December 7, 2022
Forty-eight states have a “Supreme Court.” Maryland and New York do not. Maryland and New York call their highest court the “Court of Appeals,” the name most states use for their intermediate appellate court. Maryland’s intermediate appellate court is known as the “Court of Special Appeals,” notwithstanding that appeals to that court are as of right and not “special.” On November 8, 2022, the voters of Maryland approved a constitutional amendment renaming the Court of Appeals as the “Supreme Court of Maryland” and the Court of Special Appeals as the “Appellate Court of Maryland.” On December 14, 2022, the Governor of Maryland is expected to issue a proclamation announcing approval of the constitutional amendment and after 12:01 a.m. on December 14, all papers in the two appellate courts will have to be captioned with their new names.
The name changes are intended to be just that – mere name changes. There will be no changes in the jurisdiction or procedures of the two courts. The justices of the “Supreme Court,” will continue to wear the distinctive red robes that they did when they were judges of the “Court of Appeals.” The proponents of the constitutional amendment argued that the names of Maryland’s appellate courts were confusing and the changes would make the relative position of the two courts more clear, especially to lawyers and courts in other states citing Maryland cases. The proponents’ arguments were not without merit.
I was opposed to the changes and the loss of the name by which Maryland’s highest court has been known since 1776. But other than “tradition,” I really did not have a good argument to support my position.
Although state law is substantially uniform across the United States, that uniformity is not universal. Two organizations that have fostered uniformity among the states are the Uniform Law Commission, which was founded in 1896, and the American Law Institute, which was founded in 1923. I have been a member of the ALI since 2007. The ULC proposes statutes for enactment by state legislatures and the ALI publishes, among other things, Restatements of the Law, which have had great influence upon decisions by the courts, especially in areas of the Common Law.
There are areas in the law where Maryland does not march to the same drummer as do other states -- or the Restatements of the Law. For example, Maryland is one of only four states and the District of Columbia that bar all recovery for negligence where the plaintiff has been contributorily negligent, a doctrine that was rejected by the Restatement (Third) of Torts: Apportionment of Liability. The renaming of Maryland’s appellate courts, raises the question whether Maryland’s courts, especially its newly-named Supreme Court, will be open to substantive changes in the law in addition to the recent cosmetic change of names. Stay tuned.