Parrott v. State

PER CURIAM. ORDER For reasons to be stated in an opinion later to be filed, a majority of the Court concurring, it is this 10th day of July, 1984 ⁴¹³ ORDERED, by the Court of Appeals of Maryland, that the State’s motion to dismiss the appeal is granted, and the appeal is hereby dismissed with costs; and it is further ORDERED that the mandate shall issue forthwith. RODOWSKY, Judge. Appellant sought immediate review of an interlocutory order of removal which was entered, in literal compliance with Maryland Constitution, art.

IV, § 8, at the suggestion of the State as one of the parties to a capital murder prosecution. 1 This order is not appealable prior to final judgment because it is not within the collateral order doctrine. A grand jury in Prince George’s County indicted appellant, Robert Parrott (Parrott), for murder and other offenses. The State served notice that it was seeking the death penalty. Thereafter the prosecutor filed a suggestion of removal pursuant to art.

IV, § 8. Parrott opposed removal but the Circuit Court for Prince George’s County ordered the case to be transferred to the Circuit Court for Calvert County. That same day Parrott noted an appeal to the Court of Special Appeals from the order of removal. We issued the writ of certiorari prior to consideration of the matter by the intermediate appellate court.

After the State moved in this Court to dismiss the appeal we heard arguments limited to the appealability issue. We dismissed Parrott’s appeal by a per curiam order. This opinion records our reasons for that dismissal. ⁴¹⁴ Parrott took the position that an interlocutory appeal lies in this case for either of two reasons. First, Maryland cases view certain removal orders as within a class of orders which grant or deny an absolute constitutional right and are on that ground immediately appealable.

Secondly, the issue in this case meets the collateral order exception to the final judgment rule. The State recognized that its position of nonappealability conflicts with certain earlier cases. The State submitted, however, that later decisions which look to the collateral order doctrine had eroded the constitutional right approach to appealability and that the subject appeal fails the collateral order test. The fundamental problem presented here is that our decisions have used at least two different analyses to determine the appealability of interlocutory orders.

Where the order appealed from involved an art. IV absolute right to a removal and the particular issue presented did not involve any trial court discretion, we have said the aggrieved party could appeal immediately. In appeals noted from interlocutory orders implicating some other constitutional rights, this Court has determined appealability by referring to the collateral order doctrine, either exclusively or in conjunction with a constitutional right analysis where the two approaches produced the same result. Here the results conflict.

As we did when faced with a similar conflict in Stewart v. State, 282 Md. 557 , 386 A.2d 1206 (1978), we applied the collateral order doctrine in dismissing Parrott’s appeal. To explain more fully the problem and its solution requires a review of two lines of cases. The first line of cases treats appeals in Maryland from orders dealing with removal, a subclass of appeals involving rulings on constitutional rights. In Wright v. Hamner, 5 Md. 370 (1854), this Court entertained an immediate appeal taken from a removal by the party who had opposed granting it for lack of a timely request.

The opinion went directly to the merits without any discussion of appealabili ⁴¹⁵ ty. The fact that this Court had not questioned appealability in Wright was referred to in Griffin v. Leslie, 20 Md. 15, 18-19 (1863), in which we allowed an appeal by the party seeking removal from the trial court’s refusal to do so. There we said that [a]n order of the court overruling the application [for removal], is unlike ordinary rulings on motions, such as motions for a new trial and other motions addressed to the discretion of the court, from which there is no appeal; and unlike rulings in demurrers and other interlocutory judgments, where no appeal lies until final judgment; but the refusal of the application for removal does finally settle a constitutional right of the party, the exercise of which, when demanded, is essential to the impartial administration of justice and should not be withheld or postponed. [Id. at 19.] An appeal in a civil case by the party who had unsuccessfully sought removal was also entertained, without discussion of appealability, in Price v. Nesbitt, 29 Md. 263 (1868). Article IV, § 8 was amended in 1875 as to criminal prosecutions.

The amended provision limited the absolute right of removal to capital cases. In other criminal cases there had to be a showing satisfactory to the trial court that prejudice in fact existed before removal would be granted. McMillan v. Stale, 68 Md. 307 , 12 A. 8 (1888) was a capital case which arose under amended art. IV, § 8.

Just before the twelfth juror had been accepted and sworn for the trial of a criminal case, the State’s Attorney filed a suggestion of removal which was granted, and the accused sought immediate appellate review. This Court affirmed after specifically addressing appealability by saying: An order removing or refusing to remove a cause, civil or criminal, to another court for trial, finally adjudicates a constitutional right of the party affected by the order. And it is regarded as a judgment from which, according to the nature of the case, an appeal or writ of error may be immediately prosecuted. Wright v. Hamner, 5 Md., ⁴¹⁶ 375; ...

Griffin v. Leslie, 20 Md., 15 . [Id. at 308, 12 A. at 8 .] The fact that, after 1875, removal in noncapital criminal cases rested in the discretion of the trial court and was no longer an absolute right was relied upon for the- holding in Tidewater Portland Cement Co. v. State, 122 Md. 96, 98-99 , 89 A. 327, 328 (1913) that a denial of removal in a misdemeanor prosecution was not immediately appealable. Similarly, we have held that an interlocutory appeal does not lie from that portion of a removal order selecting the court to which a capital case is transferred pursuant to art. IV, § 8, because the removing court exercises discretion in that selection. See Lee v. State, 161 Md. 430, 433-34 , 157 A. 723, 724 (1931).

The 1875 amendment had not affected the right of each side in a civil case to obtain one removal simply by filing a suggestion of prejudice. Removal was not extinguished as an absolute right in civil cases until that aspect of removal had been held in Davidson v. Miller, 276 Md. 54, 82 , 344 A.2d 422, 439 (1975) to violate federal equal protection and until Perkins v. Eskridge, 278 Md. 619, 653 , 366 A.2d 21, 41 (1976) in turn invalidated legislation designed to cure the unconstitutional disparity. A 1980 amendment deleted from art. IV, § 8 the language on which the absolute right of removal in civil cases, as earlier recognized, had been based.

Perkins, supra, came to this Court in 1976 as an immediate appeal from the denial of a motion by plaintiffs in a civil case to rescind an order which had granted the defendant’s request for removal. The defendant sought dismissal for lack of an appealable order. We rejected that contention saying “that this case falls within our tenet that the alleged denial of a party’s constitutional right of removal may be appealed immediately.” 278 Md. at 623 n. 4, 366 A.2d at 25 n. 4. In support of that proposition we cited Smith v. Fredericktown Bank, 258 Md. 141, 142 , 265 A.2d 236, 237 (1970) (immediate appeal from denial of removal allowed to party seeking removal because the appeal “involves the ⁴¹⁷ alleged denial of an absolute constitutional right”); Greenberg v. Dunn, 245 Md. 651, 653 , 227 A.2d 242, 243 (1967) (immediate appeal allowed to party opposing removal which trial court had granted in nonjury civil case); State ex rel.

Dunnigan v. Cobourn, 169 Md. 110, 113 , 179 A. 512, 513 (1935) (direct appeal lies from an order remanding removed civil case to the removing court); McMillan v. State, supra; and Griffin v. Leslie, supra. In addition to the holdings cited in Perkins, supra, dictum to the same effect appears in Elliott v. Larrimore, 203 Md. 526, 528 , 101 A.2d 817, 818-19 (1954) and in Heslop v. State, 202 Md. 123, 126 , 95 A.2d 880, 881 (1953). Immediate appealability on a constitutional rights analysis has not been limited to interlocutory orders involving removal on a suggestion of prejudice. This Court has articulated the rule more broadly and has said “that an appeal lies from any order which settles a constitutional right.” Condon v. Gore, 89 Md. 230, 234 , 42 A. 900, 902 (1899).

An amendment to former § 39 of art. IV, Md. Const., had provided for the waiver of a jury trial in civil cases in Baltimore City if the jury mode of trial was not affirmatively elected within time limits to be fixed by rules adopted by the then Supreme Bench of Baltimore City. A defendant unsuccessfully sought to have a civil case transferred to the nonjury docket because of the plaintiffs claimed failure to comply with the Supreme Bench rule. On an immediate appeal this Court addressed the merits “because under the Constitution as now amended the right of the appellant to try his case in Baltimore City before the Court, unless a jury trial has been prayed in conformity to the Rule ..., is a constitutional right” and the order appealed from had “settle[d]” that constitutional right.

Id. Two removal cases, Griffin v. Leslie and Wright v. Hamner, both supra, were cited in support. It is immediately apparent that the broad statement of a rule for determining appealability of interlocutory orders which is found in Condon v. Gore, supra, cannot and has not been literally honored. To treat every judicial ruling ⁴¹⁸ which is made before the entry of final judgment and which determines a claimed constitutional right as an appealable order would create piecemeal appeals in unmanageable numbers.

Condon was decided before the advent of the exclusionary rule, and to follow its test for appealability would mean that most pretrial rulings in criminal cases would be immediately reviewable as of right. This is not the law. See DiBella v. United States, 369 U.S. 121, 131-32 , 82 S.Ct. 654, 660-61 , 7 L.Ed.2d 614, 621-22 (1962); Cook v. State, 281 Md. 665, 670 , 381 A.2d 671, 674 (1978). Further, using adjudication of a claimed constitutional right to determine immediate appealability of interlocutory orders not only involves the usual line drawing in classifying the rulings and rights which are or are not within such an exception to the final judgment rule, but that use has also led to seemingly inconsistent applications within the same constitutional right.

Cases involving the right to a jury trial are illustrative. Based upon Condon’s holding that the right to a nonjury trial under former art. IV, § 39 gave rise to an immediate appeal at the instance of the party opposing a jury trial, one could well expect that a party complaining of a refusal to allow a requested jury trial would be heard on the merits of an interlocutory appeal. But in Ex parte Johnson, 215 Md. 391 , 138 A.2d 347 (1958) this Court dismissed the appeal from an order refusing appellant’s request for a jury trial on the issue of his competency in an equity proceeding for the appointment of a committee for his person and property.

Condon was not cited. The apparent conflict between these two opinions was noted in Kawamura v. State, 299 Md. 276 , 282 n. 5, 473 A.2d 438 , 442 n. 5 (1984). In that footnote we also commented as follows: Subsequent to those cases, this Court adopted the so-called “collateral order doctrine,” permitting appeals from certain interlocutory decisions which conclusively determine an important question, are separate from the merits of the case, and are effectively unreviewable on appeal from a final judgment. See Mann v. State’s Atty. ⁴¹⁹ for Montgomery County, 298 Md. 160, 164-165 , 468 A.2d 124 (1983); Sigma Reproductive Health Center v. State, 297 Md. 660, 666-671 , 467 A.2d 483 (1983); Clark v. Elza, 286 Md. 208, 212-213 , 406 A.2d 922 (1979); Peat & Co. v. Los Angeles Rams, 284 Md. 86, 91-97 , 394 A.2d 801 , 5 A.L.R.4th 1238 (1978); Stewart v. State, 282 Md. 557, 571 , 386 A.2d 1206 (1978); Jolley v. State, 282 Md. 353, 357 , 384 A.2d 91 (1978).

The District Court [of Maryland] rulings in this case might well have been appealable under the collateral order doctrine. [Id. at 282 n. 5, 473 A.2d at 442 n. 5.] The other line of cases deals with the collateral order doctrine. It had its origin in Cohen v. Beneficial Loan Corp., 337 U.S. 541 , 69 S.Ct. 1221 , 93 L.Ed. 1528 (1949), holding that a trial court’s ruling on the defendant’s entitlement to security for court costs in a stockholder’s derivative suit was immediately appealable. The requirements for applying the collateral order doctrine are sometimes expressed as involving three factors, as we did in Kawamura, supra. At other times the requirements are grouped around four loose headings, as in the discussion of Cohen found in 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure: Jurisdiction § 3911, at 470-71 (1976 & Supp.1983).

Those authors state: First, the matter to be reviewed must have been finally disposed of by the [trial] court, so that its decision is not “tentative, informal or incomplete.” ... Second, the matter to be reviewed must be “separable from, and collateral to, rights asserted in the action.” ... Third, there must be a risk of important loss if present review is not available.... Finally, the [Cohen ] Court stated that not every question affecting security would be appealable, and noted that the present case involved “a serious and unsettled question.” It clearly distinguished cases involving an exercise of discretion in fixing the amount of security on the basis of an “admitted or clear” right to security in some amount. ⁴²⁰ Six months after Cohen was decided this Court handed down Harris v. State, 194 Md. 288 , 71 A.2d 36 (1950), in which an accused appealed from the denial of his motion to dismiss the indictment for alleged failure to accord him a speedy trial.

We