary laws. In that same year, Governor

Tawes appointed the Governor’s Commission to Review and

Revise the Testamentary Law of Maryland, commonly known as

the “Henderson Commission” after its Chairman, William L.

Henderson, the former Chief Judge of the Court of Appeals. See

Elder v. Smith, 412 Md. 288, 301 n.11 (2010) (describing origin

of commission). The Henderson Commission issued three

reports, the second of which, issued on December 5, 1968, is most

relevant here.11 See Second Report of Governor’s Commission to

Review and Revise the Testamentary Law of Maryland, Article

93, Decedents’ Estates (1968) (“Second Henderson Commission

Report”). In its second report, the commission proposed a

“comprehensive restatement” of Maryland testamentary law, id. at

i, which was ultimately introduced as an Administration measure

and adopted by the Legislature with amendments. Stiller and

Redden, 29 Md. L. Rev. at 87-88 (describing history of

commission and subsequent legislation); see also Piper Rudnick

LLP v. Hartz, 386 Md. 201, 222-23 (2005) (providing a history of

the 1969 changes); Genesis Health Ventures v. Muller, 124 Md.

App. 671, 675 n.2 (1999) (same).

The Henderson Commission, believing that its mandate did

not give it the authority to make major changes in the basic

testamentary system, took no position on such issues as the “use

of lay judges,” “the operation of the Registers’ offices on a fee

basis,” and the “utilization of the Registers as tax collectors.”

Second Henderson Commission Report at i, 14. The legislation

that followed thus is reported to have effected “[n]o major

changes.” Stiller and Redden, 29 Md. L. Rev. at 90; Genesis

Health Ventures, 124 Md. App. at 675 n.2 (“The procedures and

powers of the Orphans’ Courts . . . underwent minimal change.”).

11

The commission’s first report was issued in 1966 and related

solely to the Maryland system of “death taxes.” The third report,

issued in 1970, related to the method of compensating personal

representatives who administer the estates of decedents. See Third

Report of Governor’s Commission to Review and Revise the

Testamentary Law of Maryland at 1 (1970).

Gen. 23] 45

What did change, however, is the relative roles of the orphans’

courts and registers within the system.

Most relevant to our current analysis, the 1969 legislation

codified the current “administrative” probate process and gave to

the register the power to appoint personal representatives

administratively without court approval, whether or not the

orphans’ court was currently in session. See ET § 5-301; Stiller

and Redden, 29 Md. L. Rev. at 100-01. Under pre-1969 law, the

register could grant letters of administration only when the

orphans’ court was not sitting, see Md. Ann. Code art. 93, § 297

(1964 Repl. Vol.), which had “led to a widespread practice of

purposely offering wills for probate during those hours when the

Orphans’ Courts [we]re not in session.” Stiller and Redden, 29

Md. L. Rev. at 100. Thus, while the terms “administrative” and

“judicial” probate generally “reflect[ed] traditional practices,” id.

at 100, the formalization of administrative probate was “in effect

a withdrawal of jurisdiction from the [orphans’] court.” Schaefer

v. Heaphy, 45 Md. App. 144, 151 (1980). The Henderson

Commission itself identified the establishment of administrative

probate as one of the two instances in which the newly enacted

statute was “intend[ed] to change the existing powers of the

Court. . . .” Second Henderson Commission Report at 15; see

also Schaefer, 45 Md. App. at 151 (same).

The Henderson Commission believed that the codification of

administrative probate would, “by raising the importance and

dignity of the office of the Register of Wills to a quasi-judicial

status, expedite and simplify the administration of estates.”

Second Henderson Commission Report at 14. It is our

understanding that the vast majority of estates are now probated

through the administrative system, for which reason we have

previously described the registers as the “primary supervising

authority over the administration of estates.” 61 Opinions of the

Attorney General at 905 n.7; see Allan J. Gibber, Gibber on

Estate Administration, § 2.26 (5th ed., 2011 supp.)

(“Administrative probate is within the exclusive jurisdiction of

the register of wills. . . .”). With the assignment of a greater role

to the registers within the realm of administrative probate came a

concomitant reduction of the orphans’ court’s role within that

realm, and, likely, some limitation on the orphans’ court’s power

of contempt with regard to that function of the registers.

This is not to say that the orphans’ courts have no role to

play within administrative probate. As we have previously

observed, “the distinction between administrative and judicial

probate exists only with respect to the procedure for appointment

46 [98 Op. Att’y

and qualification of the personal representative. Once the

appointment process has been completed, there is no difference

thereafter in probate procedure.” 57 Opinions of the Attorney

General 566 (1972). Thus, even when the register opens the

estate and appoints the personal representative, the court reviews

and approves periodic accountings, Rule 6-417(e), and may

institute judicial probate if the petition for administrative probate

“is materially incomplete or incorrect in any respect,” ET § 5-

402(c), or if, upon request for an interested person, the court finds

that there was “fraud, material mistake, or substantial irregularity

in the prior probate proceeding.” ET § 5-304(b)(3); see also 61

Opinions of the Attorney General at 899 (observing that, “even

under administrative probate, the Orphans’ Court is the final

authority in passing administration accounts reflecting distri-

butions and disbursements”). The Court of Appeals has also

“long recognized the power of the Orphans’ Courts to correct

errors,” for example, to revoke letters of administration, abrogate

and modify orders, re-open the administration of an estate, refund

money to the estate, or reduce the amount of a commission.

Radcliff, 360 Md. at 287-88. Thus, even though the General

Assembly granted the register arguably “exclusive” authority to

initiate administrative probate, the orphans’ court retains the

authority to determine how the estate ultimately is administered.

Whether a particular action of the register falls within the

orphans’ court’s sphere of authority, and thus potentially would

be subject to the orphans’ court’s power of contempt, is

necessarily a fact-dependent determination that we cannot make

within the context of this opinion. We note, however, that the

orphans’ court has other ways to effectuate its decisions—

approval of accountings, instituting judicial probate, correcting

errors—that are better suited to the statutory scheme than holding

the register in contempt. That scheme, particularly after the 1969

amendments, envisions that the orphans’ courts and the registers

would collaborate in the administration of estates, not that one

would dictate to the other.

In addition to the limitations discussed above,12 other

considerations similarly caution against holding the register—a

12

There are, of course, generally applicable limitations on the

exercise of the power of contempt that would apply to the orphans’

courts to the same extent that they apply to courts of general

jurisdiction. Title 15, Chapter 200 of the Maryland Rules, for example,

restricts the manner in which the power of contempt may be exercised.

Generally speaking, the court must issue a show cause order that is

(continued . . .)

Gen. 23] 47

constitutionally-created, elected officer—in contempt. For

example, we have previously observed that the register’s clerical

obligations to the orphans’ court may not be construed or

enforced in a manner that would disrupt the many other functions

of the position. See, e.g., 49 Opinions of the Attorney General at

523 (concluding that, due to the register’s other responsibilities,

the register need not be physically present during all meetings of

the orphans’ court). Given the considerable overlap that may

occur between the register’s tax-collection and estate

responsibilities, see 58 Opinions of the Attorney General at 73,

the court must exercise great care to ensure that its vindication of

its jurisdiction does not have collateral consequences for the

public fisc.

With these principles in mind, we have previously advised

that disputes between competing constitutional officers are

“perhaps most appropriately worked out among the parties.” 69

Opinions of the Attorney General 57 n.1 (1984) (addressing the

Comptroller’s refusal to authorize funding for deputy clerks that

the court ordered the clerk to hire). We repeat that advice here

and echo the admonition of the Florida District Court of Appeal,

when faced with a dispute between a judge and clerk that resulted

in a finding of contempt:

Although unnecessary to this opinion and

unsolicited by the parties, we feel compelled

to make the following observation. Because

our judicial system is under constant assault

“reasonably definite, certain, and specific so that the party may

understand precisely what conduct the order requires.” 5A Maryland

Law Encycl., Contempt § 12 (2001). And as several Maryland cases

have made clear, an adjudication of contempt will not be sustained

when the court order is “void for lack of jurisdiction of the court to pass

the order. . . .” See, e.g., Shapiro, 233 Md. at 86-87. In such

circumstances, the finding of contempt will be overturned on appeal,

id., or may be preemptively challenged through the filing of a writ of

prohibition in the circuit court. See Green v. Nassif, 401 Md. 649

(2007) (dismissing as moot appeal from writ of prohibition issued to

orphans’ court to block hearing to remove a personal representative).

Finally, the Court of Special Appeals has stated that the power of

contempt must be used, not to “protect the personage of the judge from

real or imagined injury to his pride or dignity, but to assure the proper

conduct of the orderly administration of justice over which the judge

has been designated to preside.” Thomas v. State, 21 Md. App. 572,

578 (1974); see also Roll and Scholl, 267 Md. at 732 (abuses of the

power “must be guarded against”).

48 [98 Op. Att’y

from many sources and for many reasons,

some valid, some invalid; and because

actions such as this one heap further criticism

upon our judicial system, however good the

intention of the parties, we suggest that the

parties here, as well as those finding

themselves in similar situations, hereafter

strive to work out internal disputes with this

thought in mind—will the action I take be

beneficial to the efficient and economical

administration of justice; will it help build a

better judicial system.

Corbin v. Slaughter, 324 So.2d 203, 204 (Fla. Dist. Ct. App.

1975) (reversing issuance of writ of prohibition blocking county

judge’s show cause order to hold clerk in contempt for refusing to

provide the judge with the names of the deputy clerks assigned to

him within a specified time).

In sum, orphans’ courts, like circuit courts, may effectuate

their jurisdiction, enforce their orders, and punish contempts. As

to the register, however, the contempt power is limited by the fact

that not all of the register’s functions fall within the orphans’

court’s limited jurisdiction. The court’s power is also limited by

the extraordinary nature of contempt, which is rendered

particularly extraordinary in light of the other remedies available

to an orphans’ court.

B. The Orphans’ Courts Do Not Have the Authority to

Appoint, Discipline, or Terminate Employees Within the

Office of the Register.

Although neither this Office, nor any Maryland court, has

had occasion to address the orphans’ court’s role in personnel

matters within the register’s office, we conclude that it has no

such role to play. Section 2-208(b) of the Estates and Trusts

Article explicitly places the power to approve the register’s

appointments in the Comptroller, not the orphans’ court:

[The register] shall appoint deputies and

clerks required for the efficient operation of

his office. Appointments and compensation

of deputies and clerks shall be approved by

the Comptroller. When qualified, every

deputy shall have the power and authority to

act in the place of the register and every act

Gen. 23] 49

performed by a deputy shall have the force

and effect as if performed by the register.

See also SG § 4-108(a) (“The Comptroller shall set the number

and compensation of assistant clerks or deputies employed by

each register of wills.”). Former Article 93, § 306 similarly gave

the Comptroller a role to play with respect to personnel decisions

within the register’s office:

The Comptroller shall, from time to time,

limit and fix the number and compensation of

assistant clerks or deputies to be employed

by any such register, and . . . such registers of

wills are hereby authorized to appoint such

assistant clerks and deputies . . . .

Md. Ann. Code art. 93, § 306 (1964 Repl. Vol.). Neither

provision provides any role for the orphans’ court in the

appointment or approval of deputy registers and clerks. Inasmuch

as the court “may not, under pretext of incidental power or

constructive authority, exercise any jurisdiction not expressly

conferred,” ET § 2-102(a), we conclude that the orphans’ court

has no direct role in the hiring of employees within the office of

the register of wills.

Nor does the orphans’ court’s “control and direction” over

the register of wills, provided for at § 2-208(e) of the Estates and

Trusts Article, extend to the appointment or termination of staff

within the register’s office. As discussed above, the orphans’

court’s “control and direction” over the register is limited to the

register’s performance of the ministerial duties the register

performs in her capacity as clerk of the orphans’ court. Personnel

decisions are neither ministerial nor judicial, but executive. Boyer

v. Thurston, 247 Md. 279, 295 (1967) (“It seems clear that the

appointment of a clerk is not judicial business in the ordinary use

of those words, but is in the nature of an executive act . . . .”).

Thus, although the orphans’ court has the power to fill a vacancy

in the position of register of wills, it has no power to do so with

respect to the “deputies and clerks required for the efficient

operation of” the office of the register of wills. ET § 2-208(b).

III

Conclusion

In summary, it is our opinion that the orphans’ courts have

no role in either the appointment or termination of staff in the

50 [98 Op. Att’y

registers’ offices. The Legislature has given the registers control

over those decisions, subject to the authority of the Comptroller to

approve appointments. The orphans’ court, as a court of special

limited jurisdiction, possesses only those powers statutorily

granted to it or necessarily incident thereto, and all such powers

are limited to effectuating the orderly and expeditious settlement

of estates. Those statutory and inherent powers do not include the

power to control the appointment and termination of personnel in

the office of the register.

With regard to the orphans’ court’s authority to ensure that

its orders and decisions are followed by the register of wills, we

conclude that disputes between the orphans’ courts and the

registers are best resolved internally. Failing that, we believe the

orphans’ court has the same power of contempt that a court of

general jurisdiction has and, theoretically, that it may exercise that

power against the register. The power may be used, however,

only to direct the register’s performance of clerical duties in

connection with the administration of estates; it may not be

exercised with respect to the other functions the registers perform.

But given the unseemliness of one constitutional officer

sanctioning another, we reiterate that any controversies that may

arise between the two officers would be better resolved internally,

either through professional cooperation or through the

intercession of the Chief Judge of the Court of Appeals.

Douglas F. Gansler

Attorney General

Adam D. Snyder

Chief Counsel,

Opinions & Advice