Bryan v. State Roads Commission

ELDRIDGE, Judge. We granted a petition for a writ of certiorari in this case to decide whether landowners are constitutionally entitled to twelve person juries in Maryland condemnation proceedings. We shall hold that a landowner is entitled to a six person jury and not a twelve person jury in a condemnation proceeding, based on the 1992 amendment to Article 5 of the Maryland Declaration of Rights, which entitles a party in a civil proceeding to a jury of at least six persons, and based on the statutory provision implementing the 1992 constitutional amendment, Ch. 85 of the Acts of 1992, codified as Maryland Code (1974, 1998 Repl.Vol.), § 8-306 of the Courts and Judicial Proceedings Article, which specifies that a jury in a civil action shall consist of six persons. I. The State Roads Commission of the State Highway Administration, which is part of the Maryland Department of Transportation, filed in the Circuit Court for Montgomery County a “quick take” petition, and later a formal condemnation petition, to condemn part of the property of Wesley A. Bryan and ⁶ Wona C. Bryan.

The Bryans’ property was needed in order to widen New Hampshire Avenue in Montgomery County. The trial began on July 15, 1996. The Bryans requested that a twelve person jury be impaneled, arguing that they were entitled to a twelve person jury under Article III, § 40, of the Maryland Constitution. The circuit court disagreed, holding that in a condemnation case a six member jury was appropriate under Code (1974, 1998 Repl.Vol.), § 8-306 of the Courts and Judicial Proceedings Article.

A trial before a six person jury was held, and an inquisition awarding $12,800 to the Bryans was issued. 1 Unhappy with the amount of damages contained in the inquisition, the Bryans appealed to the Court of Special Appeals. They raised a single issue, arguing that landowners have a constitutional right, under Article III, § 40, of the Maryland Constitution to a twelve person jury in a condemnation case. The Court of Special Appeals rejected this argument and affirmed. Bryan v. State Roads Commission, 115 Md.App. 707 , 694 A.2d 522 (1997).

The Bryans then filed in this Court a petition for a writ of certiorari, again raising the single issue of whether, under Article III, § 40, of the Constitution, landowners are entitled to a twelve person jury in a condemnation proceeding. We granted the petition and issued a writ of certiorari. Bryan v. State Roads Commission, 347 Md. 155 , 699 A.2d 1169 (1997). 2 ⁷ II. The general jury trial guarantees in the Maryland Constitution are contained in Articles 5, 21, and 23 of the Maryland Declaration of Rights.

Article 5 of the Declaration of Rights, prior to the 1992 constitutional amendment, simply provided, in pertinent part, as follows: “That the Inhabitants of Maryland are entitled to the Common Law of England, and the trial by Jury, according to the course of that Law....” By the constitutional amendment ratified by the voters of Maryland in November 1992, the former Article 5, containing the above-quoted language, was re-numbered Article 5(a), although the wording remained the same. The 1992 constitutional amendment added new paragraphs (b) and (c) to Article 5 of the Declaration of Rights, which provide as follows: “(b) The parties to any civil proceeding in which the right to a jury trial is preserved are entitled to a trial by jury of at least 6 jurors. “(c) That notwithstanding the Common Law of England, nothing in this Constitution prohibits trial by jury of less than 12 jurors in any civil proceeding in which the right to a jury trial is preserved.” Article 21 of the Declaration of Rights, relating to criminal cases, states in relevant part as follows: “That in all criminal prosecutions, every man [person] 3 hath a right ... to a speedy trial by an impartial jury, without whose unanimous consent he ought not to be found guilty.” Article 23 of the Declaration of Rights states: “In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction. ⁸ “The right of trial by Jury of all issues of fact in civil proceedings in the several Courts of Law in this State, where the amount in controversy exceeds the sum of $10,-000, shall be inviolably preserved.” The Maryland Constitution also contains specific provisions guaranteeing a right to have a jury determine just compensation in condemnation cases. The earliest and broadest of these is Article III, § 40, of the Constitution, which was first adopted as part of the Constitution of 1851, 4 and has remained the same ever since. It provides: “Section 40.

Eminent domain. “The General Assembly shall enact no Law authorizing private property, to be taken for public use, without just compensation, as agreed upon between the parties, or awarded by a Jury, being first paid or tendered to the party entitled to such compensation.” Article III, § 40B, of the Constitution, specifically relating to highways and so-called “quick take” proceedings, states as follows: “Section 40B. Same—Highways. “The General Assembly shall enact no law authorizing private property to be taken for public use without just compensation, to be agreed upon between the parties or awarded by a jury, being first paid or tendered to the party entitled to such compensation, except that where such property in the judgment of the State Roads Commission is needed by the State for highway purposes, the General Assembly may provide that such property may be taken immediately upon payment therefor to the owner or owners thereof by said State Roads Commission, or into Court, such amount as said State Roads Commission shall estimate to be of the fair value of said property, provided such legislation also requires the payment of any further sum that may subsequently be awarded by a jury.” ⁹ See also the following constitutional provisions: Article III, §§ 40A, 40C, 61(a)(2); Article XI-B, § 1(b); Article XI-C, § 1(b); Article XI-D, § 1(b). The jury trial clause of Article 5 of the Declaration of Rights, from its inception as part of the Constitution of 1776 until the 1992 constitutional amendment, meant “that it is the historical trial by jury, as it existed when the Constitution of the State was first adopted, to which the inhabitants of [the] State are entitled,” Knee v. City Pass. Ry.

Co., 87 Md. 623, 624 , 40 A. 890, 891 (1898). A principal feature of this “historical trial by jury,” to which Marylanders were constitutionally entitled under Article 5, was a twelve person jury, although the right could be waived and the parties by consent could have a jury of less than twelve persons. See, e.g., State v. Kenney, 327 Md. 354, 361 , 609 A.2d 337, 340 (1992) (“Article 5 of the Declaration of Rights does not prohibit a jury of less than 12 persons if the parties agree”); Bouton v. Potomac Edison Co., 288 Md. 305, 309 , 418 A.2d 1168, 1170 (1980) (referring to a common law jury as a “jury of twelve presided over by a judge”); State v. McKay, 280 Md. 558, 568 , 375 A.2d 228, 233 (1977) (“one of [the jury’s] traditional elements [is] the 12-man jury”). 5 At common law, there was no right to a jury trial in condemnation cases. Furthermore, prior to 1851, there was no Maryland constitutional guarantee of a jury trial in condemnation cases, although pre-1851 statutes often provided for jury trials in such cases.

The constitutional right to a jury trial in civil cases “according to the course” of the common law, provided for in the first sentence of Article 5 and in Article 23 of the Declaration of Rights, had no application to condemnation proceedings. Judge Cole for this Court sum- ¹⁰ marized the general law in Bouton v. Potomac Edison Co., supra, 288 Md. at 309 , 418 A.2d at 1170 , as follows: “At common law there was no right to an ordinary jury trial in condemnation cases, even on the issue of damages. 1 Nichols’ The Law of Eminent Domain § 4.104[1] (rev.3d ed.1973). Condemnation proceedings were not ordinary suits at law. Rather, they were special proceedings, lacking the characteristics of ordinary trials, brought pursuant to the power of eminent domain, a power derived from the sovereignty of the state.

See Lore v. Board of Public Works, 277 Md. 356 , 354 A.2d 812 (1976); Ridings v. State Roads Commission, 249 Md. 395, 399 , 240 A.2d 236 (1968); 1 Nichols’, supra at §§ 1.1—1.3; See generally J. Ghingher, Jr. and J. Ghingher, III, A Contemporary Appraisal of Condemnation in Maryland, 30 Md. L.Rev. 301, 322 (1970). It was often the practice to refer questions of damages to a commission of viewers or appraisers, usually three or five in number. “For these reasons Article 23 of the Maryland Declaration of Rights which preserves the common law right to a jury trial in civil proceedings does not include condemnation cases which are special proceedings. Thus, absent specific constitutional or statutory provisions mandating a jury trial, the issues in a condemnation case should be tried by the Court.” See Baltimore Belt Railroad Co. v. Baltzell, 75 Md. 94, 106-108 , 23 A. 74 (1891) (no constitutional requirement of a “common law jury” in condemnation cases). As previously discussed, the Maryland constitutional right to have a jury determine just compensation when private property is taken for public use originated with the Constitution of 1851, which contained what is now Article III, § 40.

Section 40 requires that, whenever private property is taken for public use, there must be paid “just compensation, as agreed between the parties, or awarded by a Jury....” ¹¹ The leading case dealing with the jury trial guarantee of Article III, § 40, is Baltimore Belt Railroad Co. v. Baltzell, supra, 75 Md. 94 , 23 A. 74 . Baltzell involved a challenge on several constitutional grounds to a statute enacted by the General Assembly which authorized the condemnation of private real estate for the purpose of constructing a railroad. The statute provided that, if the parties could not agree upon the amount of