State v. Phillips , 457 Md. 481 ( 2018 )

State of Maryland v. Bashunn Christopher Phillips (No. 49, September Term, 2017)
Opinion by Wilner, J.
The defendant in a criminal case moved in limine to preclude the State from offering
certain evidence on the ground that it was unreliable under Reed v. State, 283 Md. 374(1978). A trial judge granted the motion, and the State sought in banc review, which
was untimely in two different respects. Nonetheless, the Circuit Administrative Judge
designated an in banc court, which reversed the trial judge’s ruling, whereupon the
defendant filed an appeal to the Court of Special Appeals. That Court denied the
State’s motion to dismiss and held that the in banc panel was without jurisdiction to
consider the State’s request. The Court of Appeals granted certiorari, affirmed the
judgment of the Court of Special Appeals, and HELD
(1) Rule 2-551 sets forth and governs the procedures for seeking in banc review of
a point, question, or judgment entered or decided by a circuit court.
(2) To be entitled to such review:
(i) The point, question, or judgment must be reserved by making an
objection in the manner provided by Rule 2-517 or Rule 2-520 and
during the sitting of the court;
(ii) The point, question, or judgment must be one that the party would have
the right to appeal to the Court of Special Appeals or Court of Appeals
upon the entry of final judgment or otherwise allowed by law; and
(iii) The notice of in banc review must be filed within 10 days after entry of
final judgment or, if a motion is made under Rule 2-533, 2-534, or 2-
535, within 10 days after resolution of that motion. A notice that is not
in compliance with that requirement is a nullity.
(3) A party who does not seek in banc review may appeal to the Court of Special
Appeals from an adverse decision of the in banc panel, but must do so within
the time allowed for appeals.
(4) A decision by the in banc court constitutes a final judgment of that court.
Circuit Court for Anne Arundel County
Case No. 02-K-14-001626
Argued: January 9, 2018
IN THE COURT OF APPEALS
OF MARYLAND
No. 49
September Term, 2017
STATE OF MARYLAND
v.
BASHUNN CHRISTOPHER PHILLIPS
Barbera, C.J.
Greene
Adkins
McDonald
Hotten
Getty
Wilner, Alan M. (Senior Judge, Specially
Assigned)
JJ.
Opinion by Wilner, J.
Filed: February 20, 2018
We granted certiorari in this case to review, again, the manner in which Article
IV, § 22 of the Maryland Constitution, providing for an in banc appeal from a “decision
or determination of any point or question” by a Circuit Court judge, is intended to
operate. In the end, our decision will be based on the wording of § 22 and Md. Rule 2-
551. To be faithful to the standards for interpreting Constitutional provisions, however,
we will need to review in some detail the origin and development of § 22 and some of our
prior case law even though, regrettably, that lengthens the Opinion.
BACKGROUND
On December 10, 2013, respondent Phillips allegedly murdered Shar’ron Mason.
It appears that he was not arrested until July 18, 2014, at which time an indictment was
returned charging him with first-degree murder and associated firearm violations. In
August 2015, he filed a motion in limine to exclude certain documents and testimony that
the State intended to offer at trial to establish the approximate location of Phillips’s cell
phone on the date of the crime. The motion asserted that the evidence was unreliable,
irrelevant, and unduly prejudicial. The crux of Phillips’s argument was that the
methodology employed by the State’s experts as the basis for the location evidence was a
novel scientific one that had not received general acceptance in the relevant scientific
community and therefore was inadmissible under Reed v. State, 283 Md. 374 (1978).
Following a hearing conducted over the course of four days, Judge Silkworth, on
February 12, 2016, granted the motion and entered an order excluding the documents and
testimony. He concluded that two of the State’s expert witnesses were not part of the
relevant scientific community and that the methodology they espoused had not gained
general acceptance within that community.
Six days later, on February 18, the State filed a request for in banc review of that
order. The request, itself, was bare-boned. It noted the State’s objection to the order but
listed no points or questions to be reviewed and gave no reasons why the Order was
incorrect. That was not done until the State filed its memorandum on March 18, 2016, in
which it listed seven specific questions for review.
The State’s request triggered a flurry of activity. Apparently in anticipation of the
in banc request, the State asked that trial, set for March 9, 2016, be postponed, and it was.
On February 24, Phillips moved to dismiss the in banc request; the motion was denied,
subject to reconsideration at a later time. On March 3, 2016, the county administrative
judge appointed three judges of the court to constitute the in banc court and designated
Judge Mulford to chair the panel. On March 14, Judge Mulford entered an Order that
directed the State to prepare a transcript of the proceedings before Judge Silkworth and
set times for the filing of memoranda.
The memoranda were filed, and the hearing before the in banc panel took place on
May 17, 2016. On June 3, the panel filed a memorandum and Order denying a renewed
motion to dismiss and reversing Judge Silkworth’s Order excluding the evidence at issue.
On July 6, 2016, trial of the case was postponed to February 13, 2017.
We are not concerned here with the substance of the panel’s decision – whether it
was right or wrong – but rather with its own jurisdiction and its analysis of the State’s
2
right to pursue the in banc appeal as it did. The panel acknowledged the obvious fact that
no judgment had yet been entered in the case and that, in any event, the State had no right
under Title 12 of the Courts Article to appeal to the Court of Special Appeals from the
grant of Phillips’s motion in limine even if there were a final judgment. Relying on some
language in Board v. Haberlin, 320 Md. 399 (1990) and the analysis of the Court of
Special Appeals in Berg v. Berg, 228 Md. App. 266 (2016), however, the panel found
that not to be an impediment. The case before it, the panel concluded, “is an
extraordinary instance in which the legislature failed to address the ability of the State to
take an in banc from [an] evidentiary determination amounting to both an abuse of
discretion of the trial court and an error of law” and, reading Art. IV, § 22 in light of dicta
in Berg, “shows the intention of the legislature to provide an avenue of review for
situations akin to the case at hand.” The panel’s Order denied Phillips’s motion to
dismiss, reversed the evidentiary ruling of Judge Silkworth, and, at least implicitly,
remanded the case for further proceedings, which have yet to occur.
Phillips appealed to the Court of Special Appeals, which reversed the judgment of
the in banc court. Phillips v. State, 233 Md. App. 184 (2017). As he had before the in
banc panel, Phillips argued that Art. IV, §22 permits in banc review only when a direct
appeal is allowed and that the State had no such right. The State responded that an in
banc review of a trial judge’s decision is not an “appeal” but a broader right of “review,”
and that its right to that review, founded on Art. IV, § 22, is not limited by the statutory
appeal provisions in Title 12 of the Courts Article. Apart from that, the State moved to
3
dismiss the appeal on the ground that because the panel’s order was an interlocutory one
and no judgment had yet been entered, Phillips had no right to appeal it.
The intermediate appellate court dealt first with the State’s motion to dismiss the
appeal to it, denying the motion on the ground that the decision of the in banc panel,
which resolved the only issue before it, constituted a final judgment of that court and
therefore was appealable by Phillips. Relying on this Court’s case law and some of its
own decisions, the Court of Special Appeals rejected the State’s argument that the right
to in banc review is broader than the right to appeal to the Court of Special Appeals or to
this Court and concluded instead that “a litigant may not appeal to an in banc panel when
the litigant could not note an appeal to this Court successfully.” Id. at 205. Because the
State had no right to appeal Judge Silkworth’s ruling on the motion in limine, the Court
held that the in banc panel was without jurisdiction to consider the State’s request for
review.
THE ISSUES
Two composite issues are presented by the parties: (1) whether a party, in this case
the State in a criminal case, has the right under § 22 to seek in banc review of a trial
judge’s ruling that would not be immediately appealable to the Court of Special Appeals
or this Court under Md. Code, Courts Article § 12-301 or other law; and (2) whether
Phillips had the right to appeal the in banc decision, which adjudicated an interlocutory
ruling of the trial court that could not have been immediately appealed directly to the
Court of Special Appeals. We shall add a third issue that most clearly is presented and
4
seems to have been ignored up to this point but that is determinative: whether the in banc
court was lawfully created in this case.
DISCUSSION
Introduction
Art. IV, § 22 was inserted into the Maryland Constitution by the Constitutional
Convention that met in 1867. Although the State places its emphasis on what it perceives
to be the plain language of that section, both parties attempt to divine what the delegates
to that Convention intended the section to mean. It is an exercise that this Court and the
Court of Special Appeals have engaged in as well over the years.
The standards to be applied in the construction of Constitutional language were
confirmed recently in Bd. of Elections v. Snyder, 435 Md. 30, 53-54 (2013). We said
there that our task “is to discern and then give effect to the intent of the instrument’s
drafters and the public that adopted it” but cautioned that “because the Constitution was
carefully written by its drafters, solemnly adopted by the constitutional convention, and
approved by the people of Maryland, courts lack the discretion to freely depart from the
plain language of the instrument.” Id. at 53.1 Implementing that principle, we added that
“[w]here the provision at issue is clear and unambiguous, the Court will not infer the
1
We accept the Snyder Court’s assumption regarding the care with which Constitutional
language is drafted as a general proposition but not necessarily as absolute truth. The fact
that there have been so many appellate Opinions, occasionally with dissents and
concurring Opinions, attempting to determine the meaning of the language in § 22
suggests that the language of that section was not “carefully written.”
5
meaning from sources outside the Constitution itself.” Id. If the Constitutional provision
is ambiguous, “we approach its interpretation the same way we interpret statutory
language, and we generally apply the same principles.” Id. at 54. In that regard, the
Court, quoting from Johns Hopkins v. Williams, 199 Md. 382, 386 (1952), observed:
“Courts may consider the mischief at which the provision was
aimed, the remedy, the temper and spirit of the people at the time it
was framed, the common usage well known to the people, and the
history of the growth or evolution of the particular provision under
consideration.”
In Reger v. Washington Co. Bd. of Ed., 455 Md. 68, 96 (2017), quoting from
Phillips v. State, 451 Md. 180, 196-97 (2017), we added that if a statute is clear and
unambiguous, “we need not look beyond the statute’s provisions and our analysis ends”
but that “[o]ccasionally we see fit to examine extrinsic sources of legislative intent
merely as a check of our reading of a statute’s plain language,” including “archival
legislative history.”
Archival legislative history includes legislative journals, committee reports, fiscal
notes, amendments accepted or rejected, the text and fate of similar measures presented
in earlier sessions, testimony and comments offered to the committees that considered the
bill, and debate on the floor of the two Houses (or the Convention). MVA v. Lytle, 374
Md. 37, 57 (2003); Boffen v. State, 372 Md. 724, 736-37 (2003). The views expressed by
individual members of the legislative (or Constitutional) body as part of the debate may
be considered, subject to the critical caveat that those views may not have been shared by
anyone else and, to that extent, may be irrelevant.
6
Those principles apply in full force when the provision at issue is the same, or at
least substantially the same, as when initially adopted. We look then to the composite
intent of the delegates (or legislators) that adopted it from the language they used and,
where appropriate, relevant external sources of the kind noted. When the provision at
issue has subsequently been amended, however, and the amendments bear on the proper
construction of the provision as it currently exists, it is the intent of the amenders that
may become paramount. Art. IV, § 22 has been amended twice since 1867, the principal
one being in 2006. We need to look, therefore, at the overall development of the
provision and most particularly at the 2006 amendment. When we examine the case law
dealing with § 22, we need to keep in mind what the Court was construing at the time.
The 1867 Convention and the Legislative Response
The 1867 Convention was the third in 17 years, and many of the issues involving
the Judiciary that had been debated in the preceding two – in 1850 and 1864 – were back.
The Convention that met in 1850 was dominated by the debate over slavery, a desire to
put the State’s deplorable fiscal condition in order, and a restructuring of the State
government. A major part of that restructuring was of the Judiciary. The General Court,
the county courts, and the Chancery Court that existed under the 1776 Constitution were
abolished and replaced by (1) a Court of Appeals consisting of a Chief Justice and three
Associate Justices, one from each of four judicial districts, (2) division of the State into
eight judicial circuits from each of which one judge was to be elected and designated as a
Circuit Court judge, who was required to sit at least twice a year in each county within
7
the circuit, and (3) three courts in Baltimore City – a Court of Common Pleas, a Superior
Court, and a Criminal Court, each to consist of one judge. This clearly was a system in
which it was expected that trials would be presided over by one judge.
The 1864 Convention also did some restructuring of the Judiciary. It expanded the
Court of Appeals to a Chief Justice and four Associate Justices, created a Circuit Court in
each county and, with respect to the Circuit Courts, divided the State into 13 judicial
circuits and, in 12, provided for one judge in each circuit. In Baltimore City, which was
the Thirteenth Circuit, there were to be four courts – the three provided for in the 1851
Constitution plus a Circuit Court, each court to consist of one judge. This also was a one-
judge system.
One of the issues in the 1867 Convention was whether to increase the number of
judges within the circuits so that trials could be held before three judges rather than just
one. That issue had arisen early in the 1864 Convention, when the Committee on the
Judiciary was directed to consider (1) dividing the State into 10 judicial districts, each
consisting of two counties, (2) having two Circuit Judges and one judge of the Court of
Appeals within each circuit, and (3) having two terms per year in each county in which
the two Circuit Judges and the Court of Appeals judge would sit, “so that each Court
shall be held by three judges except in cases of illness or other necessary absence.” The
Debates of the Constitutional Convention of the State of Maryland (1864) at 72. As
noted, that did not carry, but it resurfaced in 1867.
8
The 1867 Convention was peculiar in at least one important respect. Unlike the
1850 and 1864 Conventions, the 1867 Convention did not keep an official record of the
speeches and debates. Most of what we know about what was said by the delegates was
cobbled from contemporaneous newspaper accounts, some of questionable reliability. In
1923, Philip B. Perlman published what he called Debates of the Maryland Constitutional
Convention of 1867 (hereafter Perlman), which was taken mostly from the morgue files
of the Baltimore Sun – Perlman’s former employer.2 That book has become the principal,
though incomplete, source for what occurred and was said at the Convention.
2
Mr. Perlman’s first career was as a reporter, and later City Editor, for the
Baltimore Evening Sun. He later left journalism, went to law school, and became a
prominent Maryland attorney who was active in City, State, and national political affairs.
In an Introduction to his 1923 book, he contended that the Sun reporter who covered the
Convention “was acknowledged to be one of the best newspaper men in the country”.
That view is not shared by John J. Connolly, Esq., a Maryland attorney who wrote
a well-researched law review article specifically dealing with Art. IV, § 22. See
Maryland’s Right of In Banc Review, 51 Md. L. Rev. 434 (1992). Mr. Connolly notes:
“The members [of the 1867 Convention] decided that $2.50 per day was too much
for the State of Maryland to spend on a professional reporter. Additionally, some
of the members believed that the newspaper reporting of the early days of the
convention had been so superior that an official reporter would add little.
Consequently, the principal contemporaneous authority cited today, [Philip]
Perlman’s The Constitution of 1867, is nothing more than a collection of
newspaper reports of the convention printed by The [Baltimore] Sun. This is
unfortunate because newspapers at the time could be quite partisan in their views
of the convention, and because, as The Sun itself now seems to admit, its man at
the convention was not the most thorough reporter who attended. The
result is that searching for original intent in the Maryland Constitution is
uncertain and often disappointing, particularly on a provision as unclear as
section 22.” Id. at 443-44.
9
Mr. Connolly views further reform of the Maryland judicial system as one of the
principal issues at the Convention, a major aspect of which was increasing the number of
Circuit Court judges, replacing the “one judge” system, and allowing trials before a panel
of three judges. 51 Md. L. Rev. at 444-45. The Convention’s Committee on the
Judiciary seemed to waffle on that issue. It proposed returning to eight judicial circuits,
each (except the Eighth, which was Baltimore City) to consist of a Chief Judge and two
Associate Judges. They were to hold at least two terms of the Circuit Court in each
county but one judge would constitute a quorum for the transaction of any business. See
Perlman at 266. That seemed to allow for trials before either one judge or up to three.
The Committee proposed a very different system for Baltimore City, where there
was to be a Supreme Court of Baltimore City, to consist of a Chief Justice and five
Associate Justices. Those judges would be assigned to sit in the other courts – the
Superior Court, the Court of Common Pleas, the Baltimore City Court, the Circuit Court,
the Criminal Court, and the Orphans’ Court -- which would sit in “general terms” of not
less than three judges and “special terms” of one or more judges. The Supreme Court
would have the power to make Rules for all of the City courts and for the “granting,
hearing, and determination of motions for a new trial . . . or upon motions in arrest of
judgment, or upon any matters of law by said judge or judges determined.” Id. at 268.
10
That was not what ultimately was adopted, but it served as a backdrop for what
became § 22.3 According to Connolly, referencing a Baltimore Sun article, Delegate
Archer filed a Minority Report proposing twelve judicial circuits, with one judge for each
circuit and complained about the expense of having three judges. Two days later, again
according to Connolly, Delegate Syester, favoring the three-judge system, proposed that
the three judges provided for in the Committee on the Judiciary Report “also hold a court
of revision in each district, and to this the poor man could take an appeal when he could
not afford to go up to the Court of Appeals of the State.” 51 Md. L. Rev. at 451.
According to Connolly’s source, access by poor people was not Syester’s sole concern;
he also expressed concern (1) that “appeals” were not then allowed in criminal cases and
that “a criminal defendant’s life should not rest solely on the decision of one judge,” and
(2) that a motion for new trial was not an effective means of correcting a judge’s error,
for it required the judge to admit that he was in error. Id. at 452.
Though obviously concerned about one-judge trials, Syester, according to
Connolly, understood the additional fiscal burden of requiring three-judge trials and thus
proposed instead a three-judge court of revision that would be available “especially when
appellate review was not available or was difficult to obtain.” Id. at 453. In a speech to
the Convention, Syester said that “[i]t is intended that all ill-considered rulings of one
3
A number of changes were made to that draft, particularly with respect to Baltimore
City, but the adopted version still regarded one judge as a quorum for the transaction of
any business. In Baltimore City, the Supreme Court was changed to the Supreme Bench
but § 32 permitted the judges assigned to the several courts to “sit either, separately, or
together, in the trial of cases.”
11
judge shall be reserved at the instance of the party, for consideration of the three judges.”
Id., quoting from a report of Syester’s speech in an August 2, 1867 article in The
Hagerstown Mail.
Connolly tells us that debate over a one-judge vs. a three-judge system continued
all that day. The following Monday, Delegate Richard Alvey, a colleague of Syester
from Washington County and later a judge (and ultimately Chief Judge) of this Court,
introduced what eventually became § 22. The initial proposal was that a litigant could
choose in banc review or an appeal to the Court of Appeals “where by law an appeal will
lie,” suggesting, in Connolly’s view that in banc review might lie where an appeal would
not. 51 Md. L. Rev. at 453, 456. Alvey, himself, later amended that version, which was
amended as well at the instance of others. When §22, as adopted, is read in conjunction
with what became Art. IV, § 21, what emerged seemed to be a recognition that the norm
would be one-judge trials, although two-judge or three-judge trials were possible, and
that in banc review by three judges of the circuit would be allowed only where the trial
was conducted by fewer than three judges.
Section 22, as ultimately adopted, provided the following, which we shall break up
for ease of reading:
“Where any Term is held, or trial conducted by less than the whole number
of Circuit Judges, upon the decision, or determination of any point, or
question, by the Court, it shall be competent to the party, against whom the
ruling or decision is made, upon motion, to have the point, or question
reserved for consideration of the three Judges of the Circuit, who shall
constitute a Court in banc for such purpose.”
12
“[T]he motion for such reservation shall be entered of record, during the
sitting, at which such decision may be made.”
“[T]he several Circuit Courts shall regulate, by rules, the mode and manner
of presenting such points, or questions to the Court in banc.”
“[T]he decision of the said Court in banc shall be the effective decision in
the premises, and conclusive, as against the party, at whose motion said
points, or questions were reserved; but such decision in banc shall not
preclude the right of Appeal, or writ of error to the adverse party, in those
cases, civil or criminal, in which appeal, or writ of error to the Court of
Appeals may be allowed by Law.”
“The right of having questions reserved shall not, however, apply to trials
of Appeals from judgments of Justices of the Peace, nor to criminal cases
below the grade of felony, except when punishment is confinement in the
Penitentiary.”
“And this Section shall be subject to such provisions as may hereafter be
made by Law.”
With respect to the third paragraph above, permitting local Circuit Court Rules
governing the mode and manner of presenting points or questions to the in banc court, we
note that the Court of Appeals had not yet been authorized to adopt Rules of procedure,
other than Rules governing appeals to that Court and Rules governing equity procedure.
See Art. IV, §18 (1867 Constitution). General rule-making authority for the trial courts
was not Constitutionally conferred on the Court until 1944. We have not attempted to
trace what, if any, local Rules were adopted by the various Circuit Courts over the 139
years they had the authority to promulgate such Rules, although it appears that some of
the circuits apparently did adopt local Rules.4
4
In April 1953, the Court’s Standing Committee on Rules of Practice and Procedure
(Rules Committee) directed the Reporter to the Committee to make a study of how and to
what extent § 22 was being used. In his Report, rendered the following September, the
13
With respect to the last paragraph, there was a prompt legislative response. In its
next (1868) session, the General Assembly enacted 1868 Md. Laws, Ch. 441 that set forth
a more detailed procedure for implementing § 22 in light of the Constitutional
reorganization of the Circuit Courts. It is mostly of historical interest now, although, as
we shall note later, its requirement that points or questions reserved for in banc review be
taken “by means of exceptions” did play a role in an important ruling by this Court 120
years later, Montgomery County v. McNeece, 311 Md. 194 (1987). The law ultimately
became codified as sections of Art. 75 of the Code, which were repealed after this Court
adopted Rule 510 (now Rule 2-551), effective January 1, 1957.
Keeping in mind that, at the time, each circuit (other than Baltimore City) had
three judges, the 1868 law gave a party the option of (1) having the reserved point or
question decided by the remaining two judges qualified to sit, (2) having the action
removed to the court of another circuit, or (3) taking an appeal to the Court of Appeals.5
Reporter said that he had addressed a letter to the Circuit Court clerks regarding whether
their dockets disclosed any utilization of the in banc provision. Replies were received
from the first seven circuits and, from those replies, he said that “it appears that no
utilization of this procedure has taken place in the last ten to twenty years,” although
several replies indicated that “local rules made provision for the mode and manner of
presenting questions to the Court en banc.” Judge Clark, from the Fifth Circuit,
concluded that “[t]his provision has been so seldom used in this Circuit that it is
practically a dead letter.” Rules Committee Archives regarding Rule 2-551. When the
issue was revisited in 1964, the Committee was advised that there had been an increase in
the use of the procedure in some counties, particularly Prince George’s County, but that
the procedure provided in the then-current Rule (Rule 510) “was not adequate or
workable.” Rules Committee Minutes of April 29, 1965. In 1973, when the issue was
again revisited, Judge J. Dudley Digges reported that 50 to 75 cases a year were
submitted to in banc review in the Seventh Circuit.
14
Points or questions reserved for in banc review were to be taken by means of exceptions,
to be reduced to writing and signed and sealed by the judge or judges before whom the
case was to be tried. See 1951 Md. Code, Article 75, §§ 131-133.
The Case Law
The most relevant case law is found in the more recent cases, but some of the early
ones are important in fleshing out the meaning and contours of § 22 and providing a base
for the later cases and Rules, so we shall start with some of them.
The first case to reach this Court touching on in banc review was Roth v. House of
Refuge, 31 Md. 329 (1869). The case arose not from § 22 but from the analogous
provisions relating to the Supreme Bench of Baltimore which, as noted above, had
jurisdiction to review, in banc, motions for new trial and other matters of law determined
in the other Baltimore City courts. The case involved two minors who had been
committed by a justice of the peace to the House of Refuge. The fathers of the boys filed
petitions for habeas corpus before a judge assigned to the Baltimore City Court. The
judge granted the writs and ordered the boys released, whereupon the House of Refuge,
through a motion for new trial, sought review of those decisions by the Supreme Bench.
That court reversed the judge’s ruling, and the petitioners appealed. The issue was
whether the Supreme Bench had jurisdiction in the matter.
5
Later, as more judges were added in some of the circuits, the question arose of whether
an in banc court would or could consist of all of the judges in the circuit, which could be
more than three.
15
Citing the Constitutional provisions that were nearly identical to those in § 22, the
Court, in an Opinion by Judge (and former Convention delegate) Alvey, concluded that
the relationship between the Supreme Bench and the other City courts “is that of a court
in banc, where parties can have questions of law deliberately considered by at least three
judges, without the delay and expense of an appeal to the Court of Appeals, and where
they can have the benefit of such review in many important cases where an appeal would
not lie.” Id. at 333. The Court held that, notwithstanding that no appeal would lie to it
from the denial of habeas corpus, the Supreme Bench did have jurisdiction and therefore
dismissed the appeal from its ruling.6
The importance of the case, in its actual holding as well as in its language, lies in
the Court’s recognition, albeit in the context of the Constitutional provisions dealing with
the Supreme Bench, that in banc review was permissible even where no appeal would lie
to the Court of Appeals. Phillips challenges that conclusion.
The first case to reach this Court that directly involved § 22 was Shueey v. Stoner,
47 Md. 167 (1877). The import of that case was simply to make clear that the provision
in § 22 that the decision of the in banc court “shall be the effective decision in the
6
This Court has held on a number of occasions that an appeal from the grant or denial of
a writ of habeas corpus is permissible only if authorized by statute, that the right is not
included in Courts Art. §12-301, and that there appear to be only four statutes that permit
such an appeal – Crim. Procedure Article, §9-110 (extradition cases); Courts Article, § 3-
707 (bail cases); Courts Article, § 3-707 (writ based on the unconstitutionality of the
statute under which the petitioner was convicted); and Crim. Procedure Article, §7-107,
(where the writ is sought for a purpose other than to challenge the legality of a conviction
or sentence). See Gluckstern v. Sutton, 319 Md. 634, 652 (1990); Simms v. Shearin, 221
Md. App. 460, 469 (2015).
16
premises and conclusive as against the party at whose motion said points or questions
were reserved” means what it says. (Emphasis in original). Id. at 170. This Court
thwarted an attempted end run around that provision through a collateral attack on the
ruling of an in banc court, even though the Court expressed its disagreement with the
decision of the in banc court.
Next in line was Costigin v. Bond, 65 Md. 122 (1886), an ejectment action. On
March 31, a jury found for the plaintiff. On April 2, the defendant filed a motion for new
trial, which was overruled by the judge. The defendant then sought review of that ruling,
as well as of the judge’s denial of his motion in arrest of judgment, before an in banc
court. The in banc court overruled the plaintiff’s motion to dismiss the appeal and
reversed, whereupon the plaintiff filed an appeal to this Court.
This Court reversed the ruling of the in banc court, not on the merits but on the
untimeliness of the plaintiff’s reservation of the points for review by the in banc court.
Section 22, the Court said, was “in substitution of an appeal to the Court of Appeals” and
made “a considerable alteration in the law on this subject,” but “[t]he change is not to be
extended by construction beyond the terms of the Constitution.” Id. at 124. Section 22
required (and still requires) that the reservation of the point or question be entered during
“the sitting” at which the decision was made, which the Court interpreted to mean before
the court adjourned for the day. As that was not done, the in banc court had no
jurisdiction. The precise holding was limited to the required time for reserving points or
17
questions for in banc review, but the broader pronouncement was that § 22 would be
limited to its terms.
Medical Examiners v. Steward, 207 Md. 108 (1955) confirmed the principle
announced in Shueey. The Board of Medical Examiners revoked the medical license of
Steward. On judicial review, the Circuit Court reversed that decision on the ground that
the Board had been improperly constituted and remanded the matter to the Board. The
Board appealed to this Court, which dismissed the appeal on the ground that no appeal
was permissible by either party. See Bd. of Med. Examiners v. Steward, 203 Md. 574(1954).7
The Board reconsidered the matter but again revoked the license. Again, the
Circuit Court reversed. This time, the Board timely moved to reserve points for
consideration by an in banc court, which dismissed the appeal. This Court then dismissed
the Board’s appeal to it, holding that the in banc court had jurisdiction to determine its
own jurisdiction and that, if it had that right to decide what it did, “no question can be
made in this court on the ground of want of jurisdiction, and whether it rightly decided
what it did decide can only be reviewed by this court when the right of review is given to
7
The basis of this Court’s decision was the “well settled rule that the Court of Appeals
cannot entertain an appeal from any order or judgment of the Circuit Court sitting as an
appellate tribunal under special statutory authority where no right of appeal is expressly
given, except in cases where the Court exceeded its jurisdiction.” Id. at 580.
18
it.” Id. at 111. Citing Shueey and Costigin, the Court held that the right had not been
given to it.8
Liquor Board v. Handelman, 212 Md. 152 (1957) added another element in the
construction of §22. The principal holding was that three judges of a Circuit Court could
sit together to consider further proceedings in a judicial review action after the judge who
had made a decision timely reopened the case, without constituting an in banc court,
especially since in banc review was not possible under the circumstances. One of the
reasons that in banc review was not permissible was because “as a result of [the judge]
reopening [the case] his order . . . did not finally decide any question of law or anything
else” and that “review by a court in banc is a form of appeal and there can be no appeal
from a non-existent judgment or order.” Id. at 160-61. The clear import of that is that,
although points or questions must be reserved for in banc review during the sitting in
which they were made, they must be final before that review can occur.
Buck v. Folkers, 269 Md. 185 (1973) filled in a gap involving the right of the
adverse party in an in banc appeal to appeal to this Court. In a declaratory judgment
action, the Circuit Court found in favor of the defendant. The plaintiff timely sought in
8
The actual basis of this Court’s decision is not altogether clear. It could have been
based on the same principle applied in the earlier case – that because the Circuit Court
was acting as a special appellate body, no further appeal was allowed – or it could have
been based on §22 directly, namely that the in banc court’s decision was the “effective
decision in the premises,” and the party who sought that review – the Board – had no
further right of appeal. Both principles were mentioned in the Opinion. Although
dismissing the appeal, the Court did reach the substantive issue of whether the in banc
court had jurisdiction in the matter, suggesting that its dismissal was based on the statute,
as it had been earlier, rather than on § 22.
19
banc review, and the in banc panel remanded the case for a new trial. The retrial resulted
in a judgment for the plaintiff, and the defendant then appealed to this Court, complaining
about the remand. We concluded that, although the defendant had the right to appeal
from the decision of the in banc court, he needed to do so within 30 days after that court’s
decision. His appeal was untimely and was dismissed.
We come now to three cases decided together on the same day in July 1979 – the
companion cases of Washabaugh v. Washabaugh and Daniel v. Steele’s Carpet Service,
Inc., 285 Md. 393 (1979), and Estep v. Estep, 285 Md. 416 (1979). As a preface, we note
that, in 1978, in order to take account of the creation of the District Court and the
abolition of justices of the peace seven years earlier, § 22 was amended to substitute a
reference to the District Court for the reference to justices of the peace. That amendment,
which was part of a comprehensive clean-up of obsolete provisions in the Constitution,
has no bearing on the viability of the earlier decisions or on the issues before us in this
appeal.
The sole issue in Washabaugh and Daniel was whether the fact that § 22 did not
then operate in Baltimore City rendered the appeal procedure under it unconstitutional
under the equal protection clause of the Fourteenth Amendment. Nearly the entire
Opinion focused on that issue, the Court ultimately holding that the disparity did not deny
equal protection. That issue became moot a year later, when, by Constitutional
Amendment, the Supreme Bench and the six satellite courts in the City were consolidated
20
into one Circuit Court for Baltimore City, putting the City on a par with the counties.
Section 22 now does apply in Baltimore City.
All that is left of the Opinion that is relevant now is Judge Digges’s recounting of
some of the earlier case law and his perception that “[a]lthough the reason for section
22’s inclusion in the constitution is not altogether clear, it appears to have been, as its
commonly recognized nickname of ‘the poor person’s appeal’ suggests, a response to a
fear of the framers of the Constitution of that year that the distance to Annapolis and the
concomitant delay and expense incident to prosecuting an appeal in the Court of Appeals
would discourage or preclude many litigants from seeking justice by means of appellate
review.” Id. at 396. As we have indicated above, that thought was expressed at the 1867
Convention and probably was a factor in the addition of § 22, but likely was not the only
one. The Court later recognized that in Bienkowski v. Brooks, 386 Md. 516, 533 (2005).
Estep has greater significance. It arose from a petition by Ms. Estep in the Circuit
Court for Prince George’s County to modify a child custody order that had granted
custody of the parties’ four children to Mr. Estep. Three of the children lived in Virginia
with their paternal grandparents, which the father claimed to be his home as well,
although on workdays he stayed in Maryland, where he worked. By consent, but without
any change in the custody order, the oldest child, who was 17, was living with his mother
in Maryland.
The father moved to dismiss the action on the ground that the Maryland court had
no jurisdiction under the Uniform Child Custody Jurisdiction Act and that Maryland also
21
was an inconvenient forum. He also filed a cross-petition seeking child support from the
mother. The court dismissed the mother’s petition with respect to the three younger
children, whereupon she immediately sought an in banc review of that ruling.
Notwithstanding that the father’s cross-petition was still pending, as was the mother’s
petition regarding the oldest child, a three-judge court was convened, heard argument,
and reversed the judge’s dismissal of the petition. The father noted an appeal to the
Court of Special Appeals, which dismissed the appeal on the ground that it was not
allowed by law. On certiorari, this Court disagreed and reversed.
The Court, mostly in a footnote, first discussed the right of the adverse party in the
in banc proceeding to take an appeal from the in banc decision. The right of appeal
provided by § 22, the Court noted, was subject to such provisions as “may hereafter be
made by Law.” Prior to the creation of the Court of Special Appeals, the Court
continued, the Court of Appeals was the sole tribunal before which any right of appeal
from an in banc court could be exercised, but, by enacting §§ 12-307 and 12-308 of the
Courts Article, the Legislature made clear its intent that, subject to any other provision
permitting an appeal directly to the Court of Appeals, appeals from an in banc court must
be taken to the Court of Special Appeals, with access to this Court only through a writ of
certiorari. 285 Md. at 420, n.4.
That holding was later overruled in Bienkowski, 386 Md. 516 (2005), which itself,
on that issue, was overturned by the 2006 amendment to § 22. Having concluded that
both the Court of Special Appeals and, through the grant of certiorari, this Court had
22
jurisdiction to consider Mr. Estep’s appeal, the Court looked to the scope of an allowable
appeal. The right to appeal, it confirmed, was statutory, and the applicable statute was
§12-301 of the Courts Article, which, subject to § 12-303, permits an appeal only from a
final judgment; that requires that all claims against all parties be resolved. Critically, in
footnote 8, at 423, the Court concluded that there was no conflict between that
requirement and the requirement in § 22 that points and questions be reserved during the
sitting of the trial court. In that regard, the Court concluded:
“A reservation of points, being tantamount to registering an objection
coupled with a declaration that the objector, at the appropriate time,
intends to seek review of the trial court’s ruling, simply saves the point or
points in question for determination by the court in banc when a final,
appealable judgment has been entered and does not act to bring the case to
a halt until those issues are decided by a court in banc, unless, of course,
an earlier appeal is allowed on some other recognized basis . . .”
Id. at 423.
The problem in Estep was that there remained undecided claims and therefore
there was no appealable judgment. It was for that reason that the in banc court’s ruling
was “premature and must be reversed.” Id. at 423.
That view was confirmed in Dean v. State, 302 Md. 493 (1985), a criminal case.
Following Dean’s conviction of rape, the trial judge granted his motion for new trial.
The State immediately invoked § 22 and filed a reservation of points for in banc review,
claiming that the judge abused his discretion in granting the motion. The in banc panel
concluded that it had jurisdiction, reversed the judge’s ruling, and remanded the case for
sentencing. Dean appealed to the Court of Special Appeals, and this Court granted
23
certiorari prior to argument in the intermediate appellate court. The Court agreed with
the Attorney General that there was no different standard of appealability to a court in
banc and an appeal to the Court of Special Appeals and that both ordinarily require that
there be a final judgment in the matter. In a criminal case, the Court noted, “no final
judgment exists until after conviction and sentence has been determined or, in other
words, when only execution of the judgment remains.” Id. at 498, quoting from Sigma
Repro. Health Cen. v. State, 297 Md. 660, 665 (1983). Accordingly, the Court held that
the in banc court had no jurisdiction and its judgment was reversed.
Montgomery County v. McNeece, 311 Md. 194 (1987) resolved an issue that, as
we shall explain, forms the ultimate basis for our judgment in this case. The case was a
judicial review action in which the trial judge reversed the administrative decision not to
increase the salary of a firefighter upon his promotion. Within 30 days after that
judgment was entered, the county filed a notice for in banc review. The in banc court
dismissed the appeal on the ground that the county had failed to reserve its points or
questions in accordance with § 22 and the Court of Special Appeals dismissed the
County’s appeal to it. This Court, on certiorari, affirmed the Court of Special Appeals
judgment. Confirming what it had held in Medical Examiners v. Steward, supra, 207
Md. 108, the Court repeated that “a court in banc has the right to decide that it is without
jurisdiction in a particular case, and that a decision to that effect is final and
unappealable.” McNeece, supra. 311 Md. at 199.
24
The Court then noted that “[a]lthough we ordinarily do not express our views on
any question raised by a dismissed appeal, we occasionally do so to resolve a matter of
substantial importance [citations omitted]. The in banc court declared a portion of Md.
Rule 2-551 unconstitutional, and we consider it in the public interest to address the
correctness of that ruling.” Id. at 200-01 (Emphasis added). The point at issue was the
practice in place in 1867, and for years thereafter, that, to preserve a point for in banc
review, an exception must be taken and noted at the time the ruling was made. That
requirement was in the 1868 statute and was carried over in Md. Rule 510 until 1984,
when, with the adoption of Rule 2-551, it was repealed.
The Court recounted that, with the advent of court stenographers and verbatim
accounts of trial proceedings, the need for contemporaneous written exceptions ceased to
exist, and by the adoption in 1945 of Rule 17, the “unnecessary and outmoded” formality
of noting exceptions was abolished with respect to ordinary appeals. Id. at 204, quoting
from Elmer v. State, 239 Md. 1, 6-9 (1965). The modernization of appellate procedures
accomplished by Rule 17 had no effect on the procedure to be followed in appeals to in
banc courts, however, and “[b]ecause of the requirement that an exception be noted of
record on the day the point or question was decided, in banc appeals were essentially
unavailable in those cases in which a judge filed an order with the clerk and notified the
parties by mail.” McNeece, 311 Md. at 204-05. Aware of the problem, the Court’s Rules
Committee proposed, and the Court approved, the deletion of the requirement of
exceptions as part of new Rule 2-551. Although McNeece did not contest the need for
25
that change, he argued that the Court had no authority to make it and that, because the
procedure for reserving points by exception was established by the Constitution, it could
be changed only by Constitutional amendment.
Citing Art. IV, § 18 of the Constitution, the Court flatly rejected that argument and
concluded that:
“The changes made by the adoption of Rule 2-551 are within the
constitutional authority granted by §§ 22 and 18 of Article IV. The
substantive right of appeal to an in banc court is in no way changed. Only
the practice and procedure relating to the preservation of points for
appellate review, and the time for filing an election to have the review
before an in banc court, have been changed, and these are matters within
the rule-making authority of this Court. Reasonable regulation of the
exercise of a constitutional right is permissible, provided the basic right is
not impaired [citations omitted]. The procedures established by Rule 2-
551 do not impair the right to an in banc appeal and the rule is
constitutional.”
Id. at 206-07.
In Board v. Haberlin, 320 Md. 399, 407 (1990), the Court confirmed its holdings
in Dean, Estep, and Handelman that “when no appeal from a circuit court could be taken
to the Court of Special Appeals (or, prior to the 1970’s the Court of Appeals), then no
appeal can be taken to a court in banc” and that, except in special cases where a statute
provides otherwise, the applicable statute for determining when an appeal is permissible
is § 12-301 of the Courts Article. In Haberlin, which involved a judicial review action
from the decision of a liquor licensing board, there was a statute that precluded an appeal
to the Court of Special Appeals unless there was a conflict in circuit court decisions on
the point, and, accordingly, there was no appeal to the in banc court.
26
In Dabrowski v. Dondalski, 320 Md. 392 (1990), decided the same day as
Haberlin, the Court, for the first time, noted the provision of Rule 2-551(b) requiring that
the notice for in banc review must be filed within ten days after entry of judgment or, if a
timely motion is filed pursuant to Rules 2-532, 2-533, or 2-534, within ten days after an
order disposing of the motion, and held that that provision meant what it said and was
controlling. The plaintiff’s request for in banc review was not filed within that time, and
the Court held that it was error for the in banc court to have exercised jurisdiction over
the appeal.
In Bienkowski v. Brooks, supra, 386 Md. 516, 523, the Court concluded that, as §
22 expressly permitted an appeal from an in banc court only to the Court of Appeals, no
appeal could lie to the Court of Special Appeals, and that the Court of Appeals was
wrong in tacitly or directly concluding otherwise in Estep, Dean, and McNeece. The
dispositive holding was that “the Court of Special Appeals is not authorized to exercise
jurisdiction over the merits of such appeals.” Id. at 523-24. Without citing any specific
statutory authority for the proposition, the Court concluded that “[u]nder the only
reasonable interpretation of Article IV, § 22, in light of the present statutory provisions
governing the Court of Appeals’ jurisdiction, an appellee in the court in banc, after an
appealable judgment by the court in banc, is entitled to file in the Court of Appeals a
petition for a writ of certiorari pursuant to the current statutory provisions and rules
governing certiorari petitions and certiorari practice in the Court of Appeals.” Id. 1t 549.
Legislative and Judicial Response
27
As we have observed, that determination in Bienkowski was swiftly overturned by
means of an amendment to § 22 proposed by the Legislature in its next session (2006
Maryland Laws, Ch. 421) and approved by the voters in November of that year.
Although the principal purpose of the amendment was to provide a direct appeal from an
in banc court to the Court of Special Appeals, it did two other things as well. First, and
most important with respect to the case before us, it repealed the authority of the circuit
courts to determine by local Rules the procedure for appeals to an in banc court and
vested that authority expressly and exclusively in this Court. By virtue of that change, §
22 now provides that “the procedure for appeals to the circuit court in banc shall be
provided by the Maryland Rules.” Second, at the urging of Melvin J. Sykes, Esq.,
testifying as a member of the Rules Committee, a number of obsolete provisions in § 22
were removed, including the prospect that an in banc court could consist of more than
three judges.
In moving the authority to determine the procedure for exercising the right of
appeal to an in banc court from the circuit courts to this Court, the Legislature (and the
electorate) were merely recognizing what already existed as a practical matter. As noted,
under the last clause in § 22 providing that the section “shall be subject to such provisions
as may hereafter be made by Law,” the General Assembly had enacted procedural
requirements by statute, the latest version of which was codified in Article 75, §§ 131-
133 of the 1951 Code. Also as noted, by Constitutional Amendment adopted in 1944
(amending Art. IV. § 18) and by an accompanying statute, now codified in Code, Courts
28
Article, § 1-201, this Court was given the authority to “adopt rules and regulations
concerning the practice and procedure in and the administration of the appellate courts
and in the other courts of this State, which shall have the force of law . . .” The statute,
§1-201(a), specifies that that power “shall be liberally construed.” Because our Rules
“have the force of law,” they also fall within the purview of the last clause in § 22 that the
section “shall be subject to such provisions as may hereafter be made by Law.”
In the early 1950’s, the Court’s Rules Committee began work on the first
comprehensive set of Rules of practice and procedure for the trial courts. One of the
Rules that was drafted and debated was Rule 510, dealing with in banc appeals. There
was much discussion as to whether such a Rule was necessary, but, in the end, the
Committee decided to include it “because it is in pursuance of a constitutional provision .
. . but is rarely used today.” See Committee Note to former Rule 510. The Rule was
presented to the Court in the Committee’s Twelfth Report, approved by the Court in July
1956, and took effect January 1, 1957. The statutory provisions in Art. 75 were then
repealed, so that the only procedures governing in banc appeals were those in the Rule,
which, at the time, was closely patterned on the former statute.
Neither the statute nor the initial Rule specified any time for when such review would
occur; nor was it clear whether the in banc review panel was to consist of all of the judges
in the circuit or only three. That problem did not exist in 1867, when there were only
three judges in a circuit.
29
The Rules Committee addressed those and other issues arising from Rule 510 on
several occasions, eventually recommending that the procedures governing appeals to the
Court of Special Appeals apply as well to seeking review by an in banc court. That
approach was proposed to the Court as new Rule 2-551 in the Committee’s 82nd Report,
which generally revised and reorganized all of the Rules now found in Titles 1 through 4
of the Maryland Rules.
The Court rejected that proposal as drafted by the Committee but approved its
essence. Rule 2-551(a), as adopted, provided that, when in banc review is permitted by §
22, a party may have a judgment or determination of any point or question reviewed by a
court in banc by filing a notice for in banc review within the time prescribed by then-Rule
1012 for filing an appeal; i.e., within 30 days after entry of the judgment. The
requirement of written exceptions was eliminated; instead, the Rule provided that issues
were reserved for in banc review by making an objection in the manner provided in Rules
2-517 and 2-520. Upon the filing of the notice, the circuit administrative judge was to
designate three judges, other than the judge who tried the action, to sit in banc. Section
(e) permitted the court to shorten or extend time limits imposed by the Rule except the
time for filing a notice for in banc review. That Rule took effect July 1, 1984.
A year later, the Rule was amended to require that the notice for in banc review be
filed within ten days after the entry of judgment or, if a motion under Rule 2-533, 2-534,
or 2-535 was filed, within ten days after disposition of that motion. As in the previous
Rule, that time may not be shortened or extended. See § (f). The Rule has been amended
30
twice more, in 2002 and 2017, but those amendments do not affect the issues in this case,
except to the extent that, in adopting those amendments, the Court also re-adopted the
non-amended language that already was there.
Arguments
As we indicated above, the first composite issue before us is whether the State had
the right to seek in banc review of Judge Silkworth’s ruling on the motion in limine,
which clearly is an interlocutory ruling that could not have been appealed by the State
directly to the Court of Special Appeals, first, because it did not constitute a final
judgment within the meaning of Code, Courts Article, § 12-301, and second, because it
was not the kind of order from which an appeal by the State is permissible under Courts
Article, § 12-302(c). Phillips argues that the State has no right of in banc review for both
of those reasons, citing the plain language of those two sections of the Code and insisting
that review by an in banc court under § 22 constitutes an appeal to an appellate tribunal.
Recognizing that there are decisions of this Court supporting that view, among
them Estep, Dean, Handleman, and Haberlin, the State contends that those cases were
wrongly decided by failing to recognize that review by an in banc court is not an “appeal”
and therefore is not subject to the “final judgment” rule applicable to appeals to the Court
of Special Appeals and this Court or to the limitation in Courts Article, § 12-302(c)
regarding what kinds of rulings the State can appeal from in a criminal case. Faced with
the fact that § 22 itself uses the term “Appeal,” the State argues that “Appeal,” as it
appears in § 22, has a capital “A” and therefore is not the same as a true appeal.
31
The State relies on a comment made by Delegate Syester at the 1867 Convention
as indicative of an intent, at least at that time, to permit in banc review in situations where
no appeal was allowed. The comment of one Delegate out of the 117 who were members
of the Convention, however, is of little value, especially as Syester was speaking of
appeals by the defendant in a criminal case, not the State.9
The State’s argument regarding Phillips’ appeal to the Court of Special Appeals is
somewhat the converse of its position regarding its right to in banc review. Although
disclaiming the application of the “final judgment” rule with respect to its right to in banc
review, the State seeks to apply it to preclude Phillips’ right to appeal to the Court of
Special Appeals. The State’s point is that the in banc court’s ruling on the motion in
limine was an interlocutory one that is not appealable. That argument was rejected in
Dabrowski v. Dondalski, supra, 320 Md. at 395 and Estep, 285 Md. at 421, n.5, holding
that the decisions of an in banc court, which is an appellate court, “are reviewable as final
appellate judgments.”
Conclusions
The text of § 22, as applicable in this case, establishes that:
9
As we noted above, Syester pointed out that “appeals” were not then allowed in criminal
cases and that “a criminal defendant’s life should not rest solely on the decision of one
judge.” Apart from the fact that the source for that comment was a newspaper article, the
fact is that, at the time, there was no right of “appeal” in criminal cases, although there
was access to the Court of Appeals through a Writ of Error, which was mentioned in the
1867 version of § 22 but deleted in the 2006 rewriting of that section.
32
(1) to be entitled to in banc review of any point or question decided by a trial
judge, that point or question must be reserved and the motion for such reservation must
be entered of record “during the sitting at which the decision may be made,” which,
under the so-far-unreversed holding in Costigin v. Bond, supra, means before the end of
the day;
(2) the procedure for appeals to the Circuit Court in banc “shall be as provided by
the Maryland Rules;” and
(3) the decision of the in banc court shall be the effective decision as against the
party at whose motion the points or question was reserved but shall not preclude “the
right of Appeal” by an adverse party who did not seek in banc review “in those cases,
civil or criminal, in which appeal to the Court of Special Appeals may be allowed by
Law.” (Emphasis added).
Rule 2-551, as applicable in this case, establishes seven other things:
(1) When in banc review is permitted, a party may have a judgment or
determination of any point or question reviewed in banc by filing a notice for in banc
review;
(2) Issues are reserved for in banc review by making an objection in the manner
set forth in Rules 2-517 (an objection to evidence shall be made at the time the evidence
is offered or as soon thereafter as the grounds for objection become apparent) and 2-520
(a party may not claim error in the giving or failure to give a jury instruction unless the
33
party objects on the record promptly after the court instructs the jury, stating distinctly
the matter to which the party objects and the grounds of the objection);
(3) The notice for in banc review must be filed within ten days after entry of
judgment or, if a motion under Rule 2-533, 2-534, or 2-535 is made, within ten days after
disposition of that motion (emphasis added);
(4) Upon motion, the court may shorten or extend the time requirements of the
Rule except the time for filing a notice for in banc review (emphasis added);
(5) Upon the filing of the notice, the Circuit Administrative Judge shall designate
three judges of the circuit, other than the judge who tried the action to sit in banc
(emphasis added);
(6) The in banc panel shall dismiss an in banc review if, among other things, “the
notice for in banc review was prematurely filed or not timely filed” (emphasis added);
and
(7) The decision of the panel does not preclude an appeal to the Court of Special
Appeals by an opposing party “who is otherwise entitled to appeal” (emphasis added).
These provisions of the Rule were largely ignored in this case. Judge Silkworth’s
ruling was made and docketed on February 12, 2016. The State filed a request for in
banc review on February 18, 2016, but did not identify any points or questions for review
or state reasons why Judge Silkworth was wrong in his ruling until March 17, 2016, when
it filed its memorandum. Even if we were to give a more liberal interpretation to the
34
meaning of “sitting” than was given in Costigin because the ruling was not made in open
court where a same-day objection is more feasible, and look instead to whether the State
properly objected to the ruling as required by Rules 2-517 or 2-520, a month would not
qualify as a timely objection and thus not a timely reservation. That is one reason for
concluding that the in banc panel had no jurisdiction in the matter. Costigin, v. Bond;
Montgomery County v. McNeece, both supra. There are two others.
Rule 2-551 makes unmistakably clear that an in banc court is not to be designated
unless the notice for in banc review was filed within ten days after judgment in the case
was entered, and that hasn’t happened yet. That requirement resolves the issue of
whether in banc review is available to consider an interlocutory ruling. Subject to any
law that, in a particular circumstance, would provide otherwise, in any case in which a
party has a right to appeal from a final judgment to the Court of Special Appeals or the
Court of Appeals, the party has the right to request in banc review of an interlocutory
ruling properly reserved, but not until final judgment is entered. Dabrowski v. Dondalski,
supra.That, perhaps more than anything else, establishes the true comparability and
compatibility of in banc review with an appeal to the Court of Special Appeals and this
Court. The appeal in both situations is from the judgment, which brings before the
appellate court all issues that were properly preserved for appellate review, including
those determined by interlocutory orders. B & K Rentals v. Universal Leaf, 319 Md.
127, 132-33 (1990); Montgomery County v. Stevens, 337 Md. 471, 476-77 (1995). The
35
issue is not whether an interlocutory ruling can be appealed to an in banc court, but when
it can be appealed.
The State’s response to these undeniable facts seems to be that Rule 2-551 itself is
unconstitutional because it conflicts with the wording of § 22. We find no conflict in
these regards. Apart from the fact that § 22 (along with Art. IV, §18 of the Constitution,
which need to be read in harmony) specifically directs that procedures regarding in banc
review are to be determined by Rules of this Court, we made clear in McNeece, suprathat Rule 2-551 was not in conflict with § 22 and was constitutional. We now confirm
that ruling.
Finally, the State has failed to overcome the inconvenient fact that, substantively,
it had no authority to appeal the evidentiary ruling by Judge Silkworth. Its right of appeal
in a criminal case is limited to those matters specified in Courts Article, § 12-302(c), and
the in limine order in this case is not among them. We confirm the holdings in Dean,
Estep, Handleman, and Haberlin that “when no appeal from a circuit court could be taken
to the Court of Special Appeals or . . . the Court of Appeals, then no appeal can be taken
to a court in banc.”
In summary, the current version of § 22, read in conjunction with Rule 2-551, is
consistent with the relevant case law and with what appears to be an expressed intent of
the section. It provides a comparable and compatible alternative to an appeal to the Court
of Special Appeals without unduly interrupting the ordinary course of trials, such as
occurred here.
36
For the reasons stated in this Opinion, we shall affirm the judgment of the Court of
Special Appeals.
JUDGMENT AFFIRMED; PETITIONER TO PAY
THE COSTS.
37