Bryan v. STATE ROADS COMMISSION OF STATE HIGHWAY ADMINISTRATION

SALMON, Judge. The two arguments presented by appellants present issues that have not previously been addressed by any reported Maryland decision. The arguments are: 1) that under Article III, section 40 of the Maryland Constitution, a property owner has a constitutional right to a twelve-person jury in a condemnation proceeding; and 2) if we assume, arguendo, that it would be constitutionally permissible for the General ⁷⁰⁹ Assembly to pass a statute allowing a jury of less than twelve to decide condemnation cases, section 8-306 of the Courts and Judicial Proceedings Article of the Maryland Code Annotated (1995 Repl.Vol.), which allows a six-person jury in civil actions, does not apply to a condemnation proceeding because a condemnation proceeding is not a “civil action.” We hold that Article III, section 40, of the Maryland Constitution does not require a twelve-person jury in an eminent domain case. We also hold that a condemnation proceeding is a “civil action” within the meaning of section 8-306.

FACTS On July 1, 1994, the State Roads Commission of the State Highway Commission, appellee, filed a quick-take petition 1 in the Circuit Court for Montgomery County to take possession of property owned by Wesley and Wona Bryan, appellants. The land was needed for the widening of New Hampshire Avenue. A formal Condemnation Petition was filed by the State on February 23, 1995, in which the State sought to take a 1,866 square foot strip of appellants’ land in fee simple, together with another 653 square feet for a revertible easement during the construction period. Trial commenced on July 15, 1996.

Counsel for the appellants, during voir dire, notified the trial judge (Chapin, J.) that appellants took the position that they were entitled to a ⁷¹⁰ twelve-person jury. The trial judge disagreed, citing section 8-306 of the Courts and Judicial Proceedings Article, which states: “In a civil action in which a jury trial is permitted, the jury shall consist of 6 jurors.” Prior to the jury being sworn, the trial judge asked the parties if they were satisfied with the jury. Appellants’ counsel advised the trial judge that he was dissatisfied due to the fact that the court had rejected his contention that his clients were entitled to a twelve-person jury. A six-person jury awarded appellants $12,800 in damages due to the taking of their land.

Disappointed with the amount of the award, appellants noted this timely appeal. DISCUSSION A. Article III, Section 40 of the Maryland Constitution Article III, section 40, of the Maryland Constitution provides: 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.[ 2 ] Appellants contend that section 40 requires a jury of twelve persons in all eminent domain proceedings. The only support offered by appellants for this contention is language contained in the case of Baltimore Belt Railroad Co. v. Baltzell, 75 Md. 94, 108, 23 A. 74 (1891). When Baltzell was ⁷¹¹ decided, common law juries in most counties sat for only two jury terms per year, each about six months apart.

Id. at 107 , 23 A. 74 . These juries sat for only one term of court and thereafter persons who wanted jury trials had to wait until the next court term. Id. In an apparent attempt to avoid such delays, the Maryland Legislature enacted a statute (Article 23, section 167) that, in certain circumstances, provided for sheriffs juries in condemnation cases.

The statute allowed the owner of property to apply to a justice of the peace to issue a warrant to the sheriff, requiring him to summons a jury of twenty qualified to act as jurors under the laws of the State, to meet on the premises on a day named in the warrant, and from the panel thus selected, the [condemnor] and the owner, may each strike off four persons and the remaining twelve shall act as “the jury of the inquest of damages.” Id. at 98 , 23 A. 74 . Under the statute then in effect, the sheriffs jury was required to “reduce their inquisition to writing”; the inquisition was then returned by the sheriff to “be confirmed by the court at its next session, unless cause to the contrary be shown.” 3 Id. In Baltzell, the Court was asked to determine whether the Legislature had the power to mandate that compensation was to be determined in a condemnation case by a special jury summoned upon a sheriffs warrant and not by a common law ⁷¹² jury. Id. at 106 , 23 A. 74 .

The court held that the Constitution left to the Legislature to “provide whether such assessment shall be made by a common law jury or by a jury summoned by warrant.... ” In reaching this conclusion, the Court stated: [W]e can hardly suppose framers of the Constitution meant to delay and embarrass the construction of railroads and other public improvements, by requiring compensation to be awarded in court by a common law jury. At least, if such had been the intention ... it is but fair to presume this intention would have been declared in plain and explicit terms. What they did mean, was to provide in the first place that the owner should have the right or privilege of a jury of twelve men in determining what compensation was to be paid, and in the next, that he should not be deprived of his property till such compensation has been paid. And such has been the uniform construction of this clause of the Constitution from the time of its adoption till the present.

Id. at 107-08 , 23 A. 74 (emphasis added). Appellants, relying solely on the emphasized portion of the above quote, contend that Article III, section 40, was “long ago construed to require a jury of twelve persons.” Appellants ignore the fact that the Court of Appeals was not asked in Baltzell to determine the proper number of jurors in a condemnation case. Thus, the Baltzell Court’s statement that a property owner is entitled to a jury of “twelve men” was clearly dictum. Unlike holdings, statements of dicta are remarks “by the way” including any statement of the law enunciated by the court merely by way of “illustration, argument, analogy or suggestion.” Black’s Law Dictionary 541 (4th ed.1968).

As explained by Judge Moylan, writing for this Court in State v. Wilson, 106 Md.App. 24, 36-39 , 664 A.2d 1 (1995), cert. denied, 340 Md. 502 , 667 A.2d 342 , rev’d on other grounds, U.S.,-U.S.-, 117 S.Ct. 882 , 137 L.Ed.2d 41 (1997): The precedential weight of a holding is predicated in large measure on its status as the deliberate and considered ⁷¹³ judgment of an entire collegiate court, including the opinion writer, on the issue before it that must be decided.... A holding, therefore, has earned the authoritative weight we give it. Well considered dicta, of course, is sometimes very good and, therefore, of significant persuasive weight. That is a far cry, however, from giving persuasive weight to every hurried word that may appear in the course of an opinion. [Sjtare decisis is ill served if readers hang slavishly on every casual or hurried word....

The statement in Baltzell relied upon by appellants is manifestly of the “hurried word” variety. 4 The Court of Appeals has directed inferior courts to “turn to the federal case law for guidance in defining the scope of the right to jury trial in Maryland.” Higgins v. Barnes, 310 Md. 532, 543 , 530 A.2d 724 (1987); Mattingly v. Mattingly, 92 Md.App. 248 , 607 A.2d 575 (1992). In Williams v. Florida, 399 U.S. 78 , 90 S.Ct. 1893 , 26 L.Ed.2d 446 (1970) and Colgrove v. Battin, 413 U.S. 149 , 93 S.Ct. 2448 , 37 L.Ed.2d 522 (1973), the Supreme Court tackled issues similar to the one at hand: Whether a twelve-person jury is required, respectively, under the Sixth and Seventh Amendments. Like Article III, section 40 of the Maryland Constitution, neither the Sixth nor the Seventh Amendments to the United States Constitution, which respectively guarantee the right to a jury trial in criminal cases and most common law civil suits, specify the number of jurors required. 5 In Williams, 399 U.S. at 102 , 90 S.Ct. at ⁷¹⁴ 1907, the Court held that the Sixth Amendment does not require a jury of twelve for a criminal defendant even though at common law a jury consisted of twelve jurors. The Court concluded that the fact that a common law jury was composed of precisely 12 is a historical accident, unnecessary to effect the purposes of the jury system and wholly without significance “except to mystics.” [citation omitted].

To read the Sixth Amendment as forever codifying a feature so incidental to the real purpose of the Amendment is to ascribe a blind formalism to the Framers which would require considerably more evidence than we have been able to discover in the history and language of the Constitution.... In Colgrove, 413 U.S. at 157 , 93 S.Ct. at 2453 , the Court held that the presence of twelve members on a jury is not a “substantive aspect” of the right to trial by jury under the Seventh Amendment. The Court acknowledged that earlier decisions of the Court, such as Capital Traction Co. v. Hof, 174 U.S. 1 , 19 S.Ct. 580 , 43 L.Ed. 873 (1899), made the statement that “ ‘trial by jury’ means ‘a trial by a jury of 12,’ ” but explained that those statements were “clearly dictum and not a decision upon a question presented or litigated.” Colgrove, 413 U.S. at 157 , 93 S.Ct. at 2453 . In Colgrove , the Court also pointed out that “juries of less than 12 were common in this country throughout colonial times.” Id. at n. 12.

Article III, section 40, does not contain language incorporating any of the historical features of juries in condemnation proceedings or indicating that a specific number of jurors is required. Likewise, the Debates and Proceedings of the 1851 Maryland Reform Convention to Revise the State Constitution, at which the current form of Article III, section 40, was first adopted, also provide no evidence of any intent by the ⁷¹⁵ Convention to dictate the number of jurors required in a condemnation proceeding. 2 Debates and Proceedings of the Maryland Reform Convention 766, 784 (1851). We, therefore, conclude that Article III, section 40 of the Maryland Constitution does not require a twelve-person jury in condemnation cases. B. Section 8-306 of the Courts and Judicial Proceedings Article While appellants acknowledge that section 8-306 of the Courts and Judicial Proceedings Article (hereinafter section 3-306) mandates a jury of only six persons “[i]n a civil action in which a jury trial is permitted,” they contend that this section does not apply to eminent domain proceedings because (allegedly) a condemnation proceeding is not a “civil action.” 6 ⁷¹⁶ In Unnamed Physician v. Commission on Medical Discipline of Maryland, 285 Md. 1, 7 , 400 A.2d 396 , cert. denied, 444 U.S. 868 , 100 S.Ct. 142 , 62 L.Ed.2d 92 (1979), the Court of Appeals, in a case of first impression, interpreted the meaning of the term “civil action.” The issue before the Court was whether a proceeding before the Commission on Medical Discipline of Maryland is a civil action within the meaning of Article 43, section 134A (d) of the Maryland Code (1957, 1978 Cum.

Supp.). 7 Id. Section 134A (d) provided that the proceedings and files of a medical review committee are “neither discoverable nor admissible into evidence in any civil action arising out of matters” under review by the medical review committee. 8 Unnamed Physician, 285 Md. at 4 , 400 A.2d 396 . In resolving this issue, the Court employed the definition of ⁷¹⁷ “civil action” set forth by Poe’s Pleading and Practice § 46 (H. Sachs ed., 6th ed.1970) as follows: [a] civil action may be defined to be a proceeding instituted in a court of law for the purpose of obtaining redress for a grievance in the shape of a judgment by the court. “Action” includes all the steps by which a party seeks to enforce any right in a court of law or equity and includes an appeal taken to a court of record from the final decision of an inferior court or administrative body where such appeal is authorized by statute. “Action” does not include a criminal proceeding.... Until defined by the Maryland Rules, the word “action” was inapplicable to suits pending in equity, the definition of the word being limited to those matters pending only before the law courts, [emphasis supplied].

Unnamed Physician, 285 Md. at 8 , 400 A.2d 396 . The Court, after acknowledging that “there are many sources which have attempted to explain the meaning of the term,” quoted Black’s Law Dictionary 311-12 (4th rev. ed.1968), which defines a civil action as: [a]n action wherein an issue is presented for trial formed by averments of complaint and denials of answer or replication to new matter ..., an adversary proceeding for declaration enforcement or protection of a right, or redress, or prevention of a wrong.... Every action other than a criminal action, [citations omitted].[ 9 ] Id. at 7 , 400 A.2d 396 . Using those definitions, the Court in Unnamed Physician held that “as a fundamental principle a civil action is an ⁷¹⁸ adversary proceeding before a court of law; judicial review of the decision of an administrative agency is a civil action; a proceeding before the Commission [on Medical Discipline of Maryland] is not a civil