Bienkowski v. Brooks

ELDRIDGE, J. Article IV, § 22, of the Maryland Constitution grants, with some exceptions, a right of appeal from a decision by a circuit court to a three-judge “court in banc.” 1 The court “in banc is established and functions ‘as a separate appellate tribunal,’ ” and the “purpose of the constitutional provision authorizing an in banc appeal was to provide a substitute or alternate for an appeal to the Court of Appeals,” Board v. Haberlin, 320 Md. 399, 406 , 578 A.2d 215, 218-219 (1990). “The decision of the court en banc is conclusive, final and nonappealable by the party who sought the en banc review.... As to that party, a reservation of points or questions by the Court en banc is a substitute for an appeal to the Court of Appeals.” Buck v. Folkers, 269 Md. 185, 186-187 , 304 A.2d ⁵²³ 826, 827 (1973). On the other hand, the appellee in the court in banc is not precluded from seeking review of the court in banc’s decision by “the Court of Appeals [as] may be allowed by Law.” The principal issue in this case is whether Article IV, § 22, of the Maryland Constitution precludes the Court of Special Appeals from exercising jurisdiction over an “appeal” from a court in banc taken by the party who was an appellee in the court in banc. While this Court in dicta has indicated that the Court of Special Appeals is authorized to exercise jurisdiction over the merits of such appeals, or has proceeded on the assumption that the Court of Special Appeals may exercise such jurisdiction, the constitutional question has never previously been a disputed issue resolved by a holding of this Court. 2 We shall today hold that the Court of Special Appeals ⁵²⁴ is not authorized to exercise jurisdiction over the merits of such appeals..

We shall also hold that an unsuccessful appellee in the court in banc is usually entitled to seek further appellate review by filing in the Court of Appeals a petition for a writ of certiorari. I. Since the issues in this tort action concern appellate procedure and trial procedure, the underlying facts may be set forth briefly. Early in the morning of June 3, 1997, during a rain storm and while it was still dark, Kazimera Bienkowski and her husband, Mieczyslaw Bienkowski, were walking along the side of a road in Anne Arundel County en route to a light rail station. They intended to travel by train to their place of employment in Baltimore City.

While walking along the side of the road, Mrs. Bienkowski was struck and killed by a motor vehicle operated by Jonathan Paul Brooks. Mr. Bienkowski subsequently filed in the Circuit Court for Anne Arundel County a three-count complaint against Mr. Brooks, alleging that the sole cause of the accident was Brooks’s negligent driving. Count one of the complaint alleged that Mr. Bienkow-ski suffered injuries, lost wages, and incurred medical bills resulting from the accident. Count two was a survival action by Mr. Bienkowski as personal representative of the decedent’s estate, and count three was a wrongful death action in which Mr. Bienkowski sought economic and non-eeonomic damages caused by his wife’s death.

Following an extensive trial before Judge Robert Heller and a jury, the case was submitted to the jury on various issues. The jury returned a verdict for the plaintiff in the total amount of $26,744.47. The jury’s verdict sheet, in pertinent part, stated as follows: ⁵²⁵ “VERDICT SHEET “1. Do you find that the defendant, Jonathan Brooks, was negligent?

X YES _NO (If your answer to this question was “Yes”, please answer the next question. If your answer to this question was “No”, then answer no further questions, but sign this form at the end.) “2. Do you find that defendant Jonathan Brooks’ negligence caused the accident? X YES __NO (If your answer to this question was “Yes”, please answer the next question.

If your answer to this question was “No”, then answer no further questions, but sign this form at the end.) “3. Do you find that Kazimiera Bienkowski was guilty of any negligence that caused or contributed to the accident? YES X NO (If your answer to this question was “Yes”, then answer no further questions, but sign this form at the end. If your answer to this question was “No”, please answer the next question.) “4.

A) What damages, if any, do you award Plaintiff, Mieczyslaw Bienkowski, individually, as a result of the accident for: 1) His past medical expenses? $ 250.47 2) His past lost wages? $ 840.00 3) His non-economic damages? 1 $ 0.00 Total of Damages $ 1,090.47 B) What damages, if any, do you award the estate of Kazimiera Bienkowski as a result of the accident for: 1) Her medical expenses? $ 54.00 2) Her funeral expenses? $ 5,000.00 3) Her past non-economic damages? $ 0.00 Total of Damages $ 5,054.00 ⁵²⁶ C) What damages, if any, do you award Mieczyslaw Bienkowski as a result of the death of his wife, Kazimiera Bienkowski for: 1) Loss of Mrs. Bienkowski’s earnings during their joint lives? $20,600.00 2) Replacement value of Mrs. Bienkowski’s house-hold services during their joint lives? $ 0.00 3) Non-economic damages? 1 2 $ 0.00 Total of damages? $20,600.00 Thereafter, the plaintiff Bienkowski filed a motion for a new trial limited to the amount of damages. The plaintiff contended that the award of damages was inadequate and that the jury disregarded evidence related to damages. Specifically, the plaintiff complained of the jury’s failure to award Mr. Bienkowski any non-economic damages for the death of his wife and failure to award any non-economic damages for Mr. Bienkowski’s “serious and permanent injuries.” The motion pointed out that “[ejven Defendant’s economist agreed at trial” that the “Plaintiffs loss of the value of household services alone [was] worth at least $96,437.00.” (Emphasis in original). Judge Heller, in an order and memorandum opinion, denied the motion for a new trial limited to damages.

After setting forth the facts of the case, the procedural history, and the parties’ arguments, Judge Heller’s opinion continued as follows (footnotes omitted): “The Court is mindful that it must consider the core question of whether justice has been served by the jury’s verdict. The Court is mindful of its responsibilities to prevent a miscarriage of justice due to an improper verdict. ⁵²⁷ The Court is likewise mindful that it should not casually overturn the verdict of the jury. * * * “The Court’s conscience was not shocked by the jury’s damages verdicts. As above noted, the jury awarded the plaintiff those damages sought by plaintiff with respect to all matters except non-economic damages and damages for the replacement value of Mrs. Bienkowski’s household services. The Court can find no support for the argument that the jury was confused about the evidence regarding the plaintiff’s damages and/or confused by the Court’s instructions regarding the damages, or that the jury ignored or disregarded the evidence and/or the Court’s instructions regarding the plaintiffs damages. “The Court was more surprised that the jury found in favor of the plaintiff and against the defendant on liability especially given the testimony of the reconstruction experts called by plaintiff and defendant.

The Court found the defendant’s expert to be far more credible in his opinions and the basis for his opinions than that of the plaintiffs expert. In fact, the Court found the Plaintiffs reconstruction expert’s testimony not credible. Upon hearing the jury’s verdict the Court also suspected that the jury had in fact reached a compromise verdict. The Court does not believe it can be fair to both parties if it takes ‘face value’ the verdict sheet as it relates to the verdicts findings as to liability and some of the damages awarded while not taking ‘face value’ the verdicts of the jury as to those damages not awarded. “Although the defendant opposes the new trial request, the defendant asks that if the Court is inclined to order a new trial, that the new trial be granted as to all issues.

Plaintiff opposes the granting of a new trial as to all issues and asks only that a retrial be on damages. As justice requires fairness to both plaintiff and defendant, a retrial on damages only would, in the Court’s discretion, not be fair to both parties. To close its eyes to the entire trial and focus only on the damages verdicts when the jury exhibited an ⁵²⁸ understanding of the issues before it and the instructions given would not be justice to all of the parties. “Given that the plaintiff seeks only a new trial as to damages, and opposes a new trial if a new trial is to be granted as to all issues, and given that the Court is, as stated, mindful of its responsibility to do justice by all parties, the Court’s conscience will not allow the granting of a new trial limiting the new trial to the issue of damages only, and will therefore deny the Plaintiffs motion.” Mr. Bienkowski filed a “notice for in banc review” under the provisions of Maryland Rule 2-551(a) and (b). In his supporting memorandum pursuant to Rule 2-551 (c), Mr. Bienkowski argued that “Judge Heller failed to properly exercise his discretion and he abused his discretion in denying ‘Plaintiffs Motion for New Trial on the Issue of Damages.’ ” 3 ⁵²⁹ After the filing of memoranda and oral argument, the court in banc (consisting of Judges Loney, Manck and North) filed an opinion and order reversing Judge Heller’s denial of the new trial motion on damages.

The in banc court’s order mandated that “this case is remanded for a new trial solely on the issue of damages.” The opinion of the in banc court pointed out that the uncontradicted evidence showed “that during her life Mrs. Bienkowski performed household services” and that the defendant’s “own economic expert valued the loss of these services at approximately $96,000.00.” The in banc opinion concluded that “the trial court committed an abuse of discretion regarding household services, and ... that error merits a new trial on the issue of damages... . ” The defendant-appellee before the in banc court, Mr. Brooks, appealed to the Court of Special Appeals. The Court of Special Appeals reversed the judgment of the in banc court and remanded the case to the Circuit Court for the entry of judgment in accordance with the jury verdict. Brooks v. Bienkowski, 150 Md.App. 87 , 818 A.2d 1198 (2003). The Court of Special Appeals held that Judge Heller did not abuse his discretion in denying the motion for a new trial.

The court explained ( 150 Md.App. at 135-136 , 818 A.2d at 1226 ): “In cases where liability is hotly contested, a compromised verdict, in which the jury finds for the plaintiff as to liability but awards no non-economic damages, can be a verdict that renders basic justice to the parties. Judge Heller said that he believed this was such a case. We are unable to say that he was wrong. The jury was told that they were not required to believe the testimony of any witness.

This meant, of course, that they were not required to believe Mr. Bienkowski or any other witness called to discuss damages. Alternatively, the jury could have had serious doubts about whether the proof of non-economic ⁵³⁰ damages was too speculative and in the ‘politics of jury deliberation,’ the jury could have given the full amount requested as to one damage element {e.g., the $20,860 for Mrs. Bienkowski’s future loss of wages) and zero dollars for other types of damage. Judge Heller was in a far superior position than we, or any other appellate court, to determine whether the compromised verdict of the sort he believed was rendered in this case achieved justice.” The plaintiff then filed a timely petition for a writ of certiorari which this Court granted. Bienkowski v. Brooks, 376 Md. 49 , 827 A.2d 112 (2003).

The certiorari petition presented what purported to be four questions, with two of them relating to alleged errors by the Court of Special Appeals in reviewing the decisions below. The other two questions asserted errors by Judge Heller in denying the motion for a new trial allegedly on the theory of a “compromised verdict.” The latter questions were as follows: “In a wrongful death/negligence action, does Maryland recognize the theory of a ‘compromised verdict’ as to the liability issues as a valid basis to deny Plaintiff a new trial on the issue of damages when a jury fails to award that Plaintiff any damages for uncontradicted economic and non-economic losses? “If so, can the trial judge make a factual finding or determination of a ‘compromised verdict’, as a basis for denying Plaintiff’s Motion for a new trial, based solely on suspicion and speculation and without any evidence of record whatsoever to support that finding?” After the filing of briefs and oral argument before this Court on the questions presented in the certiorari petition, this Court issued an order having the effect of amending our previous order granting the certiorari petition and adding two issues. Bienkowski v. Brooks, 385 Md. 728 , 870 A.2d 622 (2003). 4 The Court requested supplemental briefs and re ⁵³¹ scheduled the case for further oral argument on additional issues. These two additional issues are as follows: “I. Whether, in light of the wording of Article IV, § 22 of the Maryland Constitution, the Court of Special Appeals had jurisdiction to entertain and decide the merits of the appeal from the court en banc, and, in this connection, whether the notation in Estep v. Estep, 285 Md. 416 , 420-421 n. 4, 404 A.2d 1040 , 1042-1043 n. 4 (1979), is erroneous. “II.

With regard to the ruling on the motion for a new trial, and if the Court of Special Appeals had jurisdiction to decide the merits of the appeal from the court en banc, whether the Court of Special Appeals should review the circuit judge’s decision for abuse of discretion, or should review solely the determination by the court en banc.” Since our answer to the first additional issue shall be that the Court of Special Appeals lacks authority to exercise jurisdiction over the merits of appeals from in banc courts, the second additional issue, as worded in the above-quoted order, is no longer presented by the case. Nevertheless, we shall answer the substance of the second issue in terms of this Court’s review of the decisions below.

II

A. Article IV, § 22, originated with the Maryland Constitution of 1867. The idea of an appeal to three circuit judges in banc was apparently first proposed to the 1867 Constitutional Convention by Delegate Andrew K. Syester of Washington County. Delegate Syester was a lawyer practicing in Hagerstown. The proposal was made in a speech on Friday, July 19, 1867, ⁵³² to the Convention.

According to a Baltimore newspaper account, “Mr. Syester proposed that the three Judges [of a circuit] should 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.” 5 A Hagerstown newspaper quoted Delegate Syester’s speech as follows: “But there was a large class of people humble in life, with but scanty means, struggling on with adversity, and misfortune too poor [to] pay the uncommon fees necessary to be paid counsel in prosecuting appeals. “There were thousands of people who have toiled along the weary journey of life with but small gains, and limited accumulations, people to whom the loss of a few hundreds of dollars would produce bankruptcy, and whose families would be beggared. To all such, the prosecution of an appeal was a measure of so much hazard that a conscientious lawyer would always advise a submission to even an unlawful ruling of the one judge, rather than put in jeopardy the little all that his client possessed in the world.” 6 On Monday, July 22, 1867, Mr. Syester’s fellow Washington County delegate, Richard Henry Alvey, also a Hagerstown lawyer, formally proposed to the Convention the provision which became Article IV, § 22. 7 In one of the earliest cases involving § 22 to come before this Court, with Chief Judge Alvey on the panel, § 22 was described as follows (Costigin v. Bond, 65 Md. 122, 123-124 , 3 A. 285, 285 (1886)): “The Constitution, Art. 4, § 22, gave a new right of appeal. When a trial is conducted by less than the whole ⁵³³ number of the Judges of a Circuit Court, 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 Judges 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.” 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. 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. 8 ⁵³⁴ During the 1867 Constitutional Convention, the provision which became Article IV, § 22, underwent some revisions. As originally proposed to the Convention by Delegate Alvey on Monday, July 22, 1867, the provision read as follows (Proceedings of the State Convention of Maryland To Frame a New Constitution, at 435-436 (Annapolis 1867)): “Where any term is held, or trial conducted by one of said Judges alone, upon decision or determination of any point or question by him, it shall be competent to the party or parties 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; or said party or parties may elect to have said decision or determination reviewed on appeal to the Court of Appeals, in cases where by law an appeal will lie; but in all cases of points or questions reserved, the motion therefor shall be entered, of record during the sitting, at which such ruling or decision was made, and such motion shall be a waiver of the right of appeal to the Court of Appeals, from such decision or judgment; and in order that the points or questions reserved may be fairly presented to the Judges in banc, the said Circuit Judge trying the cause shall make full and fair notes of such of the proceedings before him, as will fully present such points or questions; and the decision of the said Judges in banc shall be the effective determination of the point or question reserved, and judgment or other proceedings shall be had thereupon. The right of having questions reserved shall not, however, apply to trials of appeals from Justices of the Peace.” See also, Philip B. Perlman, Debates of the Maryland Constitutional Convention of 1867, at 333 (1923). ⁵³⁵ Although there seemed to be no objections to the substance of Delegate Alvey’s proposal, there was evidently a concern about some of the language.

Delegate Syester appeared to be concerned that the reference to “appeal to the Court of Appeals, where by law an appeal will lie,” might not include some criminal cases in which appellate review was by writ of error. John J. Connolly, Maryland’s Right of In Banc Review, supra, at 452-453. On July 31, 1867, Delegate Alvey proposed substitute language which was very close to the final language of § 22, and which included the words “right of appeal or writ of error.” Delegate Syester then moved to insert the language “civil or criminal” after the word “cases,” and this amendment was accepted by Delegate Alvey. Delegate William N. Hayden of Carroll County offered an amendment which became the next to the last clause of § 22, excluding from the section criminal cases which were neither felonies nor misdemeanors punishable by imprisonment in the penitentiary.

Philip B. Perlman, Debates of the Constitutional Convention of 1867, supra, at 383. Section 22 was then adopted by the Convention in its final form as follows: “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 ⁵³⁶ 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 the punishment is confinement in the Penitentiary; and this Section shall be subject to such provisions as may hereafter be made by Law.” The only change in § 22 thereafter was a 1978 constitutional amendment which substituted “District Court” for “Justices of the Peace.” B. As stated by Judge Alvey only a few years after the adoption of the Constitution of 1867, with respect to the meaning of another new provision in that Constitution, where there exists a “general rule for the construction of statutes,” there “can be no good reason suggested why this same general principle ... should not also apply as a rule of ' interpretation of the Constitution.” New Central Coal Co. v. George’s Creek Coal and, Iron Co., 37 Md. 537, 557 (1873). Much more recently, this was reiterated by Judge Battaglia for the Court Davis v. Slater, 383 Md. 599, 604 , 861 A.2d 78, 81 (2004): “When interpreting constitutional provisions, we generally employ the same rules of construction that are applicable to the construction of statutory language.” See also, e.g., Fish Market v. G.A. A., Inc., 337 Md. 1, 8 , 650 A.2d 705, 708 (1994); Luppino v. Gray, 336 Md. 194 , 204 n. 8, 647 A.2d 429 , 434 n. 8 (1994) (“The rules governing the construction of statutes and constitutional provisions are the same”), and cases there cited.

When attempting “to ascertain the meaning of a constitutional provision” or other enactment, “we first look to the normal, plain meaning of the language. * * * If that language is clear and unambiguous, we need not look beyond the provision’s terms.... ” Davis v. Slater, supra, 383 Md. at 604-605 , 861 A.2d at 81 . See, e.g., Comptroller v. Phillips, 384 Md. 583, 591 , 865 A.2d 590, 594 (2005) (“If the plain language ... is unambiguous and is consistent with the [enactment’s] appar ⁵³⁷ ent purpose, we give effect to the [enactment] as it is written”); Lee v. Cline, 384 Md. 245, 256-257 , 863 A.2d 297, 304 (2004); Collins v. State, 383 Md. 684, 688 , 861 A.2d 727, 730 (2004) (“We begin with the plain language of the [enactments]”); Arundel Corp. v. Marie, 383 Md. 489, 502 , 860 A.2d 886, 894 (2004) (“If there is no ambiguity in that language [of an enactment], ... the inquiry as to legislative intent ends; we do not then need to resort to the various, and sometimes inconsistent external rules of construction”); Deville v. State, 383 Md. 217, 223 , 858 A.2d 484, 487 (2004) (“Ordinary and popular understanding of the English language dictates interpretation of terminology”). Moreover, when the meaning of a word or phrase in a constitutional or statutory provision is perfectly clear, this Court has consistently refused to give that word or phrase a different meaning on such theories that a different meaning would make the provision more workable, or more consistent with a litigant’s view of good public policy, or more in tune with modern times, or that the framers of the provision did not actually mean what they wrote. See, e.g., Montrose Christian School v. Walsh, 363 Md. 565, 595 , 770 A.2d 111, 129 (2001) (The “phrase ... clearly does not mean what is suggested ....

We decline to construe ‘purely’ as if it were ‘primarily’ or ‘some’ ”); Dodds v. Shamer, 339 Md. 540, 554 , 663 A.2d 1318, 1325 (1995) (Refusing to construe a statute, specifically applicable to only four named counties, as applicable to other counties); Davis v. State, 294 Md. 370, 378 , 451 A.2d 107, 111 (1982) (To construe the phrase in a statute “as contended for by the petitioner, would be to re-draft the statute under the guise of construction. * * * TI]t would be ‘to assume an Alice in Wonderland world where words have no meaning,’ Welsh v. United States, 398 U.S. 333, 354 , 90 S.Ct. 1792, 1803 , 26 L.Ed.2d 308, 326 (1970) (concurring opinion). This we decline to do”); Mauzy v. Hornbeck, 285 Md. 84, 93 , 400 A.2d 1091, 1096 (1979) (refusing to construe the statutory phrase “all professional employees” as “only certain types of” professional employees); State Farm Mutual v. Insurance Commissioner, 283 Md. 663, 671 , 392 A.2d 1114, 1118 (1978); ⁵³⁸ Wheeler v. State, 281 Md. 593, 598 , 380 A.2d 1052, 1054 (1977), cert. denied, 435 U.S. 997 , 98 S.Ct. 1650 , 56 L.Ed.2d 86 (1978) (“We are not at liberty to bring about a different [constitutionality] result by inserting or omitting words” in the enactment); Slate v. Zitomer, 275 Md. 534, 539, 544 , 341 A.2d 789, 795 (1975), cert. denied sub nom. Gasperich v. Church, 423 U.S. 1076 , 96 S.Ct. 862 , 47 L.Ed.2d 87 (1976) (The Court rejected an argument that the phrase “prior to” in a statute should be construed as “subsequent to” allegedly because the former phrase was an “error of draftsmanship” and the latter phrase reflected “the real legislative intent.” The Court also held that the principle, that statutes should not be construed so as to lead to alleged undesirable consequences, “does not extend so far as to allow a court to substitute for the words ‘prior to’ [a certain date] words conveying an exactly opposite meaning”). Turning to the present language of Article IV, § 22, of the Maryland Constitution, the words “Court of Appeals” are as clear and unambiguous as any three words could be.

The words denominate the State’s highest court which originated in the mid-seventeenth century and has existed continuously from that time until the present. Furthermore, there has been only one Court of Appeals. There has never been another Maryland court with the same name. It is the Court provided for in Article IV, §§ 1,14,17, and 18 of the Maryland Constitution.

Obviously Art. IV, § 22, when adopted in 1867, contemplated that the unsuccessful appellee in a court in banc could seek further appellate review in this Court, i.e., the Court of Appeals. This proposition is not disputed by the respondent in the present case. The issue, therefore, is not the intent of § 22 when it was adopted in 1867. The only issue is whether any constitutional amendment since 1867 changed the provision in § 22 for further appellate review by the Court of Appeals.

The constitutional authorization for the General Assembly to create intermediate appellate courts, between the circuit ⁵³⁹ courts/courts in banc and the Court of Appeals, was proposed by Ch. 10 of the Acts of 1966, adopted by the voters in November of 1966, and set forth primarily in Article IV, § 14A, of the Maryland Constitution. 9 Ch. 10 proposed amending other sections of the Constitution’s judicial article (Article IV) so as to take into consideration any intermediate appellate courts created by the General Assembly pursuant to § 14A. Thus, Ch. 10 proposed, and the voters adopted, amendments to Article IV, §§ 1, 2, 3, 15, 16, 18, and former § 33, as well as amendments to Article V, §§ 3 and 6, and Article XVII, § 1 (now § 3). These amendments all contained language referring to “intermediate courts of appeal” or similar language. Ch. 10 of the Acts of 1966 did not, however, propose any amendment to Article IV, § 22.

If there was any purpose of authorizing the General Assembly to confer jurisdiction upon an intermediate appellate court to review in banc decisions, it is likely that § 22 would have been amended like all of the other provisions were amended. Ch. 10’s amendment to former Article IV, § 33, is quite significant. In Roth v. House of Refuge, supra, 31 Md. 329 , Judge Alvey for this Court compared the individual Baltimore City courts to the county circuit courts, and he then drew an analogy between the Supreme Bench of Baltimore City and the courts in banc. In holding that an appeal could be taken from one of the Baltimore City courts to the Supreme Bench of Baltimore City in a habeas corpus case, Judge Alvey for the Court stated ( 31 Md. at 332-333 ); “It will be observed that the power given to this court [the Supreme Benchjis large and comprehensive.

If there be any matter of law determined by the judges in the ⁵⁴⁰ several courts, except it be in cases of appeal from justices of the peace, it is liable to be reheard and determined by the Supreme Bench; the great object being to secure uniformity of decision, and greater deliberation of judgment than was practicable in the separate courts, presided over by a single judge. And such being the scope and design of its jurisdiction, the relation of the Supreme Bench to the other courts of the city 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----” Former Article IV, § 33, after setting forth certain powers and duties of the Supreme Bench of Baltimore City, went on to provide for review by the Supreme Bench of certain types of matters arising in the individual Baltimore City courts and further provided a “right of Appeal to the Court of Appeals” from the Supreme Bench’s decisions. The 1966 constitutional amendment authorizing the creation of intermediate appellate courts, Ch. 10 of the Acts of 1966, repealed those parts of former Article IV, § 33, providing for review in the Supreme Bench with a further right of appeal to the Court of Appeals. The 1966 constitutional amendment did not, however, change Article TV, § 22, which this Court had deemed an analogous provision for the several counties. 10 This confirms the view that the constitutional authorization for the Court of Special Appeals was not intended to affect the jurisdiction conferred on in banc courts and the Court of Appeals pursuant to § 22.

Following the adoption of Article IV, § 14A, in 1966, there have been several amendments to various sections of Article IV of the Constitution which have expressly taken into account the creation of an intermediate appellate court or have speeifi ⁵⁴¹ eally mentioned the Court of Special Appeals. Those amended sections of Article IV include §§ 4A, 4B, 5, and 18. Nevertheless, none of these constitutional amendments modified Article IV, § 22, or authorized the General Assembly to provide for an appeal from a court in banc to an intermediate appellate court or to the Court of Special Appeals. As mentioned earlier in this opinion, the only change in the wording of Article IV, § 22, from its adoption in 1867 to the present time, occurred in 1978.

The first clause of the last sentence in § 22, when adopted in 1867, read as follows: “The right of having questions reserved shall not, however, apply to trials of Appeals from judgments of Justices of the Peace.... ” The offices of Justice of the Peace, along with certain other trial courts of limited jurisdiction, were abolished by a constitutional amendment effective on the first Monday of July 1971. See Ch. 789 of the Acts of 1969, ratified by the voters in November 1970. The same constitutional amendment created the District Court of Maryland which took the place of Justice of Peace courts and the other courts of limited jurisdiction which had been abolished. The 1970 constitutional amendment, however, did not amend Article IV, § 22, by substituting the phrase “District Court” for “Justices of the Peace” in the exclusionary language of § 22’s final sentence. 11 Consequently, it was certainly arguable that, between July 1971 and 1978, an in banc court could exercise appellate jurisdiction over a circuit court judgment on appeal from the District Court.

This oversight by the draftsman of the 1970 constitutional amendment was corrected by Ch. 681 of the Acts of 1977, ratified by the voters in November 1978. The 1978 constitutional amendment deleted the phrase “Justices of the Peace” and substituted the phrase “the District ⁵⁴² Court” in the last sentence of Article IV, § 22. Consequently, the 1978 constitutional amendment was designed to, and did, make Article IV, § 22, reflect the current Maryland judicial system. Most significantly, however, the 1978 constitutional amendment did not substitute “intermediate appellate court” or “Court of Special Appeals” for the words “Court of Appeals” in Article IV, § 22.

By 1978, appeals in most types of circuit court cases were taken directly to the Court of Special Appeals, with the Court of Appeals’ appellate jurisdiction being upon writ of certiorari. Article IV, § 22, was not changed to reflect this practice. Instead, further appellate review of in banc decisions was left exclusively with the Court of Appeals. The legislative history of the 1978 constitutional amendment strongly suggests that the refusal to change the “Court of Appeals” language in Article IV, § 22, was deliberate.

The bill which became the 1978 Constitutional Amendment was House Bill 463 of the 1977 legislative session. See Ch. 681 of the Acts of 1977. The bill was the product of the House of Delegates’ Constitutional and Administrative Law Committee, which began work on the bill during the summer of 1976. The Department of Legislative Reference’s file on the bill contains substantial correspondence between the Committee and William H. Adkins, II, occurring from the summer of 1976 through January 1977, and concerning several proposed changes to Article IV of the Constitution.

Mr. Adkins was the State Court Administrator throughout this period. 12 Among the correspondence in the Department of Legislative Reference’s bill file, on the bill which became the 1978 constitutional amendment, was a January 1977 memorandum to the Committee from Administrator Adkins. In that memorandum, Mr. Adkins stated that he had reviewed the proposed constitution: al amendment “attached to the Report of the Constitutional and Administrative Law Committee,” and that he had “one specific question which relates to Art. IV, § 22.” Administra ⁵⁴³ tor Adkins pointed out that writs of error had been abolished and that, under Title 12 of the Courts and Judicial Proceedings Article of the Code, most direct appeals from the circuit courts were taken to the Court of Special Appeals. The Administrator recommended striking out the language “appeal, or writ of error to the Court of Appeals” in § 22 and substituting “appeal to the Court of Special Appeals.” While recognizing that his proposal was “in some ways a substantive