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Article IV, Section 22 of the Maryland Constitution Permits an In Banc Panel to Hear Appeals from Judgments Not Stemming from Merit Trials

Steven Berg v. Susan Berg
(June 2, 2016) Court of Special Appeals of Maryland

by Matthew J. McCloskey, Associate
Semmes, Bowen & Semmes (

Available at:

In a recent decision, the Court of Special Appeals of Maryland interpreted, for the first time in approximately 150 years, the scope of jurisdiction conferred by Article IV, section 22 of the Maryland Constitution on a three-judge in banc panel of the Circuit Court to hear appeals.

In 2005, Plaintiff, Steven Berg, filed a complaint for divorce and other relief against Defendant, Susan Berg. Following a merits trial in 2007, Defendant was awarded a monetary judgment. Due to irregular payments by Plaintiff, Defendant later brought a garnishment action attempting to attach Plaintiff’s wages. Plaintiff, however, objected to the methodology that Defendant employed on an interest worksheet that she submitted along with her garnishment action. Consequently, the Circuit Court for Montgomery County held an evidentiary hearing to determine the actual outstanding balance Plaintiff owed on the monetary judgment. After reviewing evidence in the form of exhibits and testimony, the Circuit Court issued a written order that generally agreed with Plaintiff.

Subsequently, Defendant filed a timely motion to alter or amend judgment, which was denied. Defendant then noted an in banc appeal pursuant to Article IV, section 22 of the Maryland Constitution, and a hearing before a three-judge panel was held. At the hearing, Plaintiff argued that the in banc panel had no jurisdiction to entertain the appeal because the decision the panel was asked to review did not stem from a merit trial. The panel rejected Plaintiff’s argument, concluding that it did have jurisdiction to entertain the appeal, and it also reversed the earlier decision of the Circuit Court. Plaintiff thereafter appealed to the Court of Special Appeals.

Judge Salmon, writing for the Court, affirmed the decision of the panel concluding that it had jurisdiction to hear Defendant’s appeal. Beginning with a discussion of the history of Article IV, section 22, the Court noted that, until 2006, section 22 provided, in part:

Where any Term is held, or trial conducted by less than the whole number of said [c]ircuit [j]udges, 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 …

(Emphasis added). The Court of Appeals had interpreted this provision to provide an optional remedy for litigants in order to avoid the delay and expense of appeals to the Court of Appeals, as well as to reduce the total number of appeals filed to the Maryland’s appellate courts. Consequently, the Court of Appeals later concluded, in Bienkowski v. Brooks, 386 Md. 516 (2005), that litigants wishing to appeal from an in banc decision were limited to filing a petition for certiorari with the Court of Appeals.

To contravene the Bienkowski decision and permit appeals from in banc panels to the Court of Special Appeals, as well to adjust the archaic language in the section, Article IV, section 22 was amended in 2006 to provide, in part:

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 question reserved for the consideration of three Judges of the Circuit, who shall constitute a court in banc for such purpose …

(Emphasis added). Relying on the deletion of the words “Term is held,” Plaintiff argued that the 2006 amendment narrowed the scope of what could be considered by an in banc panel. Specifically, Plaintiff argued that, although Defendant’s appeal would have been proper under the original terminology of section 22, the amended terminology limited the right to appeal to an in banc panel to judgments stemming from merit trials.

The Court of Special Appeals rejected this argument. As an initial matter, several reported cases involved appeals from in banc appeals addressing judgments and orders not stemming from merit trials. Although none of those cases took place after the 2006 amendment to section 22, this indicated that there was a long-held understanding that the section permitted appeals of non-trial judgments and orders.

In any event, however, the Court analyzed the plain meaning of the word “trial” as used within Article IV, section 22. Ultimately, in view of the fact that the framers of section 22 sought to provide a cost-effective option to appeals to Maryland’s appellate courts, the Court concluded that the term “trial” had a broad meaning encompassing “that step in an action by which issues or questions of fact are decided.” In this case, the hearing on the methodology employed by Defendant in her interest worksheet was clearly a step in an action in which an issue or question of fact was decided. Accordingly, the in banc panel had jurisdiction to entertain Defendant’s appeal.

The Court, however, issued a caveat. Plaintiff argued that, under the Court’s logic, in banc panels could plausibly have jurisdiction to hear any matter that could be heard by the Court of Special Appeals. Consequently, an in banc panel could hear appeals in cases where no trial was conducted, such as an appeal from a motion for summary judgment. Plaintiff urged that this interpretation effectively rendered meaningless the words “[w]here any trial is conducted” in Article IV, section 22. Although the Court of Special Appeals expressly declined to consider this “interesting point” in its decision, it cautioned: “Members of the bar should be aware that such an issue lurks.”