Can a court-appointed standing examiner in Maryland also serve on a Judicial Nominating Commission?

Plain-English summary

The State Court Administrator asked the Attorney General whether a "standing examiner," a person appointed by the judges of a circuit court under Maryland Rule 2-542 to take evidence in certain uncontested proceedings, holds an "office of profit or trust" for purposes of an executive order that barred public officers from serving on the Appellate and Trial Courts Judicial Nominating Commissions.

The Attorney General concluded that a standing examiner does not hold a public office, so service as an examiner would not disqualify someone from sitting on a Judicial Nominating Commission. The opinion applied the traditional multi-factor test the office had used before for identifying a public officer, most importantly whether the position exercises some portion of the State's sovereign power in its own right. Because an examiner's role is limited to gathering evidence under a court's order of reference, cannot rule on objections, and produces a record subject to full review and exceptions in front of the appointing judge, the opinion found the position lacks the independent decision-making authority that would make it a public office. The opinion drew a direct parallel to Maryland case law holding that judicial masters, who likewise gather evidence for a judge's ultimate decision, are not public officers either.

Currency note

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

Common questions

Why didn't a standing examiner count as holding a public office under Maryland law in this 1987 opinion?
The Attorney General focused on whether the position let the holder exercise sovereign power "in his own right." An examiner's job under Rule 2-542 was limited to taking evidence for the court and could not rule on objections or issue a final decision; the judge retained all decision-making authority, so the opinion found the position did not meet the public-officer test.

Did this opinion treat a standing examiner the same way Maryland courts had treated judicial masters?
Yes. The opinion drew directly on Matter of Anderson and Cohen v. Goldstein, which held that masters are not entrusted with any part of the state's judicial power and are therefore not public officers. The opinion reasoned that if a master, whose role is more central to litigation than an examiner's, is not a public officer, an examiner could not be one either.

Had the Attorney General's office been consistent on this kind of question before this opinion?
Not entirely. The opinion noted that the office had given inconsistent guidance in the past about whether various judicial masters held public office, and it formally overruled two earlier opinions (44 Opinions of the Attorney General 157 and 50 Opinions of the Attorney General 57) that had reached the opposite conclusion, in light of the more recent Anderson and Cohen v. Goldstein decisions.

Background and statutory framework

Executive Order 01.01.1987.06 reestablished Maryland's Appellate and Trial Courts Judicial Nominating Commissions, which recommend judicial nominees to the Governor, and barred anyone holding an "office of profit or trust under the Constitution or laws of this State" from serving as a commission member. The opinion explained that this phrase was intended to mirror the same "office of profit or trust" language used elsewhere in Maryland law and prior opinions construing it.

Under Maryland Rule 2-542, a majority of a circuit court's judges may appoint a standing examiner to take evidence in referred matters, and the examiner serves "at the pleasure of the appointing court" as an officer of the court in the specific matter referred. An examiner can administer oaths, examine witnesses, and issue subpoenas, but cannot rule on objections or refusals to answer, which must go to the court, and the examiner's completed record is subject to exceptions any party may file with the judge.

Applying the office's established public-officer criteria, most importantly whether the position exercises sovereign power "in his own right" for the public's benefit, the opinion found that an examiner's evidence-gathering role, subject throughout to the referring judge's control and final review, does not meet that standard. The opinion relied heavily on the Court of Appeals' treatment of judicial masters in Matter of Anderson, which held masters are entrusted with no part of the state's judicial power, and the Court of Special Appeals' Cohen v. Goldstein, which held masters are not public officers for pension-benefit purposes. Because an examiner's function is comparable to, if not narrower than, that of a master, the opinion concluded an examiner likewise does not hold public office, and it formally overruled two of its own earlier opinions that had reached inconsistent conclusions about similar master positions.

Citations

Statutes:

• Executive Order 01.01.1987.06 (barring public officers from Judicial Nominating Commission service)
• Maryland Rule 2-542 (appointment, powers, and duties of a standing examiner)

Cases:

• Duncan v. Koustenis, 260 Md. 98, 105 (1970)
• Howard County Commissioners v. Westphal, 232 Md. 334, 343 (1963)
• Matter of Anderson, 272 Md. 85, 106 (1974)
• Cohen v. Goldstein, 58 Md. App. 699 (1984)
• Bris Realty Co. v. Phoenix Savings & Loan Ass'n, 238 Md. 84, 89 (1965)

Source

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

Original opinion text

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

Public Officers—Judicial Nominating Commission—Eligibility—Standing Examiner Appointed By Circuit Court Does Not Hold "Office of Profit or Trust."

July 9, 1987

The Honorable James H. Norris, Jr.
State Court Administrator

You have requested our opinion on whether a standing examiner appointed by the judges of a circuit court of a county holds an "office of profit or trust under the Constitution or laws of this State," within the meaning of the executive order that precludes public officers from serving on a Judicial Nominating Commission.

For the reasons stated below, we conclude that a standing examiner does not hold a public office. Accordingly, a standing examiner is not precluded from service on a Judicial Nominating Commission.

I
Background

Under Executive Order 01.01.1987.06 (January 29, 1987), Governor Schaefer reestablished the Appellate and Trial Courts Judicial Nominating Commissions. These commissions recommend to the Governor nominees for vacancies in the respective courts.

Members of the commissions may not hold "offices of profit or trust under the Constitution or laws of this State . . . ." Executive Order 01.01.1987.06, ¶¶B(1) and C(l). Hence, if a standing examiner holds an office of profit or trust, he or she may not serve on a Judicial Nominating Commission.

In 68 Opinions of the Attorney General 358, 359 (1983), this office concluded that the identical phrasing in a predecessor executive order was intended to mirror the various provisions in Maryland law that refer to public officers and to apply prior interpretations of those provisions. Hence, we apply this body of law to the position of standing examiner.

II
Standing Examiners

Under Rule 2-542(a)(l), "[a] majority of the judges of the circuit court of a county may appoint a standing examiner and shall prescribe the compensation, fees, and costs of the examiner." A standing examiner "serves at the pleasure of the appointing court and is an officer of the court in which the referred matter is pending." Rule 2-542(a)(3).

The task of an examiner is to take evidence pursuant to the court's order of reference.1 An examiner generally has all powers necessary to the conduct of an evidentiary hearing.2 However, the examiner does not have the power to rule on objections or refusals to answer; these must be referred to the court. Rule 2-542(d)(3).

Upon the completion of the hearing, the examiner certifies the hearing record to the court. Rule 2-542(f). Any party "may file exceptions to the accuracy, completeness, or authenticity of the record or for the purpose of presenting to the court objections made before the examiner."

III
Analysis

Of the criteria for determining whether a position is a public office, "the single most important characteristic of a public officer is that the 'public servant exercise[s] in his own right some of the sovereign powers of government for the benefit of the public.'" 68 Opinions of the Attorney General at 361 (quoting Duncan v. Koustenis, 260 Md. 98, 105 (1970)). See also, e.g., Opinion No. 87-010 (February 19, 1987) (unpublished); 72 Opinions of the Attorney General 271 (1987); 65 Opinions of the Attorney General 381 (1980); 64 Opinions of the Attorney General 255 (1979).3

In 24 Opinions of the Attorney General 612 (1939), this office determined that the position of equity examiner was not a public office, for purposes of Article 35 of the Declaration of Rights. Although lacking a full explanation for its conclusion, the opinion suggested that an examiner exercised no sovereign power, for all of the examiner's actions were later passed upon by the court. Cf. 17 Opinions of the Attorney General 191, 192 (1932). Accord, 26 Opinions of the Attorney General 281 (1941). More recently, this office held that a hearing officer in the Department of Personnel was not a public officer:

"The hearing officer does render decisions on employee controversies, but they are not final decisions and are subject to approval, rejection or modification by the Secretary of Personnel. Therefore, the decision making power is really vested in the Secretary, and not in the hearing officer. Moreover, according to the job specifications, the hearing officer is supervised by the Director of Employer-Employee Relations. These factors, we feel, preclude the hearing officer from exercising any portion of the sovereignty of the State 'in his own right', since he . . . serves under the 'direction and control of superiors'." 57 Opinions of the Attorney General 266, 268-69 (1972) (quoting Howard County Commissioners v. Westphal, 232 Md. 334, 343 (1963)).

Likewise, an examiner renders no final decisions. Decision-making power is vested in the judge, not in the examiner. Moreover, the examiner's activities are subject to the court's definition (in the order of reference) and supervision.

We find especially pertinent the precedent regarding masters. "[U]nder the Maryland Constitution a master is entrusted with no part of the judicial power of this State. . ." Matter of Anderson, 272 Md. 85, 106 (1974). Accordingly, the Court of Special Appeals has held that masters are not public officers, for purposes of certain special pension benefits. Cohen v. Goldstein, 58 Md. App. 699 (1984). If a master is not a public officer, we do not see how an examiner could be viewed as one. See Bris Realty Co. v. Phoenix Savings & Loan Ass'n, 238 Md. 84, 89 (1965).4

In short, we conclude that an examiner is not a public officer, primarily because an examiner does not exercise any of the sovereign powers of the State. Although the gathering of evidence is important, it is not akin to final adjudicatory decisionmaking.

IV
Conclusion

In summary, it is our opinion that a standing examiner does not hold an "office of profit or trust," within the meaning of Executive Order 01.01.1987.06. Accordingly, a standing examiner is not precluded from service on a Judicial Nominating Commission.

J. Joseph Curran, Jr., Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice

Editor's Note: Since the issuance of this opinion, the Governor has reissued his executive order governing the Judicial Nominating Commissions. See Executive Order 01.01.1988.06 (March 31, 1988). However, the provision discussed in the opinion was not changed.

1 Rule 2-542(b) provides: "On motion of any party or on its own initiative, the court may refer to an examiner, for the taking of evidence, issues in uncontested proceedings not triable of right before a jury and proceedings held in aid of execution of judgment pursuant to Rule 2-633. The order of reference may prescribe the manner in which the examination is to be conducted and may set time limits for the completion of the taking of evidence and the submission of the record of the examination."

2 Rule 2-542(c) provides: "Subject to the provisions of the order of reference, an examiner has the power to regulate all proceedings in the hearing, including the powers to: (1) Direct the issuance of a subpoena to compel the attendance of witnesses and the production of documents or other tangible things; (2) Administer oaths to witnesses; (3) Examine witnesses; (4) Convene, continue, and adjourn the hearing, as required; and (5) Recommend contempt proceedings or other sanctions to the court."

3 The generally accepted characteristics of a public office are as follows: "(1) The position was created by law and involves continuing and not occasional duties. (2) The holder performs an important public duty. (3) The position called for the exercise of some portion of the sovereign power of the State. (4) The position has a definite term for which a commission issued and a bond and an oath are required. (5) The position is one of dignity and importance." 59 Opinions of the Attorney General 154, 156 (1974).

4 Prior to Anderson and Cohen v. Goldstein, this office gave inconsistent opinions about the public officer status of masters. Compare 44 Opinions of the Attorney General 157 (1959) (juvenile master holds public office) and 50 Opinions of the Attorney General 57 (1965) (examiner-master holds public office) with 53 Opinions of the Attorney General 522 (1968) (juvenile master does not hold public office—unclear decision). In light of the more recent cases and this opinion, 44 Opinions of the Attorney General 157 and 50 Opinions of the Attorney General 57 are overruled.