Berg v. Berg

JAMES P. SALMON (Retired, Specially Assigned), J. The Maryland Constitution, which was ratified in 1867, included a provision that granted most litigants in Maryland 1 a right to an in banc appeal. That right was set forth in Article IV, section 22 of the Maryland Constitution. Article IV, section 22 was amended in 1978 and in 2006. Nevertheless, much of the original language endures.

Presently, section 22 reads: Where any trial is conducted by less than three 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 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 procedure for appeals ²⁶⁹ to the Circuit Court in banc shall be as provided by the Maryland Rules. 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 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. 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 this Section shall be subject to such provisions as may hereafter be made by Law. (Emphasis added.) In this appeal, appellant, Steven Berg, makes an argument that has never been addressed by any Maryland appellate court during the (approximately) 150 years that Article IV, section 22 has been in effect.

Mr. Berg maintains that the right to an in banc appeal “spring[s] only from trial verdicts and judgments,” and not from any other final judgment. Mr. Berg asserts that the issue considered by the three judges in this case was one that the panel had no jurisdiction to decide because the issue addressed by the panel did “not stem from a merits trial” but rather stemmed from the consideration by the in banc panel of an issue that arose long after the merits trial had been held. According to appellant, the word “trial,” as used in section 22, has a very narrow meaning. For the reasons set forth below, we conclude that the in banc panel did have jurisdiction in this case and we therefore affirm the order issued by that panel.

I. This case had its origin in 2005, when Steven Berg filed, in the Circuit Court for Montgomery County, a complaint for divorce and other relief against appellee, Susan Berg. Ms. Berg filed a counter-claim for divorce in which she also asked ²⁷⁰ for alimony, child support, child custody, and a monetary award. In the early part of June 2007, a merits trial was held to address numerous issues about which the parties disagreed. After an evidentiary hearing, the circuit court took the matter under advisement.

The court, inter alia, later made a $450,000 monetary award in favor of Susan Berg, which was reduced to judgment. Mr. Berg thereafter made irregular payments on that judgment but, to date, the judgment has not been paid in full. On August 7, 2012, Ms. Berg brought a garnishment action against Mr. Berg in which she sought to seize some of her ex-husband’s personal property. With that filing, Ms. Berg attached an interest worksheet setting forth the method she had used in applying payments made on the judgment. 2 According to her worksheet, Mr. Berg, as of September 27, 2012, had paid $871,562.51 toward the judgment but still owed $225,575.62.

In that worksheet, she allocated all the payments received to principal and none to interest. On March 27, 2014, Ms. Berg again brought a garnishment action-this time attempting to attach Mr. Berg’s wages. She again attached an interest worksheet. That worksheet showed that she applied the payments first to interest and then to principal.

The worksheet indicated that since September 27, 2012, Mr. Berg had made an additional payment of $10,000, but he still owed $248,746.65. Mr. Berg objected to the method his ex-spouse used in applying payments on the March 27, 2014 worksheet. He contended that Ms. Berg should have applied his payments first to principal. On October 1, 2014, the circuit court held an evidentiary hearing concerning Mr. Berg’s objection to the garnishment worksheet.

The purpose of the hearing was to determine the outstanding balance Mr. Berg owed on the judgment. At the ²⁷¹ hearing, exhibits were introduced and the court heard testimony from Ms. Berg. Thereafter, on December 17, 2014, the court entered a written order stating that all payments made on the judgment prior to August 7, 2012 should have been exclusively applied to the payment of principal and all payments made thereafter should be applied to the payment of accrued interest first and principal second. After Ms. Berg filed a timely motion to alter or amend judgment, which was denied, she noted an in banc appeal.

A hearing before a panel of three Montgomery County Circuit Court judges was held on May 8, 2015. At the hearing, Mr. Berg argued, as he does here, that the in banc panel had no jurisdiction to entertain the appeal because the issue the panel was asked to consider did not “stem from a merits trial.” The in banc panel ruled that it did have jurisdiction to hear the appeal and entered an order providing that all payments made on the $450,000 judgment should be credited “first to interest and then to principal.” Mr. Berg noted an appeal to this Court in which he does not claim that the in banc panel was incorrect in its ruling concerning the allocation of payments. Instead, the sole issue he presents is whether the in banc panel had jurisdiction to consider the issue it decided. According to Mr. Berg, because the panel had no jurisdiction, the order entered by the in banc panel should be stricken and the circuit court’s order of December 17, 2014 reinstated.

II

RULES OF INTERPRETATION “When interpreting constitutional provisions, we generally employ the same rules of construction ... of statutory language.” Davis v. Slater, 383 Md. 599, 604 , 861 A.2d 78 (2004).... One of the cardinal rules of interpretation is that a court should not reach a meaning beyond the Constitution unless the relevant section is ambiguous. Bernstein v. State, 422 Md. 36, 43 [ 29 A.3d 267 ] (2011).... “Like construing a statute, to ascertain the meaning of a constitutional provision ... we first look to the normal, plain ²⁷² meaning of the language.” Davis, 383 Md. at 604 , 861 A.2d 78 .... When that language is clear and unambiguous, we need not review more than the words of the constitutional provision.

Id. at 604-05 , 861 A.2d 78 .... However, we note that our “goal ... is always to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied by a particular provision, be it statutory, constitutional or part of the Rules.” ... Remson v. Krausen, 206 Md.App. 53, 61-62 , 47 A.3d 613 (2012) (some citations omitted).

III

HISTORY Before discussing the precise contentions of the parties in this appeal, it is useful to review some history. One of the framers of the Constitution of 1867 was Richard H. Alvey, who subsequently became a judge and later Chief Judge of the Maryland Court of Appeals. Judge Alvey was one of the judges who later decided Costigin v. Bond, 65 Md. 122 , 3 A. 285 (1886). In Costigin , the Court said: The Constitution, Art. 4, sec. 22, gave a new right of appeal.

When a trial is conducted by less than the whole number of the [j]udges of a [circuit [c]ourt, it is competent for a party against whom a decision is made to have the point or question reserved for the consideration of the three [jjudges in banc; and their decision is to be conclusive against him. This proceeding is in substitution of an appeal to the Court of Appeals, and makes a considerable alteration in the law on this subject. The change is not to be extended by construction beyond the terms of the Constitution. Id. at 123-24 , 3 A. 285 .

(Emphasis added.) Up until 2006, the first several lines of Article IV, section 22 read: Where any Term is held, or trial conducted by less than the whole number of said [circuit [jjudges, upon the decision, or ²⁷³ 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.... (Emphasis added.) In 2006, Article IV, section 22 was amended, inter alia, by deleting the phrase “Term is held, or.” As mentioned earlier, section 22 now begins with the words “Where any trial is conducted by less than three Circuit Judges.... ” What exactly the framers intended to convey when they used the words “[w]here any Term is held” is uncertain. But as shown by the debates held when another section of the Constitution was being discussed, there were, in 1867, seven judicial circuits that each had three judges. 3 Each year the circuit courts had one or more terms, meaning periods when the courts were in session. For instance, in some of the circuit courts, there would be two or more terms of court where jury trials were held and one or more terms when equity matters were considered.

See Philip B. Perlman, Debates of the Maryland Constitutional Conventions of 1867, 334 (1923) (recounting discussion of an amendment to Article IV, section 20, which was defeated). In Bienkowski v. Brooks, 386 Md. 516, 533 , 873 A.2d 1122 (2005), the Court explained why the framers gave litigants the right to an in banc appeal, viz.: The principal reason for Article IV, § 22, according to Judge Alvey, although in a case not directly involving § 22, was to create “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....” Roth v. House of Refuge, 31 Md. 329, 333 (1869). This was the same reason which had been suggested to the 1867 Convention by Delegate Syester. ²⁷⁴ Another reason appears to have been to reduce the governmental expense associated with numerous appeals in the Court of Appeals. See John J. Connolly, Maryland’s Right of In Banc Review, 51 Md. L.Rev. 434, 446-459 (1992).

In addition, one scholar, who has made a comprehensive study of § 22’s history, has suggested that the provision was a compromise between those convention delegates who believed that three judges should preside over circuit court trials and those delegates who favored a predominantly single-judge system. John J. Connolly, Maryland’s Right of In Banc Review, supra at 435-459. [4] Article IV, section 22 was amended in 1978 by substituting the words “District Court” for “Justices of the Peace.” 5 In 2006, section 22 was amended once again. See Chapter 421 of the Acts of 2006. The amendment had its origin in House Bill 84, which was considered by the House Judiciary Committee on February 2, 2006.

Material in the judiciary committee file indicates that the major purpose of the amendment was to overrule the decision in Bienkowski v. Brooks, supra. See written testimony by Melvin J. Sykes, Esquire, on behalf of the Court of Appeals Standing Committee of Rules of Practice and Procedure, submitted before the committee. ²⁷⁵ After the Court of Special Appeals was formed, an appellee in the court in banc, if he or she was dissatisfied with the ruling by the in banc panel, routinely filed his or her appeal to this Court and not to the Court of Appeals. See, e.g., Board of License Commissioners for Montgomery County v. Haberlin, 320 Md. 399, 405 , 578 A.2d 215 (1990); Estep v. Estep, 285 Md. 416 , 420-21 n. 4, 404 A.2d 1040 (1979). But the Bienkowski Court held that an appellee in the in banc court, who wished to challenge a decision of the in banc panel, could only have appellate review if that party filed a petition for a writ of certiorari to the Court of Appeals that was granted. 386 Md. at 549 , 873 A.2d 1122 .

A secondary purpose of the amendment was to clean up some “archaic” language in section 22, e.g., deleting the provision in section 22 that allowed an appeal from a “writ of error.” 6 See written testimony of Melvin J. Sykes, supra, to the House Judiciary Committee. In the legislative history, there is no specific discussion as to why the words “Term is held, or” were deleted. Nevertheless, the purpose of House Bill 84 was stated to be: FOR the purpose of proposing an amendment to the Maryland Constitution relating to the establishment of the right of a party who did not seek review by a circuit court in banc to the Court of Special Appeals from an adverse decision by the circuit court in banc; altering the composition of a panel of judges for an in banc review; repealing the authority of the circuit courts to regulate by rules the procedure for appeals to the circuit court in banc; providing that the procedure for appeals to the circuit court in banc be provided by the Maryland Rules; providing that a decision by the circuit court in banc does not preclude the right of appeal to the Court of Special Appeals by an adverse party who did not seek in banc review; repealing an obsolete provision regarding “writs of error”; and submitting this amendment to the qualified voters of the State of Maryland for their adoption or rejection. ²⁷⁶ In his opening brief, Mr. Berg contended that the words “[T]erm is held, or” were deleted, with the intent of narrowing the scope of what could be considered by an in banc panel. According to appellant’s brief, before the deletion of these words in 2006, the scope of review by an in banc panel was much broader than it is now and would have encompassed review of “proceedings of the kind challenged below by Ms. Berg.” But at oral argument, appellant’s counsel abandoned that argument and admitted that the deletion of the words “Term is held, or” was not intended to narrow the scope of review and, in fact, did not constitute a substantive change.

That concession is well-founded. The legislative history of House Bill 84 strongly suggests that the words at issue were considered to be archaic and for that reason were deleted with no substantive change intended. See Remson, 206 Md.App. at 64 , 47 A.3d 613 (characterizing the 2006 changes in section 22, as non-substantive). It is inconceivable that the General Assembly would have intended to make such an important change in the right to file an in banc appeal without making any reference to such an intent in the “purpose clause” or elsewhere in the bill’s legislative history.

IV

ANALYSIS A. Post Trial Motions Mr. Berg argues that one cannot file an in banc appeal from rulings on a post-trial motion. Mr. Berg reads the language where “any trial is conducted” to mean that in banc appeals must concern errors that were made by the judge at the “merits trial.” Mr. Berg cites no authority to support that argument nor can we find support by analyzing the words used in the Constitution. Section 22 allows an appeal “upon the decision or determination” of any point or question