Firstman v. Atlantic Construction & Supply Co.

Orth, C. J., delivered the opinion of the Court. REMOVAL OF ACTIONS AT LAW Constitutional Provisions and Rules of Procedure The “Judiciary Department” of this State is as authorized by article IV of the Constitution of Maryland. Section 19 of the article divides the State into eight Judicial Circuits. From two to five counties comprise each of the first seven Circuits, and Baltimore City constitutes the eighth.

Section 1 of the article vests the “Judicial power” of the State in ²⁸⁷ certain enumerated courts, including “Circuit Courts” and “such Courts for the City of Baltimore, as are hereinafter provided for.” Section 20 provides for a Circuit Court for each county, “to be styled the Circuit Court for the County, in which it may be held”, with jurisdiction over law and equity actions and criminal causes. Section 27 provides for the Courts of the City of Baltimore: “There shall be in the Eighth Judicial Circuit, six Courts, to be styled the Supreme Bench of Baltimore City, the Superior Court of Baltimore City, the Court of Common Pleas, the Baltimore City Court, The Circuit Court of Baltimore City and the Criminal Court of Baltimore.” The jurisdiction of these Courts is set out in § 28: “The Superior Court of Baltimore City, the Court of Common Pleas, and the Baltimore City Court shall, each, have concurrent jurisdiction in all civil common law cases, and concurrently, all the jurisdiction which the Superior Court of Baltimore City and the Court of Common Pleas now have, . . .” with designated exceptions which do not derogate from their general jurisdiction over actions at law. In article 20 of the Declaration of Rights of the Constitution of Maryland the People of the State declared “That the trial of facts, where they arise, is one of the greatest securities of the lives, liberties and estate of the People.” But the Constitution also recognizes that a party may not be able to have a fair and impartial trial in the court in which a case is pending. With respect to an action at law, article IV, § 8 provides that it will be “. . . transmitted to some other Court having jurisdiction in such case for trial. . .”, “. . . upon suggestion in writing under oath of either of the parties to said proceedings that such party cannot have a fair and impartial trial in the court in which the same may be pending....” Thus, a party in a law action, upon suggestion properly made, had one absolute right of removal to another court having jurisdiction.

The right may be subject to reasonable procedural restraint to promote the administration of justice. Dillon v. White’s Ferry, Inc., 268 Md. 118 (1973); Shreffler v. Morris, 262 Md. 161 (1971). Maryland Rule 542 implements the constitutional provisions and sets out the procedural regulations governing the right ²⁸⁸ of removal. Bullock v. State, 230 Md. 280 (1962).

Among other procedures, it requires, as does the Constitution, that the suggestion for removal be in writing under oath of either of the parties to the action. It also specifies that the suggestion may not be of counsel. Rule 542, § a 1. Section 3 of the Rule provides that the right of removal is waived unless the written suggestion is filed within 60 days after the action is at issue.

See Caledonian Fire Ins. Co. v. Traub, 86 Md. 86 (1897). Thereafter, an action may be removed only by order of court for good cause shown. Section 1 of Amendment XIV to the Constitution of the United States prohibits a state from denying to any person within its jurisdiction the equal protection of the laws.

It was the interplay of these constitutional provisions which provided the basis on which the Court of Appeals, in Davidson v. Miller, 276 Md. 54 (1975), held that the provisions of article IV, § 8, pertaining to removal of civil actions at law violates the equal protection clause of the Fourteenth Amendment to the Constitution of the United States, and, therefore, was unenforceable “so long as the present multiple civil common law court system exists in Baltimore City.” 276 Md. at 82 . Judicial Construction It was early decided by the Court of Appeals, 1 steadfastly followed, 2 and recently affirmed, 3 4that the transfer of an action at law from one of the law courts of the Supreme Bench of Baltimore City to another of the law courts of the Supreme Bench of Baltimore City “gratifies the constitutional provision of a removal to some other court having jurisdiction.” 4 Johnson v. State, 258 Md. 597 , 600-603 ²⁸⁹ (1970) declared that a case is removed, not to be heard before another judge, but to be tried in a different locality, to rid the trial of the influence of such community or local bias or prejudice as would manifest itself in the locality in which the case originated. 5 *** The appellants in Middleton v. Morgan, 263 Md. 154, 156 (1971) relied upon this in contending that the Baltimore City practice of “a removal from one court in Baltimore to another does not gratify the purpose and desired effect of the constitutional provision.” They recognized that the rule of law then existing was flatly against their contention, but they strongly urged “that the case should be distinguished because in 1882 each court in Baltimore drew its own panel of jurors and in 1971, although each court has its own panel, all the jurors are treated as a pool and may sit from time to time in any court.” Id., at 156 . The Court was not persuaded. It said, at 158: “It is clear that the basis of decision in Weis kittle was not that each court in the City drew its own panel of jurors (this being no more than a passing observation), but that each court in the City was a distinct and separate court within a circuit and since the Constitution does not require a removal to be to a court without the circuit, a removal within the City gratified the constitutional right of removal....

In 1971 as in 1882 Baltimore City is still a circuit and the various courts within that circuit are still separate and distinct. We find Weiskittle to be controlling.” The petitioners 6 in Davidson made substantially the same ²⁹⁰ claim, but presented it in a different posture. Whereas Middleton had simply affirmed the position of the Court of Appeals that the transfer of an action at law from one Baltimore City law court to another satisfied the removal provisions of the Constitution of Maryland, the petitioners in Davidson contended, not that such practice violated the Maryland Constitution, but that it denied them the equal protection of the laws guaranteed by the Constitution of the United States. Reassessing its view of article IV, § 8, in this light, a majority of the Court of Appeals 7 **⁷ concluded that equal protection of the laws was indeed denied when, as to Baltimore City, the absolute right of removal permitted an action at law to be removed from one law court to another within the City, while, as to each county, the transfer of such action was from one county to another county.

The Court held, therefore, that “the portion of Article IV, section 8, which reads ‘and in all suits or actions at law, issues from the orphans’ court, or from any court sitting in equity’ and the other language relating to this ... [as well as the language in Rule 542 relating thereto] is unenforceable so long as the present multiple civil common law court system exists in Baltimore City.” 8 276 Md. at 82 . The effect of the holding was, in the words of Chief Judge Murphy in his dissent, “to excise all those provisions from § 8 of Art. IV of the Constitution of Maryland which afford litigants in civil law cases an automatic right of removal to another court ²⁹¹ upon mere suggestion in writing, under oath, that a fair and impartial trial cannot otherwise be obtained. . . .” THE INSTANT CASE Facts On 5 September 1974 Atlantic Construction & Supply Company (Atlantic) instituted an action ex contractu in the Circuit Court for Talbot County against John Gordon First-man and Joyce Firstman, his wife, (the Firstmans) by the filing of a declaration. On 14 October the Firstmans pleaded the general issue and further answered, averring that they did all things required of them under the contract but that it had been breached by Atlantic. Appended to the answer was a counterclaim to which Atlantic pleaded the general issue on 25 October 1974.

Atlantic attempted three times to have the action removed. The first two times the suggestion was improper in form. 9 The third Suggestion for Removal was filed on 24 December 1974, and the same day the court ordered the action removed to the Circuit Court for Caroline County for trial. On 26 December the Firstmans moved that the Suggestion for Removal not be received because it was filed too late. On 30 December they moved to strike the order of 24 December, giving for reasons that the Suggestion for Removal was not timely filed and that the order was entered without allowing them time to respond thereto.

On 23 January 1975 the court found upon hearing that the Suggestion for Removal had been timely filed. 10 It denied the Motion to Strike and affirmed its order of 24 December 1974 removing the cause to the Circuit Court for Caroline County for trial. The Firstmans noted an appeal from the order of 23 January 1975 denying their Motion to Strike. ²⁹² The Status of the Appeal On 21 April 1975, this Court, upon its own motion, dismissed the appeal as prematurely taken. On 2 May the Firstmans moved that we reconsider and rescind our order of dismissal. Upon reconsideration, we concluded that we erred in dismissing the appeal, and on 13 May we rescinded our order.

We explain why we did so. Ordinarily, a party may appeal from a final judgment entered in a civil case by a circuit court, Courts Art. § 12-301, which includes the various Supreme Bench courts, Courts Art. § 12-101 (d). The Court of Appeals said flatly in Dunnigan v. Cobourn, 169 Md. 110, 113 (1935): “The right of removal is conferred by article 4, section 8, of the Constitution of Maryland, and its denial or abridgement is ground for direct appeal. Griffin v. Leslie, 20 Md. 15, 19, 20 ; Negro Jerry v. Townshend, 2 Md. 274, 277 ; Wright v. Hammer, 5 Md. 370, 375 ; Kimball v. Harman, 34 Md. 401, 407 ; McMillan v. State, 68 Md. 307, 308, 309 , 12 A. 8 ; Seth v. Chamberlaine, 41 Md. 186, 195 ; Gittings v. State, 33 Md. 458, 462 ; Condon v. Gore, 89 Md. 230, 234 , 42 A. 900 ; Tidewater Portland Cement Co. v. State, 122 Md. 96, 99 , 89 A. 327 .” In Greenberg v. Dunn, 245 Md. 651 (1967), a non-jury action at law was removed at the instance of the plaintiff from the Superior Court of Baltimore City to the Circuit Court for Carroll County.

The defendant’s motion for recision of the order was denied and the defendant appealed. The Court observed, at 653: “The sole issue to be decided is whether the court had the power of removal under the circumstances. The appellee originally sought to dismiss the appeal on the ground that the order appealed from was interlocutory but now concedes that it was final and appealable under Dunnigan v. Cobourn, 169 Md. 110, 113 ; McMillan v. State, 68 Md. 307, 308 ; Elliott v. Larrimore, 203 Md. 526, 528 .” ²⁹³ The power of a court to remove an action is to be distinguished from the discretion of a court exercised in determining to which court a case shall be removed. The latter is an interlocutory action and will be reviewed only after final judgment.

Middleton v. Morgan, supra, at 158-159. Here, the issue was whether the court below had the power to grant Atlantic an automatic removal in the circumstances. The court’s action thereon is ground for direct appeal. The Propriety of the Suggestion for Removal It is manifest that at the time of the order of 24 December 1974 removing the action from Talbot County to Caroline County for trial, Atlantic was entitled to the removal as a matter of right if there was compliance with the procedural regulations.

The only question with regard to such regulations was whether Atlantic waived its absolute right of removal by failing to file a suggestion within 60 days after the action was at issue as required by Rule 542, § a 3. The suggestion was not filed within 60 days of the date of the filing of the plea by the Firstmans to the declaration. It was filed on the sixtieth day from the filing of the answer by Atlantic to the counterclaim. We think that the action here was at issue within the contemplation of Rule 542, § a 3, on 25 October 1974 when the answer to the Firstman’s counterclaim was filed by Atlantic, and not on 14 October 1974, when the answer to Atlantic’s declaration was filed by the Firstmans.

In Warchall v. Murphy, 23 Md. App. 424, 429 (1974), we found that “it necessarily follows to obtain the patent objective of Rule 542, § a 3, that a responsive pleading which brings an action to issue is a plea, responding to an original pleading, which is filed with the object of bringing the action to factual issue or to trial, that is, a plea going to the merits — a plea in bar.” 11 We think that here it was the ²⁹⁴ answer to the counterclaim which was the plea going to the merits which brought the action to factual issue, that is, the filing of that plea put the case in the posture of being ready for trial. See generally Elliott v. Larrimore, 203 Md. 526 (1954). As the suggestion was filed within 60 days from the filing of this plea, there was no waiver of the right of removal. See Rule 8.

Therefore, Atlantic was entitled, under the status of the law on 24 December 1974, to an absolute right of removal. The Effect of Davidson v. Miller, supra. Our conclusion that the action of the court below, in ordering the case removed for trial, and in denying a motion to rescind its order so doing, was proper under the law in effect on 24 December 1974, is not dispositive of this appeal. Pending the appeal, the law changed.

The action of the court below was predicated upon the absolute right of Atlantic to have the cause removed as prescribed by the Constitution of Maryland. The constitutional provisions requiring the action taken by the court below are no longer enforceable by the dictate of Davidson v. Miller, supra, which, as we have indicated, declared that the constitutional provision as to absolute right of removal was unenforceable “so long as the present multiple civil common law court system exists in Baltimore City.” We take judicial knowledge that it still exists. The question is, then, what effect does the Davidson