Montgomery County v. McNeece

Decision Date24 November 1987
Docket NumberNo. 118,118
Citation311 Md. 194,533 A.2d 671
PartiesMONTGOMERY COUNTY, Maryland v. John T. McNEECE. Sept. Term 1985.
CourtMaryland Court of Appeals

Richard D. Caplan, Asst. Co. Atty. (Paul A. McGuckian, Co. Atty. and Bruce P. Sherman, Sr. Asst. Co. Atty., on the brief), Rockville, for appellant.

John B. Walsh, Jr., Rockville, for appellee.

Argued Before MURPHY, C.J., and SMITH, * ELDRIDGE, COLE, RODOWSKY, COUCH * and McAULIFFE, JJ.

McAULIFFE, Judge.

Pleased with his promotion to sergeant, but chagrined by the absence of any increase in his salary, firefighter John T.

                McNeece sought administrative relief from the Montgomery County Fire and Rescue Commission.   Unsuccessful there, as well as before the Montgomery County Merit System Protection Board to which he then [533 A.2d 672] appealed, McNeece noted a further appeal to the Circuit Court for Montgomery County.   There, over the strong objection of Montgomery County, Maryland, he was successful, and Judge Stanley Frosh entered an order reversing the administrative action and directing that the Commission award McNeece an increase in salary
                

Within thirty days of the entry of that order, Montgomery County filed a Notice for In Banc Review. McNeece promptly countered with a motion to dismiss. The court in banc granted the motion, finding that Montgomery County had "failed to reserve its points or questions for consideration by the court in banc in accordance with § 22 of Art. IV of the Maryland Constitution." Montgomery County filed an order for appeal to the Court of Special Appeals, and that court dismissed the appeal, citing Maryland Rule 1035(b)(1) and Medical Examiners v. Steward, 207 Md. 108, 113 A.2d 426 (1955). We granted Montgomery County's petition for certiorari to consider the following questions:

Did the Court of Special Appeals err in dismissing the appeal as one not allowed by law?

Did the Circuit Court err in dismissing a request for an in banc appeal and in holding that compliance with Maryland Rule 2-551 did not satisfy the State constitutional requirements of Maryland Constitution, Art. IV, § 22?

Additionally, we directed the parties to brief and argue the question of this Court's authority to issue a writ of certiorari to review the action of the Court of Special Appeals under the circumstances of this case.

I.

We first address the question of our jurisdiction to issue a writ of certiorari in this case. Article IV, § 14 of the Constitution of Maryland provides that "[t]he jurisdiction of the Court of Appeals shall be co-extensive with the in any case or proceeding pending in or decided by the Court of Special Appeals upon appeal from a circuit court ... any party, including the State, may file in the Court of Appeals a petition for certiorari to review the case or proceeding.

                limits of the State and such as now is or may hereafter be prescribed by law."   Section 12-201 of the Courts and Judicial Proceedings Article (Md.Code 1974, 1984 Repl.Vol.) states that, except in certain instances not here relevant
                

This appeal involves a case decided by the Court of Special Appeals upon appeal from a circuit court. It differs from the typical case only in that it has also been considered by a separate appellate tribunal--an in banc court. That difference is insufficient to remove this case from the broad coverage of § 12-201 of the Courts Article, and thus we hold that this Court has statutory jurisdiction to issue a writ of certiorari to the Court of Special Appeals in a case involving an in banc appeal. Whether this Court has, or whether the lower appellate tribunals involved in this case had, jurisdiction to consider the underlying issues are separate questions that we address in the following sections. We here decide only that we have jurisdiction to issue a writ of certiorari to enable us to consider those questions.

II.

Turning to the question of whether the Court of Special Appeals properly dismissed Montgomery County's appeal from the action of the in banc court, we hold that it did. The Constitution specifically provides that the decision of the in banc court is final as to the party appealing to that court, but not as to the non-moving party.

[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 Constitution of Maryland, Article IV § 22.

appeal, or writ of error to the Court of Appeals may be allowed by Law.

The Legislature has also acted to implement the constitutional mandate of finality. Section 12-302 of the Courts Article sets forth specific exceptions to the general right of appeal granted by § 12-301, and in subsection (d) provides:

Section 12-301 does not permit an appeal from the decision of the judges of a circuit court sitting in banc pursuant to Article IV, § 22 of the Constitution, if the party seeking to appeal is the party who moved to have the point or question reserved for consideration of the court in banc.

This Court has consistently held that the decision of the court in banc is conclusive, final, and non-appealable by the party who sought the in banc review, and as to that party a reservation of points or questions for consideration by a court in banc is a substitute for an appeal to the Court of Special Appeals. Buck v. Folkers, 269 Md. 185, 186-87, 304 A.2d 826 (1973); Medical Examiners v. Steward, 207 Md. 108, 111-12, 113 A.2d 426 (1955); Costigin v. Bond, 65 Md. 122, 3 A. 285 (1886).

Against this array of constitutional, statutory, and decisional law, Montgomery County presents a two-pronged attack. First, it urges that the in banc court's determination of the existence vel non of its own jurisdiction is always reviewable on appeal; and second, that the decision of the in banc court is final and conclusive only as to those issues actually reserved and presented by the moving party, and not, therefore, as to a question of jurisdiction raised by the adverse party, or by the in banc court on its own motion. Under the facts of this case, neither contention has merit.

It is true that even in the absence of a statute conferring the right to appeal, an appellate court may entertain an appeal to review a contention that an inferior appellate or trial court acted in excess of its jurisdiction. It is a 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.

                Pr. Geo's Co. v. American Federation, 289 Md. 388, 398, 424 A.2d 770 (1981);   Urbana Civic v. Urbana Mobile, 260 Md. 458, 272 A.2d 628 (1971);   Bd. of Med. Examiners v. Steward, 203 Md. 574, 580, 102 A.2d 248 (1954);   Darrell v. Biscoe, 94 Md. 684, 687, 51 A. 410 (1902);  Webster v. Cockey, 9 Gill 92, 98 (1850)
                

Bd. of Med. Examiners v. Steward, supra, 203 Md. at 580, 102 A.2d 248.

The rule is different, however, where the inferior appellate tribunal, possessed of authority to determine its own jurisdiction, determines that it is without jurisdiction in the case before it. Given the statutory prohibition against further appeal, that decision is final and unappealable. Paraphrasing the language of this Court in Johnson v. Board of Zoning Appeals, 196 Md. 400, 412, 76 A.2d 736 (1950), if there is no right of appeal from the in banc court to the Court of Special Appeals, and if the in banc court had the power to decide what it did decide, then its decision, whether right or wrong in point of law or fact, cannot be reviewed. In Bd. of Med. Examiners v. Steward, supra, this Court held 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. More recently, in Washabaugh v. Washabaugh, 285 Md. 393, 404 A.2d 1027 (1979), this Court re-affirmed the holding of Bd. of Med. Examiners v. Steward, and distinguished the case of an in banc court "attempt[ing] to commit suicide" by determining that the United States Constitution prohibited its existence. In light of the foregoing discussion, the County's first contention that the in banc court's determination of the existence of its own jurisdiction is always reviewable on appeal must fall.

Montgomery County also argues that it had a right to appeal the decision of the in banc court because the rule of finality is limited to questions presented to the in banc court by the moving party. Because it did not reserve or present any question concerning the jurisdiction of that court, the County contends it is not foreclosed from appealing that decision. The County relies in part upon State Roads Comm. v. Smith, 224 Md. 537, 168 A.2d 705 (1961). That reliance is misplaced, however, because Smith held only that within the time permitted for appeal and before a decision by the in banc court, a party may abandon an earlier notice of in banc appeal and perfect a direct appeal. We there said that it is the decision of the court in banc that is given conclusive effect by § 22, and not the mere initiation of the proceeding. Id. at 544, 168 A.2d 705. The County also cites Merritts v. Merritts, 299 Md. 521, 474 A.2d 894 (1984), for the proposition that a moving party in an in banc appeal may later appeal to the Court of Special Appeals. That statement is correct only in the particular context of Merritts, and not as a general rule. Merritts involved successive appeals in the same case, the second of which involved subsequent issues which were not and could not have been considered in the first appeal. Under those circumstances, we held that the first appeal to an in banc court did not bar the wholly separate...

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