Ballot Questions 2 and 3: For or Against?

By JOE PALAZZOLO, Capital News Service

WASHINGTON - Almost every election we find one or more questions on the ballot that we need to vote on. If you're like most people, you may find it hard to understand the issue that is buried in all the legal mumbo jumbo.

Next Tuesday you'll find four questions on the ballot.

Questions one is fairly straight forward. It asks whether or not we should take away the constitutionally mandated authority of the Board of Public Works and give it to the legislature regarding the sale of state-owned outdoor recreation, open space, conservation, preservation, forest, or park land.

Those in favor say it will prevent political abuse by the Governor. Those opposed say it will take the authority away from an executive committee that can best weigh the facts when making a decision and give it to the politically motivated legislature--a move that will give more power to Baltimore and Montgomery counties who can trump decisions that might favor southern Maryland.

The other three questions are more complicated. This article will look more closely at Questions two and three—which are somewhat related.

In the 1850s, Marylanders could demand a jury trial for any dispute over $5. Even adjusted for inflation—today, that would be about $111—it was a bargain.

More than 150 years later, a person can still insist on a jury trial for an argument over a sum equal to the price of a six pack of Bud or a McDonald's Extra Value Meal, thanks to a constitutional thread overlooked by lawmakers for the last 35 years.

In an age when jury trials regularly cost the court more than $5,000, legislators and swamped judges say the $5 limit needs to be raised—significantly.

Voters will ultimately decide Nov. 7 via ballot Question 3 whether to raise the threshold in civil proceedings to $10,000. It's one of two court-related questions on the general election ballot.

"We just cannot afford to try cases with jury trials over $5, or even $5,000," said Prince George's County Circuit Court Judge Thomas P. Smith. "It would grind us to a halt."

The General Assembly thought it had the jury trial problem licked in the 1990s, when it increased the threshold to $10,000. But the Court of Appeals found that the bills' authors hadn't confronted a part of the Maryland Declaration of Rights that says the right to trial by jury is inviolate.

"It's an anomaly. We thought we had corrected it in 1996, and the General Assembly thought they had had the authority (to increase the sum) all along. We just missed it in the law," said Smith.

The court's decision in 2004, threw out the corrective effort and reinstated the 19th-century limit of $5. Question 3, if passed, would bring the statutes up to date, said Delegate Michael D. Smigiel Sr., R-Elkton, a member of the House Judiciary Committee.

"It's cost-prohibitive to have a jury trial that costs thousands of dollars, and for the litigants to spend a couple-of-thousand dollars on legal fees over a small sum," Smigiel said. "You don't want the cost of the hearing to exceed the amount in dispute."

Voters also will be asked to decide another question of court procedure by changing the jurisdiction for some Circuit Court appeals from Maryland's highest court to the Court of Special Appeals. The change would set into law what is now common practice.

This problem, too, has its origin in an oversight, this one in the 1960s when the General Assembly was amending Maryland's Constitution to make way for a new Court of Special Appeals.

When a Circuit Court case is appealed in banc—to a panel of three Circuit Court judges—the party who files the appeal must accept the judges' decision, win or lose. But the other party in the case is entitled to appeal.

The Court of Special Appeals was created in 1966 to guarantee appeals from lower courts, freeing the Court of Appeals of Maryland, the state's highest court, to choose which cases it hears, like the U.S. Supreme Court.

But the language for in banc appeals was never updated to give the new Court of Special Appeals jurisdiction. Then in 2005, the Court of Appeals ruled that it must hear appeals from in banc Circuit Court decisions, meaning the other party's appeal in an in banc decision wasn't guaranteed.

Question 2, if passed, would give the Court of Special Appeals jurisdiction and guarantee an appeal to the entitled party in an in banc decision.

"We think this is an appropriate change of the law," said Kathleen H. Meredith, chairwoman of the Maryland State Bar Association's Litigation Section Council. "It essentially establishes what many people already thought existed."

The Maryland Bar also supports Question 3, Meredith said, calling both "no-brainers."

Question 2 amounts to little more than "housekeeping," added Smigiel, who authored the bill underwriting the ballot question.

"Everybody for the last 30 years has been taking their appeal to the Court of Special Appeals, but the Maryland Constitution says the appeal has to go to the Court of Appeals," Smigiel said. "What this does is to correct a statutory oversight that left the in banc appeals going directly to the court of appeals."

The Department of Legislative Services of the Maryland General Assembly prepared the following Summaries of Questions two and three.

Question 2: Right of Appeal to the Court of Special Appeals from a Decision of a Circuit Court in Banc

Amends Section 22 of Article IV - Judiciary Department of the Maryland Constitution to provide a direct appeal to the Court of Special Appeals following an in banc review of a circuit court decision to any party that did not request the in banc review; establishes that three circuit court judges constitute a court in banc; provides that the procedure for an appeal to a court in banc shall be provided in the Maryland Rules; and eliminates obsolete provisions pertaining to writs of error.

Under current law, Article IV, Section 22 of the State Constitution grants, with some exceptions, a party the right to appeal the determination of a legal question in a circuit court trial to a three-judge panel, called a court in banc. The decision of the court in banc is considered final and conclusive for the party that requested the review. However, the party that did not request the in banc review may appeal the decision of the circuit court in banc to the State's highest court, the Court of Appeals. Because the Court of Appeals hears cases by granting certiorari, this appeal is discretionary, not automatic or direct.

This constitutional amendment will allow a party that did not request an in banc review of a circuit court decision to appeal an adverse ruling of the court in banc directly to the State's intermediate appellate court, the Court of Special Appeals. This constitutional amendment also establishes that three judges of a circuit court constitute a court in banc, repeals the authority of circuit courts to determine the procedure for an appeal to a court in banc and instead establishes that the Maryland Rules shall provide the procedure for such an appeal, and eliminates obsolete provisions pertaining to writs of error.

Question 3: Civil Jury Trials - Amount in Controversy

Amends Article 5(a) of the Declaration of Rights to authorize the enactment of legislation to limit the right to trial by jury in civil proceedings to those proceedings in which the amount in controversy exceeds $10,000.

Currently, Article 23 of the Declaration of Rights guarantees the right to a jury trial in a civil proceeding where the amount in controversy exceeds $10,000. "Amount in controversy" generally means the amount of monetary damages claimed in a civil case. Current statutory law, enacted to implement this constitutional provision, authorizes a party in a civil case in which the amount in controversy exceeds $10,000 to request a jury trial. The intent of these constitutional and statutory provisions was to limit the right to a jury trial in civil proceedings to those cases in which the amount in controversy exceeds $10,000.

However, in a 2004 case, the Court of Appeals of Maryland (the State's highest court) ruled that Article 5(a) of the Declaration of Rights establishes a common law right to a trial by jury in all civil cases and that Article 23 does not affect this right in cases where the amount in controversy is $10,000 or less.

This constitutional amendment proposes an amendment to Article 5(a) to expressly grant the General Assembly the authority to enact legislation that limits the right to trial by jury in civil proceedings to those proceedings in which the amount in controversy exceeds $10,000.

During the 2006 session, the General Assembly also passed companion legislation (Chapter 575) to make the changes to statutory law necessary to implement this constitutional amendment. That legislation, which will only take effect if the constitutional amendment is ratified, prohibits a party in a civil case from requesting a jury trial if the amount in controversy does not exceed $10,000.

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