Remson v. Krausen

HOTTEN, J. On September 25, 2008, appellee, Karen Krausen, f/k/a as Karen Remson, filed a complaint for limited divorce in the Circuit Court for Montgomery County. During the proceedings, the parties signed a consent order enjoining appellant, Alan Sanford Remson, from contacting appellee. A contempt order was subsequently issued when appellant violated the consent order. Appellant thereafter submitted a motion to set aside the contempt order.

During the pendency of that motion, appellant, through new counsel, submitted a motion to withdraw the motion to set aside. Subsequently, the motion to set aside was granted. The motion to withdraw was granted soon thereafter. Appellant, again through new counsel, vigorously attempted to demonstrate that the motion to withdraw was improperly granted.

An in banc panel reviewed the issue and concluded that the circuit court did not abuse its discretion in granting the motion to withdraw. Appellant subsequently filed a motion to alter or amend, or in the alternative, motion to strike the contempt order pursuant to Md. Rule 2-535(b). 1 The in banc panel denied the motion and appellant noted an appeal. 2 For the reasons that follow, we dismiss the pending appeal. ⁵⁷ BACKGROUND On September 6, 2008, the District Court for Montgomery County issued a temporary protective order against appellant. A few weeks later, appellee filed a complaint for a limited divorce. Appellee then filed an emergency motion for injunctive relief, arguing that appellant engaged “in an escalating course of abusive and harassing conduct” that made her fearful.

Additionally, appellee alleged that appellant threatened her “livelihood, peace of mind, and safety.” Appellee, in particular, posited that appellant repeatedly called her despite requests to stop, he was verbally abusive during the phone calls, and he repeatedly sent her email and text messages despite numerous requests to stop. Appellant countered that the injunction was unnecessary because he had no intention of initiating future communication. Moreover, appellant averred that the allegations were untrue and exaggerated. On November 3, 2008, appellant submitted a “NO CONTACT AGREEMENT” (“Agreement”) to the circuit court.

The Agreement stated that appellant would not directly or indirectly contact appellee, and that he would refrain from communicating with mutual friends about her. Thereafter, the Agreement provided: This agreement will be strictly adhered to and if violated, and proof of a violation is forthcoming such as phone records, computer email printouts or a statement from a mutual friend, the attached Order Granting Injunctive Relief shall be entered with the Court and [appellant] shall be liable for a portion of [appellee’s] attorney[’s] fees which correspond to a breach of this Agreement. ⁵⁸ On November 7, 2008, the parties signed a consent order granting injunctive relief. The order provided: Upon consideration of [appellee’s] Motion for Injunctive Relief filed in the above-captioned matter and for good cause shown, it is thereupon this 7 day of November, 2008, by the Circuit Court for Montgomery County, Maryland, ORDERED, that [appellant], is hereby enjoined from contacting [appellee] in any way, either directly or indirectly, including but not limited to, telephoning, emailing, or texting [appellee]; and it is further; ORDERED, that should [appellant] fail to abide by this Order, he shall be liable to [appellee] for all attorney’s fees and costs for the preparation of the Motion for Injunctive Relief and Order and all sanctions necessary to enforce this Order. About thirteen days later, appellee filed a motion for contempt, asserting that appellant had contacted her at work.

Appellant countered that the allegation was untrue. Specifically, he posited that he was driving home from the doctor when the incident was alleged to have occurred. 3 Appellant then noted that he had no intention of violating the injunction because he would lose his security clearance and employment opportunities. After considering the arguments, the circuit court found appellant to be in contempt and sentenced him to thirty days of incarceration. The sentence was suspended, predicated on future compliance and payment of $2500 in attorney’s fees.

On September 17, 2009, appellant submitted a motion to set aside the contempt order, noting that he had complied with the provisions of the injunction since June 28, 2009. Appellee opposed, positing that there was no reason to set aside the order. Not long after, appellant retained new counsel, who submitted a motion to withdraw the motion to set aside. Days later, the motion to set aside the contempt order was granted. ⁵⁹ The motion to withdraw was then granted, thereby vacating the motion to set aside, which in turn, resulted in the continued viability of the contempt order.

On December 3, 2009, through new counsel, appellant submitted a motion to vacate the order granting the withdrawal. In that motion, appellant argued that the motion to withdraw was “inadvertently filed ...” because he and previous counsel “did not effectively communicate----” Appellant then requested that the circuit court exercise its revisory powers and reinstate the order that set aside the contempt order. Appellee opposed, positing that the court entered the order in error. The motion was denied and appellant subsequently filed a motion to alter or amend, reiterating the same arguments.

Again, the circuit court denied the motion. Appellant thereafter requested an in banc panel review to determine whether the circuit court abused its discretion in granting the motion to withdraw. After the in banc panel concluded that the circuit court did not abuse its discretion, appellant filed a “Motion To Reconsider, Alter Or Amend Order Dated July 9, 2010; Or, In The Alternative, Motion To Vacate Contempt Order Entered June 23, 2009 Pursuant To Rule 2-535(b).” Appellant argued that the contempt order should be vacated because injunctive relief was not properly issued. Namely, appellant averred that it was impossible to determine whether the injunction was permanent or temporary; the reasons for granting the injunction were not properly placed on the record; the reasons for the relief were not stated in writing; there was no reference to harm; and no hearing was held.

Appellant then posited that the contempt order should be vacated because there was an “irregularity” in the process of granting the injunction. Appellee opposed, arguing that the in banc panel lacked authority to vacate the contempt order. Appellee also posited that the validity of the injunction was not before the panel. Appellee, nevertheless, averred that the alleged errors must be disregarded because the parties consented to the injunctive relief.

In an order dated October 14, 2010, the in banc panel ⁶⁰ denied appellant’s motion without explanation. Appellant thereafter noted an appeal. DISCUSSION An in banc panel review has been endearingly referred to as “the poor person’s appeal.” Washabaugh v. Washabaugh, 285 Md. 393, 396 , 404 A.2d 1027 (1979) (citing Roth v. The House of Refuge, 31 Md. 329, 333 (1869)) (internal quotations omitted). This moniker stemmed from the sentiment that Article IV, § 22 of the Maryland Constitution was enacted “to offer disappointed litigants an alternative method of review that was faster and less expensive than an appeal to the Court of Appeals, and that avoided the necessity of traveling to Annapolis.” Montgomery County v. McNeece, 311 Md. 194, 201 , 533 A.2d 671 (1987).

Despite the alternative nature of an in banc panel review, its decision “is conclusive, final, and non-appealable by the party who sought the in banc review, and as to that party a reservation of points or questions for consideration by a court in banc is a substitute for an appeal to the Court of Special Appeals.” Id. at 198 , 533 A.2d 671 (citing Buck v. Folkers, 269 Md. 185, 186-87 , 304 A.2d 826 (1973); Bd. of Med. Exam’rs v. Steward, 207 Md. 108, 111-12 , 113 A.2d 426 (1955); Costigin v. Bond, 65 Md. 122 , 3 A. 285 (1886)). Put another way, Article IV, § 22 constitutionally proscribes an appeal from a decision of an in banc panel against the party that brought the review. See State Roads Comm’n v. Smith, 224 Md. 537, 544 , 168 A.2d 705 (1961).

Because the pending appeal stemmed from an in banc panel review that appellant initiated, we instructed him to show cause “why this appeal should not be dismissed as an impermissible appeal from the decision of an in banc panel of the circuit court.” Appellant responded, arguing that the issues on appeal were distinct from those addressed by the in banc panel. Appellant, in particular, averred that the panel considered whether the circuit court abused its discretion in granting a motion to withdraw, whereas the pending appeal concerned whether the circuit court abused its discretion in ⁶¹ denying a motion to vacate, and whether it erred in denying the motion to dissolve the injunction. We recognize that the in banc panel reviewed whether the circuit court abused its discretion in granting the motion to withdraw. However, the record contradicts the position that the circuit court considered appellant’s request to dissolve the injunction and vacate the contempt order.

Each issue was first raised in appellant’s “Motion To Reconsider, Alter Or Amend Order Dated July 9, 2010; Or, In The Alternative, Motion To Vacate Contempt Order Entered June 23, 2009 Pursuant To Rule 2-535(b).” Appellant noted an appeal once that motion was denied. At that point, the issues were never presented to the circuit court. Accordingly, for the reasons that follow, we dismiss the pending appeal. I. “When interpreting constitutional provisions, we generally employ the same rules of construction that are applicable to the construction of statutory language.” Davis v. Slater, 383 Md. 599, 604 , 861 A.2d 78 (2004) (citing Fish Market Nominee Corp. v. G.A.A., Inc., 337 Md. 1, 8 , 650 A.2d 705 (1994); Brown v. Brown, 287 Md. 273, 277 , 412 A.2d 396 (1980); Kadan v. Bd. of Supervisors of Elections of Baltimore County, 273 Md. 406, 414 , 329 A.2d 702 (1974); The New Cent.

Coal Co. v. The George’s Creek Coal & Iron Co., 37 Md. 537 (1873)). One of the cardinal rules of interpretation is that a court should not reach a meaning beyond the Constitution unless the relevant section is ambiguous. Bernstein v. State, 422 Md. 36, 43 (2011); see also Reed v. McKeldin, 207 Md. 553, 560 , 115 A.2d 281 (1955). (“It is a cardinal rule of construction that where the text of a constitutional provision is not ambiguous, the Court, in construing it, is not at liberty to search for its meaning beyond the Constitution itself.”). “Like construing a statute, to ascertain the meaning of a constitutional provision ... we first look to the normal, plain meaning of the language.” Davis, 383 Md. at 604 , 861 A.2d 78 (citing Fish Market, 337 Md. at 8 , 650 A.2d 705 ; ⁶² Luppino v. Gray, 336 Md. 194 , 204 n. 8, 647 A.2d 429 (1994); Rand v. Rand, 280 Md. 508, 511 , 374 A.2d 900 (1977); Baltimore Gas & Elect.

Co. v. Bd. of Comm’rs of Calvert County, 278 Md. 26, 31 , 358 A.2d 241 (1976); Johnson v. State, 360 Md. 250, 265 , 757 A.2d 796 (2000)). When that language is clear and unambiguous, we need not review more than the words of the constitutional provision. Id. at 604-05, 861 A.2d 78 (citing Fish Market, 337 Md. at 8 , 650 A.2d 705 ; Rand, 280 Md. at 511 , 374 A.2d 900 ; Johnson, 360 Md. at 265 , 757 A.2d 796 ). However, we note that our “goal ... is always to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied by a particular provision, be it statutory, constitutional or part of the Rules.” Id. at 605, 861 A.2d 78 (citing Morris v. Prince George’s County, 319 Md. 597, 603-04 , 573 A.2d 1346 (1990) (citing Dept. of the Environment v. Showell, 316 Md. 259, 270 , 558 A.2d 391 (1989); Harford County v. Edgewater P’ship, 316 Md. 389, 397 , 558 A.2d 1219 (1989); Nelson v. State, 315 Md. 62, 66 , 553 A.2d 667 (1989))).

Article IV, § 22 originated at the Constitutional Convention of 1867. See Bienkowski v. Brooks, 386 Md. 516, 531 , 873 A.2d 1122 (2005). There, Delegate Andrew K. Syester expressed that “ ‘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.’ ” Id. at 532 , 873 A.2d 1122 (quoting John J. Connolly, Maryland’s Right of In Banc Review, 51 Md. L.Rev. 434, 452 (1992) (quoting The Hagerstown Mail, August 2, 1867, at 2)). Stated another way, Delegate “ ‘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.’ ” Id.

(quoting Connolly, Maryland’s Right of In Banc Review, at 451 (quoting American & Commercial Advertiser, July 20, 1867, at 4)). Article IV, § 22, in the following form, was adopted at the 1867 Constitutional Convention: ⁶³ 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 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,[ 4 ] 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. Id. at 535-36, 873 A.2d 1122 .

In Costigin, 65 Md. at 123-124 , 3 A. 285 , the Court of Appeals first addressed Article IV, § 22, and articulated: The twenty-second section of the fourth Article of the Constitution gave a new right of appeal. When a trial is conducted by less than the whole 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 ⁶⁴ 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.

It is provided that the motion for a reservation of the point or question decided shall be entered of record during the sitting at which the decision may be made. The word “sitting ” is not synonymous with “term ” of the Court. The exception to a ruling must properly be taken as soon as the ruling is made; but this provision of the Constitution intended to give the party taking an exception the entire sitting of the Court (that is the whole time until the Court adjourned for the day) to determine whether he would have his appeal to the Court in banc, or to the Court of Appeals. It would be a very improvident construction of this section to hold that a party might have the whole term of the Court to make up his mind; and we think it is not warranted by the plain meaning of the words.

Approximately one-hundred years later, the Court of Appeals in Washabaugh, 285 Md. at 397-99 , 404 A.2d 1027 , succinctly summarized Article IV, § 22: If, at a trial conducted by less than all the circuit judges who are regularly authorized to sit in the Maryland judicial circuit where the proceedings are held, a decision on any point or question is rendered against a party, that litigant, when it is constitutionally permitted, may reserve the question or point for “the three Judges of the Circuit,” who “constitute a court in banc.” Md. Const., Art. IV, § 22. This “reservation” must be entered upon the record during the “sitting” of the circuit court at which the questioned decision was made, id., the term “sitting” having been interpreted by this Court as being the day during which the determination is rendered. [Costigin, 65 Md. at 124 , 3 A. 285 ]. (Footnotes omitted). In 2006, the Legislature updated and rewrote Article IV, § 22, see Chapter 421 of the 2006, without substantive change, as follows: ⁶⁵ Where any trial is conducted by less than three 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