Washabaugh v. Washabaugh, s. 89

• Court: Court of Appeals of Maryland
• Citation: 404 A.2d 1027,285 Md. 393
• Docket Number: Nos. 89,90,s. 89
• Parties: Allan R. WASHABAUGH v. Dorothy M. WASHABAUGH. Hazel D. DANIEL t/a Maryland-Virginia Carpets v. STEELE'S CARPET SERVICE, INC.
• Decision Date: 13 July 1979

Page 393

285 Md. 393 404 A.2d 1027 Allan R. WASHABAUGH
v.
Dorothy M. WASHABAUGH.
Hazel D. DANIEL t/a Maryland-Virginia Carpets
v.
STEELE'S CARPET SERVICE, INC. Nos. 89, 90. Court of Appeals of Maryland. July 13, 1979.

[404 A.2d 1028]

Page 395

Melvin Hirshman, Langley Park, for appellant in No. 89 and Jeffrey B. Fisher, Marlow Heights (Fisher & Walcek, Marlow Heights, on the brief), for appellant in No. 90.

No briefs filed on behalf of appellees.

George E. Meng, Upper Marlboro, argued in No. 89, for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, ORTH, COLE and DAVIDSON, JJ.

DIGGES, Judge.

Included within those provisions of the Maryland constitution that together establish this State's judicial system is section 22 of Article IV, which in its entirety provides:

Where any Term is held, or trial conducted by less than the whole number of said 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 the consideration of the three Judges of the Circuit, who shall constitute a court in banc for such purpose; and the motion for such reservation shall be entered of record, during the sitting, at which such decision may be made; and the several Circuit Courts shall regulate, by rules, the mode and manner of presenting such points, or questions to the Court in banc, and the 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 the District Court, nor to criminal cases below the grade of felony, except when the punishment is confinement in the Penitentiary; and

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this Section shall be subject to such provisions as may hereafter be made by Law.

Our concern here with regard to section 22 is the contention now being made that this provision is unconstitutional under the equal protection clause of the fourteenth amendment to the federal constitution because the appellate opportunity it affords is not given to litigants in Baltimore City. Although the jurisdiction of this Court to pass upon this issue has been questioned, we find we are authorized to render a decision upon the matter, and do so by determining that the appeal procedure provided by section 22 does not violate any stricture imposed by the fourteenth amendment's equal protection provision.

Prior to our exposition of the factual circumstances that precipitated the litigation now before us, as well as our explanation[404 A.2d 1029] of our reasons for finding that section 22 is in no way constitutionally infirm, we think it advisable to provide some background concerning the appellate tribunal that section 22 establishes. Originally proposed by convention delegate Richard H. Alvey, who was subsequently to serve with great distinction as a member of this Court initially as an associate judge and then later as chief judge, section 22 was incorporated as part of the Maryland Constitution of 1867 and reads today basically as it did when first adopted. ¹ Although 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. Cf. Roth v. House of Refuge, 31 Md. 329, 333 (1869) (Alvey, J.).

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From the language of section 22 itself, the opinions of this State's appellate courts, ² and Maryland Rules 510 and 761, the only state-wide rules now pertaining to appeals to a court in banc, ³ the following emerges as the course for pursuing

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an in [404 A.2d 1030] banc appeal. If, at a trial conducted by less than all the circuit judges who are regularly authorized to sit in the Maryland judicial circuit where the proceedings are held, ⁴ a decision on any point or question is rendered against a party, that litigant, when it is constitutionally permitted, may reserve the question or point for "the three Judges of the Circuit," ⁵ who "constitute a court in banc." Md.Const., Art. IV, § 22. This "reservation" must be entered upon the record during the "sitting" of the circuit court at which the questioned decision was made, Id., the term "sitting" having been interpreted by this Court as being the day during which

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the determination is rendered. ⁶ Costigin v. Bond, 65 Md. 122, 124, 3 A. 285, 285 (1886). Although the proceeding before a court in banc tends to be informal, the case usually being submitted on the record without filing formal briefs or record extracts as is necessitated in this Court and in the Court of Special Appeals by the Maryland Rules, Md.Rules 828, 830-31, 1028, 1030-31, at present Rule 510b does require the submission of a written exception fully presenting the law and the facts concerning the reserved issue to the trial judge for his signature. After a point or question has been properly reserved, so long as the appeal to the court in banc has not been carried through to hearing and determination it can be abandoned by the moving party in favor of the usual appellate route if a timely and otherwise proper appeal has been or may be noted, State Roads Comm. v. Smith, 224 Md. 537, 544, 168 A.2d 705, 708-09 (1961), but once a determination is made by the court in banc, its decision is final as to the party who sought review by that court. Shueey v. Stoner, 47 Md. 167, 170 (1877); Md.Code (1974), § 12-302(d) of the Courts [404 A.2d 1031] Article. This is not the case with the nonmoving party, however, for he is entitled to further appellate review of a decision of the court in banc that is adverse to his interests. Estep v. Estep, --- Md. ---, ---, 404 A.2d 1040, ---- (1979); Buck v. Folkers, 269 Md. 185, 187-88, 304 A.2d 826, 827-28 (1973). ⁷

Against this backdrop, we turn to the two cases now before us, which, having presented the identical constitutional issue, were argued at the same sitting of this Court, and, accordingly, will be considered together in this opinion. The initial decision that section 22 was unconstitutional came about in the course of petitioner Allan R. Washabaugh's appeal to a court in banc, which was composed of judges from the Seventh Judicial Circuit of Maryland, in which he

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challenged the Prince George's County Circuit Court's (Woods, J.) decree of March 7, 1978, awarding alimony to his wife, respondent Dorothy M. Washabaugh. Citing a recent nisi prius decision in which a three-judge panel of the Supreme Bench of Baltimore City held section 22's in banc appeal procedure was not available to litigants in that city, In re Grand Jury Investigation, Misc. No. 94 (Sup.Bench Balt.City Oct. 18, 1977), Reprinted in Daily Record, October 27, 1977, at 3, the court in banc, which was convened to hear petitioner Washabaugh's appeal with three judges of the Seventh Judicial Circuit sitting, requested, sua sponte, that the parties address the question of section 22's constitutionality under the fourteenth amendment's equal protection clause. Upon motion of Mrs. Washabaugh, the membership of the court in banc was expanded so that all fifteen judges of the Seventh Judicial Circuit sat to hear argument on the issue of section 22's constitutionality. ⁸ On October 17, 1978, by a division of eight to seven, a majority of those judges found that provision to be in violation of the equal protection clause and dismissed Mr. Washabaugh's appeal to the court in banc. Although this dismissal came too late for the husband to initiate a challenge of the circuit court's alimony decree by a direct appeal to the Court of Special Appeals, he nonetheless filed a timely appeal with the intermediate appellate court contesting the court in banc's dismissal order and we granted certiorari prior to that court's hearing the matter.

Hazel D. Daniel, petitioner in the second case we here consider, became embroiled in the controversy now before us in attempting to obtain a determination by a court in banc of the propriety of the Prince George's County Circuit Court's (Mason, J.) entry of a judgment against her as being liable on a debt to respondent Steele's Carpet Service, Inc. On October 24, 1978, her appeal was dismissed by the court in banc, also composed of three judges of the Seventh Judicial Circuit, on the basis of the decision in petitioner Washabaugh's case. This dismissal, however, came within

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thirty days after the circuit court's final judgment was entered against Mrs. Daniel and, as a consequence, she was able, under Maryland Rule 1012a, to file a timely appeal to the Court of Special Appeals questioning both the trial court's determination and the dismissal of her appeal by the court in banc. Once more we granted certiorari prior to consideration by the Court of Special Appeals.

In deciding the constitutional issue presented by these two cases, we are confronted initially with the question of whether this Court has jurisdiction to review the matter. Pointing to section 22's admonition that a court in banc's determination "shall be the effective decision in the premises, and conclusive, as against the party, at whose motion said points, or questions were reserved," Md.Const., Art. IV, § 22; Accord, Md.Code (1974), § 12-302(d) of the [404 A.2d 1032]...