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