Perkins v. Eskridge

• Decision Date: 24 September 1976
• Docket Number: No. 65,65
• Citation: 278 Md. 619,366 A.2d 21
• Parties: Minnie L. PERKINS and Louis A. Perkins, v. Timothy H. ESKRIDGE. . Order
• Court: Maryland Court of Appeals

Page 619

278 Md. 619

366 A.2d 21

Minnie L. PERKINS and Louis A. Perkins, v.Timothy H. ESKRIDGE.

No. 65.

Court of Appeals of Maryland.

Order Sept. 24, 1976.

Opinion Dec. 1, 1976.

Marvin Ellin, Baltimore (Jonathan Schochor and Ellin & Baker, Baltimore, on the brief) for appellants.

Jeffrey B. Smith and William W. Cahill, Jr., Baltimore, on the brief, for amicus curiae, Md. State Bar Ass'n, Inc. and The Bar Ass'n of Baltimore City.

E. Dale Adkins, III, Baltimore (John F. King and Anderson, Coe & King, Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ.

ORDER

PER CURIAM.

It appearing, for reasons to be stated in an opinion to be filed later, that the provisions of Chapter 454 of the Laws of 1976amendingCourts and Judicial Proceedings Article, Section 6-204(Code, 1974 Vol., 1976 Cum.Supp.) violate the provisions of Article IV, Section 8 of the Maryland Constitution, it is this 24th day of September, 1976

ORDERED, by the Court of Appeals of Maryland, that the order dated August 31, 1976 of the Baltimore City Court refusing to rescind and/or strike the order of removal dated August 31, 1976 be, and it is hereby, reversed with costs; and it is further

ORDERED that the mandate shall issue forthwith.

OPINION

DIGGES, Judge.

Antonio's comment that 'What's past is prologue,'¹ certainly could be appropriately applied to the more than 170-year history of the statutory and constitutional aspects of a litigant's right to elect that his case be removed from one Maryland court to another.And within the past year, more so than during most other periods, there indeed has been much ado about that right as utilized by some parties in civil law actions.On September 18, 1975, this Court held that those portions of Article IV, section 8 of the Maryland Constitution applicable to the automatic removal of civil actions were unenforceable because they deprived Baltimore City litigants of the equal protection of the laws as guaranteed by the Fourteenth Amendment to the United States Constitution.SeeDavidson v. Miller, 276 Md. 54, 82, 344 A.2d 422, 439(1975).²We did rule, however, that trial courts in this State retain their inherent judicial power to grant removals when it is necessary 'to rid the case of any prejudicial barnacles which, because of local prejudice, passion or interest, may have attached.'Id. at 83, 344 A.2d at 439.

Within months of our Davidson decision, the legislature acted to reinstate the mandatory removal right by attempting to eliminate the constitutional defect which this Court determined in that case to exist.At its 1976 session, the General Assembly enacted legislation(effective July 1, 1976), now codified as Maryland Code, Courts and Judicial Proceedings Article(1974, 1976 Cum.Supp.), § 6-204, which grants all litigants in specified actions, upon application, an automatic removal to the court of another county.³Were this enactment constitutional, litigants in Baltimore City would have a right of removal, as a practical matter, equal to the right under the Constitution prior to Davidson available to those in the 23 counties and the equal protection flaw of Article IV, section 8 would no longer prevent litigants from obtaining automatic removals.The life of this 1976enactment was, however, quite short.By per curiam order filed on September 24, 1976, this Court concluded that, for reasons to be stated at a later date, this law's provisions violated those of Article IV, section 8 of the Maryland Constitution;we now state the reasons for that order.

The factual background of this appeal is uncomplicated, so much so that the relevant portions may be stated in a brief paragraph.Suit in this medical malpractice case was originally initiated by petitionersMinnie L. Perkins and her husband against Dr. Timothy H. Eskridge in the Baltimore City Court on March 31, 1975.Although respondent Eskridge did not seek a removal of the action during the next year under the inherent power of the court, shortly after § 6-204 became effective and within the time permitted by the act for the removal of cases instituted prior to its effective date, Dr. Eskridge on August 3, 1976, requested a removal to a jurisdiction outside Baltimore City.Acting pursuant to the new law, Judge Sodaro on August 31 transferred the action to the Circuit Court for Garrett County, and on the same day, denied the petitioners' motion to rescind the removal order.After this ruling against them, the petitioners filed yet another paper that day, this time a notice of appeal to the Court of Special Appeals.⁴Because of the importance of the question involved, we granted certiorari before that court considered the matter.

The resolution of the central issue in this case-the constitutionality of § 6-204-involves an examination of this Court's decision in Davidson, particularly the effect of that ruling on the viability of Article IV, section 8 of the Maryland Constitution with respect to any limitation it may place on legislative enactments.The petitioners primarily contend that the legislative change in the removal right was invalid because it was not accomplished by a constitutional amendment.⁵Conversely, the respondents argue that the legislature had the unfettered power to create a statutory right of removal since the effect of Davidson was to eliminate the civil removal provisions from Article IV, section 8, leaving only those provisions relating to criminal causes.Because as set out below, we determine that the impact of Davidson was not so severe as to amount to the excision of Article IV, section 8 from the Maryland Constitution as that section applies to civil actions (though perhaps our decision rendered the provision dormant for some purposes), we determine that the provision retains vitality sufficient to prohibit legislative enactments which conflict with it.Concluding, as we do, that § 6-204 directly contravenes the mandate expressed in Article IV, section 8, it follows that this enactment must yield to that higher authority.To understand why we reach these conclusions, it is necessary that we set out in some depth our analysis of (i) the origins of and rationale for the judicial review doctrine, (ii) the effect of a judicial determination that a statutory provision is unconstitutional, (iii) the consequence of a judicial determination that a state constitutional provision conflicts with the Federal Constitution, (iv) how the above principles relate specifically to the removal right, and (v) why § 6-204 conflicts with Article IV, section 8 of the Maryland Constitution.

(i)

Judicial review of constitutional issues is an inveterate tenet in the jurisprudential system of this State; nevertheless, it is important to our analysis of the effect of a decision holding a statute or constitutional provision to be in conflict with a higher authority that we examine very briefly the bases and scope of this Court's power in that regard.Although at this nation's inception, there was some question whether the judiciary could declare acts of the legislature unconstitutional, see G. Gunther, Cases and Materials on Constitutional Law 16-25 (9th ed. 1975);Note, The Theory of State Constitutions, 1966 UtahL.Rev. 542, 560, even before Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60(1803), established the doctrine of judicial review in the Supreme Court of the United States, numerous state and federal courts had already claimed and exercised this power.SeeC. Antieau, 2 Modern Constitutional Law§ 15:7, at 606(1969);G. Gunther, supra at 16-17;C. Haines, The American Doctrine of Judicial Supremacy 88-203 (2d rev. ed. 1932);Note, supra, 1966Utah L.Rev.at 561.One of the cases pre-dating Marbury v. Madison was the decision penned by Chief Judge Chase for our predecessors in Whittington v. Polk, 1 H. & J. 236(1802), wherein the following rationale for the doctrine of judicial review of legislation is set forth:

'It is the office and province of the Court to decide all questions of law which are judicially brought before them, according to the established mode of proceeding, and to determine whether an Act of the Legislature, which assumes the appearance of a law, and is clothed with the garb of authority, is made pursuant to the power vested by the Constitution in the Legislature; for if it is not the result or emanation of authority derived from the Constitution, it is not law, and cannot influence the judgment of the Court in the decision of the question before them.

'The oath of a Judge is 'that he will do equal right and justice according to the law of this State, in every case in which he shall act as Judge.'To do right and justice according to law, the Judge must determine what the law is, which necessarily involves in it the right of examining the Constitution, (which is the supreme or paramount law, and under which the Legislature derive the only authority they are invested with, of making laws,) and considering whether the Act passed is made pursuant to the Constitution, and that trust and authority which is delegated thereby to the legislative body.

'The three great powers or departments of government are independent of each other, and the Legislature, as such, can claim no superiority or pre-eminence over the other two.The Legislature are the trustees of the people, and, as such, can only move within those lines which the Constitution has defined as the boundaries of their authority, and if they should incautiously, or unadvisedly transcend those limits, the Constitution has placed the judiciary as the barrier or safe-guard to resist the oppression, and redress the injuries which might accrue from such inadvertent, or unintentional infringements of the Constitution.'Id. at 244-45.

Thus the teachings of Whittington established two fundamental concepts shortly after the birth of this State: A judge must say what...