Can a Maryland orphans' court judge appoint himself, or a fellow judge on that same court, to fill a vacancy as register of wills?

Plain-English summary

A legislative auditor reviewing the Office of Register of Wills for Somerset County asked the Attorney General about how the office's register had come to hold the job. In November 1988, when the sitting register announced his retirement, a majority of the Orphans' Court for Somerset County (its two judges) voted to appoint the court's Chief Judge to fill the vacancy under Article IV, §41 of the Maryland Constitution, which lets an orphans' court fill a register vacancy by appointment. The Chief Judge then resigned his judgeship, was sworn in as register, and served (drawing the register's salary) until he was elected to the position outright in 1990. The auditor asked whether a sitting member of an orphans' court could be appointed register by that same court, and if not, whether the judge would have to repay the salary he had already earned.

The opinion concluded that under the common law, a member of an orphans' court could not be appointed register of wills by that same court. It relied on Hetrich v. County Commissioners, in which Maryland's highest court held a county commissioner ineligible for appointment by his fellow commissioners to the office of county business manager, reasoning that letting an appointing body name one of its own members creates a risk of favor-trading and undermines the impartiality the public is entitled to expect, regardless of whether the appointee's own vote was needed to make the appointment. The opinion rejected three counterarguments: that the register and judge positions were not truly "conflicting" (the orphans' court supervises the register when the register acts as its clerk or handles estates), that the common law rule shouldn't reach constitutional offices (the Declaration of Rights preserves the common law generally, and prior opinions had applied similar rules to constitutional officers), and that applying the rule would improperly add a new qualification to the register's office (the Constitution's silence on specific register qualifications is exactly when a common law ineligibility rule can fill the gap).

On the salary question, the opinion concluded the judge did not have to give back the pay he had earned, because although his appointment was invalid, he had served as a "de facto officer" who acted in good faith under color of law, and Maryland precedent treats such an officer's performance of the job's duties as valid for purposes like salary even when the underlying appointment turns out to be defective. The opinion also noted the judge had since been elected to the register position in his own right, so there was no ongoing problem with his continued service.

Currency note

This opinion was issued in 1991. 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 the current text of Article IV, §41 of the Maryland Constitution and any statutory changes to register of wills appointment procedures before relying on any specific rule described here.

Common questions

Could Maryland's orphans' court judges appoint one of their own to fill a vacant register of wills seat?
No. The opinion concluded that under the common law rule from Hetrich v. County Commissioners, a body cannot appoint one of its own members to a position it has power over, and applied that rule to bar an orphans' court from naming one of its judges as register of wills.

Why did the opinion say the judge and register positions were "conflicting" even though they are different jobs?
Because the orphans' court has general supervisory power over the register to the extent the register acts as the court's clerk or handles the administration of estates, which the opinion found created the kind of overlapping authority the common law rule against self-appointment is meant to prevent.

Did the judge who was improperly appointed have to pay back the salary he earned as register?
No. The opinion concluded that because he served in good faith as a de facto officer under color of law, he was not required to repay the salary, and noted he had since been separately elected to the register position in his own right.

Background and statutory framework

In November 1988, after Register of Wills Littleton T. Dryden announced his retirement, the two-judge Orphans' Court for Somerset County voted to appoint its Chief Judge to fill the vacancy under Article IV, §41 of the Maryland Constitution. The Chief Judge resigned his judgeship, was sworn in as register, performed the office's duties for the statutory salary, and was elected to a full term as register at the November 1990 general election before this opinion issued.

The opinion's core authority was Hetrich v. County Commissioners, in which the Court of Appeals held that "at common law, on the grounds of public policy a member of an appointing body is ineligible for appointment to a conflicting office by that body, even though his own vote is not essential to the appointment," reasoning that an appointing board cannot fully dispel the appearance of ulterior motives when it elevates one of its own, since the appointee's relationships with the remaining members create an opportunity to place them under a sense of obligation. The opinion found a genuine conflict between the register and orphans' court judge roles because the court has general supervisory power over a register acting as its clerk or in estate administration, citing prior AG opinions on that supervisory relationship. It rejected the argument that Hetrich's common law rule should not reach constitutional offices, pointing to Article 5 of the Declaration of Rights preserving Maryland's common law except as altered by statute, and to prior AG opinions applying the incompatible-offices doctrine to other constitutional officers. It also rejected the argument that applying the rule would add an unauthorized qualification to the register's office, since Article IV, §41 sets out no specific register qualifications that a common law ineligibility rule would displace, distinguishing Humphreys v. Walls' rule that the legislature cannot vary constitutionally-specified qualifications unless the constitution allows it (a rule inapplicable where, as here, the Constitution is simply silent on the qualification in question).

On the salary question, the opinion applied Kimble v. Bender's treatment of a good-faith appointee acting under color of law as a valid de facto officer, concluding no repayment was required, consistent with the office's own prior opinions reaching the same result in comparable circumstances. A footnote observed that the ineligibility rule is not of constitutional dimension and could be abrogated by statute if the General Assembly chose to expressly permit such appointments.

Citations and references

Statutes:

• Article IV, §41 of the Maryland Constitution, authorizing an orphans' court to fill a register of wills vacancy by appointment
• Article 5 of the Declaration of Rights, preserving Maryland's common law except as altered by statute
• Article III, §13 of the Maryland Constitution, referenced regarding party central committee nominations to fill legislative vacancies (a distinguishable context the opinion did not need to resolve)

Cases:

• Hetrich v. County Commissioners, 222 Md. 304, 159 A.2d 642 (1960), the controlling common law rule against a body appointing one of its own members to a conflicting office
• Humphreys v. Walls, 169 Md. 292, 303, 181 A. 735 (1935), on when constitutionally-specified qualifications for an office can or cannot be varied
• Kimble v. Bender, 173 Md. 608, 622-23, 196 A. 409 (1938), on a good-faith appointee's valid acts as a de facto officer

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/1991/Volume76_1991.pdf (this opinion appears at printed pages 142-146 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

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

COURTS AND JUDGES

Orphans' Court - Register Of Wills - Orphans' Court Judge
Is Ineligible To Be Appointed Register

                        February 27, 1991

Mr. Anthony J. Verdecchia
Legislative Auditor

 In connection with a recent legislative audit of the Office of Register

of Wills for Somerset County, you have requested our opinion on the
following questions:

 1. When an orphans' court fills a vacancy in a register of wills

position pursuant to Article IV, §41 of the Constitution, is a member of
the court eligible to be appointed to the seat?

2. If the judge were ineligible for such an appointment, would the

judge have to repay the salary received as register?

  For the reasons detailed below, we conclude as follows:

 1. Under the common law, a member of an orphans' court is

ineligible to be appointed by that court as a register of wills.

 2. Although the present (and now elected) Register of Wills for

Somerset County was not eligible for appointment to that post, he
validly performed the duties of the office in good faith under color of
law. Therefore, we do not believe that he should be required to repay
the salary he received during the period of his appointment.

                                I

                     Factual Background

  In early November 1988, Littleton T. Dryden announced his

retirement from the position of Register of Wills for Somerset County,
effective November 30, 1988. On November 15, 1988, a majority of the
Orphans' Court for Somerset County, comprising Chief Judge Miller
and Judge Thomas W. Coulburne, voted to name Chief Judge Miller to
fill Dryden's unexpired term in hopes that he could be sworn in on
December 1, 1988. On the same day, Chief Judge Miller tendered a
letter of resignation to the Governor, noting that he "will be appointed
by the Judges of the Orphans' Court for Somerset County to fill the
vacancy created by the retirement of the present Register of Wills."

 On December 1, 1988, Chief Judge Miller and Judge Coulburne

signed an order appointing Miller as register until the 1990 general
election. Subsequently, Miller was sworn in as register and performed
the duties of the office for the salary set by law. At the November 1990
general election, Miller was elected to a term as register. He took the
oath of office and has begun serving the new term.

                                II

                       The Hetrich Case

 To determine the validity of Chief Judge Miller's appointment as

register, we must consider the decision of the Court of Appeals in
Hetrich v. County Commissioners, 222 Md. 304, 159 A.2d 642 (1960).
There, the Court held that a county commissioner was ineligible for
appointment by the commissioners to the office of county business
manager. The Court observed that, "at common law, on the grounds of
public policy a member of an appointing body is ineligible for
appointment to a conflicting office by that body, even though his own
vote is not essential to the appointment." 222 Md. at 309. Distilling
cases from other jurisdictions, the Court discussed the rationale for this
rule:

     The cases ground the public policy prohibition on the
     need for impartial official action, without suspicion of
     bias which may be against public interest. They say
     the appointing board cannot absolve itself of ulterior
     motives if it appoints one of its own, whether or not
     his vote was necessary to the appointment, since the
     opportunity improperly to influence the other members
     of the board is there. The necessity that public bodies
     be free from personal influence in making
     appointments to office cannot be secured when the
     appointee has the real opportunity his associations and
     relations afford to place his colleagues under
     obligations they may feel require repayment.

222 Md. at 309-310.

 It might be argued that the Hetrich rule of ineligibility is

inapplicable to the present case because: (1) the office of register and
orphans' court judge are not "conflicting"; (2) the common law rule
should not apply to constitutional offices; and (3) if the rule were
applied here, it would impermissibly add a qualification to the office of
register. In our view, none of these contentions is persuasive.

 First, even assuming Hetrich required a showing of conflicting

positions, we believe such a conflict exists here.1 Not only does an
orphans' court fill a register's vacancy, it 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. See
61 Opinions of the Attorney General 893, 900 (1976); 49 Opinions of
the Attorney General 520 (1964).

    1
         The principal contention advanced in Hetrich was that it would be

"incompatible" for a county commissioner to serve as both a county manager and
a commissioner. Rather than conclude that the commissioner in question had
vacated his seat, the Court determined that the appointment itself was invalid.
Neither the rationale offered for the common law rule of ineligibility in Hetrich, see
222 Md. at 309-310, nor in caselaw generally, see 63A Am. Jur. 2d Public Officers
and Employees §100 (1984), appears to limit the rule to appointments to
"conflicting" positions. Nevertheless, because we believe the positions here are in
conflict, we need not decide whether such a conflict is a prerequisite to application
of the rule. In addition, we also need not determine here whether the Hetrich rule
has any applicability where the appointing authority is not a public officer or a body
of public officers - for example, where a party central committee nominates one of
its members to fill a legislative vacancy under Article III, §13 of the Maryland
Constitution.

 Second, although a register of wills and an orphans' court judge are

constitutional offices, this fact alone would not relieve them from the
obligation to comply with common law requirements. The Constitution
itself, in Article 5 of the Declaration of Rights, preserves the common
law in Maryland (to the extent that it is not altered by statute). And we
have not hesitated to apply other common law rules, such as the
common law rule of incompatible offices, to constitutional officers.
See, e.g., 60 Opinions of the Attorney General 121, 133-34 (1975).

 Third, application of a common law rule against self-appointment

would not add a new qualification to the office of register, namely that
he or she not be an orphans' court judge. The Constitution, in Article
IV, §41, sets forth no specific qualifications to hold office as a register
of wills that would be abridged by application of a common law rule of
ineligibility. Cf. Humphreys v. Walls, 169 Md. 292, 303, 181 A. 735
(1935).2

For all of these reasons, it is our opinion that the common law rule

enunciated in the Hetrich case bars an orphans' court from appointing
one of its members as register of wills.3

    2
       In Humphreys, the Court of Appeals wrote that:
      It is a general rule that, where the Constitution states the
      essential qualifications of an official, elective or appointive,
      created by it, they cannot be varied by the Legislature unless
      authorized by the instrument itself. ... Where the Constitution
      is silent, or where the office is created by statute, it may
      prescribe the conditions of ineligibility....

169 Md. at 303.
3
Hetrich's rule of ineligibility is not of constitutional dimension. It can
be abrogated by statute to permit such appointments. See 60 Opinions of the
Attorney General 121, 134 (1975).

                                     III

                                  Salary

Even though Chief Judge Miller was ineligible to be appointed

register of wills, he was a de facto officer whose acts were
unquestionably valid. Kimble v. Bender, 173 Md. 608, 622-23, 196
A. 409 (1938). The appointment was made in good faith and the
register discharged the duties of the position. And it is also noteworthy
that in the past, in some jurisdictions, orphans' court judges have
appointed one of their number as a register of wills.4 Under these
circumstances, we see no obligation for the register to return the salary
he earned during his appointment. See 65 Opinions of the Attorney
General 373, 380 n.11 (1980); 60 Opinions of the Attorney General
266, 271-72 (1975).

                                   IV

                              Conclusion

 In summary, it is our opinion that an orphans' court judge may not

be appointed by that court to be register of wills. However, under the
circumstances, the present Register of Wills for Somerset County,
although ineligible for appointment, need not repay the salary that he
received as an appointee.

                                                J. Joseph Curran, Jr.,
                                                Attorney General

                                                Robert A. Zarnoch
                                                Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions & Advice

   4
      Register Miller was also elected in his own right to a new term. Thus, no

problem is presented by his present service in the position.