Shreffler v. Morris

¹⁶² Singley, J., delivered the opinion of the Court. For the third time, Rule 542 of the Sixth Judicial Circuit, which imposes a limit on the time within which a civil case may be removed, is under fire. We flanked a similar attack in Smith v. Fredericktown Bank & Trust Co., 258 Md. 141 , 265 A. 2d 236 (1970) when we held that the Rule, which became effective on 1 October 1969, was not applicable to a case which had been at issue since 10 June 1969. Thomas H. Quinn, Inc. v. Realty Investment Co., Inc., 261 Md. 308 , 274 A. 2d 352 (1971) which also challenged the validity of the Rule, was disposed of on procedural grounds.

The present case puts the problem squarely before us. In May, 1969, Harold C. Morris and his wife entered a judgment by confession in the Circuit Court for Montgomery County against Robert E. Shreffler and his wife. About a month later, the Shrefflers moved to vacate the judgment. In March, 1970, the judgment by confession was vacated with the Morrises’ consent, and the case was calendared for trial on the merits.

On 25 May 1970, the Shrefflers pleaded the general issue and prayed a jury trial. Some time thereafter, the appearance of counsel for Mrs. Shreffler was stricken, and on 27 November 1970, when the case had been at issue for six months, Mr. Shreffler, through counsel, and Mrs. Shreffler, in proper person, filed a suggestion and affidavit of removal. Relying on the Sixth Circuit’s Rule 542 the trial court denied the suggestion, and Mr. Shreffler has appealed. Sixth Circuit Rule 542 provides: “The right of removal of all actions at law, issues from the Orphans’ Court or from any court sitting in equity or appeals from the Workmen’s Compensation Commission shall be waived by a party unless a written suggestion is filed within 45 days after such cause is at issue or when any such issue or appeal is filed, or within 45 days of the docketing of any such cause being .removed ¹⁶³ from a court outside the Sixth Judicial Circuit, unless a party making the suggestion can make it satisfactorily appear to the court that there is reasonable ground for the same.” Judge Digges, speaking for the Court, identified the problem which gave rise to the Rule in Smith v. Fredericktown Bank & Trust Co., supra, 258 Md. at 143 -44: “The question presented here is whether the judicial circuits can use their local rule making powers, which are recognized in Article IV, Section 18 A of the Maryland Constitution to regulate the ‘absolute’ right of removal in civil cases. * * * The problem is not a simple one of the regulation or restriction of that right, but of the court’s ability to check the grossest abuses of this constitutional privilege.

With the noticeable increase in litigation in Maryland since 1875, when the right of removal was last placed in the Constitution, it has become a common practice for attorneys to use the suggestion of removal as an unimpeachable and uncontrollable dilatory tactic. While it is still correctly used to avoid the possible impact of local prejudice in those cases in which it can be exercised, * * * its use as an eleventh hour maneuver to avoid trial both harasses the opposition and disrupts the constitutional rights of others to have their day in court.” Judge Digges’ comment is reminiscent of an observation made many years ago by John Prentiss Poe, 2 Poe, Pleading and Practice § 103 at 79-80 (5th ed. 1925) : “Practical consequences of the absolute right of removal.—In theory the right of removal is very valuable and important, but in practice the number of cases in which a local prejudice exists, so serious as to interfere with an impartial ¹⁶⁴ administration of justice, is comparatively small. Indeed, the privilege in civil cases has been and is still greatly abused; and it is to be regretted that when the constitutional amendment was proposed in 1874, it was not in terms made to apply to civil causes. It surely could not be regarded as a material abridgment of the right to require every party seeking to exercise it to satisfy the court that his reasons for the apprehension that he could not have a fair and impartial trial were substantial.

As the law stands now, the removal in civil cases can be had whenever the party is willing to make the suggestion and swear to it. The requirement of an affidavit is found by experience to be but a slight obstacle in the way of a party who knows that its truth can not be inquired into, and whose real purpose in asking for the removal is to gain time or to escape the consequences of his own want of diligence in preparing for the trial, or to subject the other side to expense and annoyance.” Mr. Poe, in treating the historical development of the right of removal, see 2 Poe, supra §§ 90-103 at 72-80, notes that it had its roots in the early common law, where courts were recognized to have the power to remove a case to an adjoining county for trial, when justice required. The right was elevated to constitutional status by an 1806 amendment to Maryland’s Constitution (Chapter LV, § 2 of the Laws of 1804) ; reappeared as Art. IV, § 28 of the Constitution of 1851, as Art. IV, § 9 of the Constitution of 1864, and as Art. IV, § 8 of the Constitution of 1867. It is the latter provision, as amended on 2 November 1875, which is in force today.

As the provision evolved, however, the underlying concept changed. In 1806, removal could be had to another court in the same judicial district; in 1851, to the court of an adjoining county, but in civil cases only to the court ¹⁶⁵ of an adjoining county in the same judicial circuit. Both the 1806 and 1851 provisions specified that the suggestion of removal had to be made not later than during the term at which issue was joined. The 1864 provision permitted removal to a court in the same or an adjoining judicial circuit; the 1867, to any circuit in the state.

Neither the 1864 nor the 1867 provision imposed any time limit within which the suggestion should be made. In the 1864 provision, the party suggesting removal was required to make it satisfactorily appear to the court that he could not have a fair and impartial trial; the 1867 proviso stripped the court of this discretion. The 1875 amendment narrowed the absolute right of removal given by the Constitution of 1867, according it only to criminal cases punishable by death and to civil cases. In non-capital cases, the movant was required to make it satisfactorily appear to the court that his suggestion of removal was true, or that there was a reasonable ground for it.

Thus, only as regards criminal cases not involving a capital offense, removal now lies within the discretion of the trial court, Maryland Rule 738. The narrow question here presented is whether the Circuit Rule is an impermissible encroachment on the right guaranteed since 1875 by Maryland Constitution, Art. IV, §8: “Section 8. Removal of causes. “The parties to any cause may submit the same to the Court for determination without the aid of a jury, and in all suits or actions* at law [,] issues from the Orphans Court, or from any court sitting in equity and in all cases of Presentments or indictments for offences, which are or may be punishable by death, pending in any of the courts of law in this State having jurisdiction thereof 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 ¹⁶⁶ same may be pending, the said court shall order and direct the record of proceedings in such suit or action, issue presentment, or indictment, to be transmitted to some other court having jurisdiction in such case for trial, but in all other cases of presentment or indictment, pending in any of the Courts of law in this State having jurisdiction thereof, in addition to the suggestion in writing of either of the parties to such presentment or indictment that such party cannot have a fair and impartial trial in the court in which the same may be pending, it shall be necessary for the party making such suggestion to make it satisfactorily appear to the Court that such suggestion is true, or that there is reasonable ground for the same. And thereupon the said