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Maryland Court of Appeals Announces Proper Procedure for In Banc Review

by Dale Chappell

In a case where in banc review was improperly granted to review a circuit court’s ruling, the Court of Appeals of Maryland took the opportunity to clarify when in banc review can be granted.

After the circuit court granted Bashunn Phillips’ pretrial motion to exclude evidence from his murder trial, the State filed for in banc review of the court’s order. The in banc panel reversed the circuit court’s order, and Phillips appealed to the Court of Special Appeals. Reversing the in banc panel’s decision, the Court of Special Appeals held that the State had no right to appeal the circuit court’s order to the in banc panel, and the panel therefore did not have jurisdiction to hear the appeal. The State appealed to the Court of Appeals.

Before the Court of Appeals, the State argued that it had the right under Article IV, § 22 of the Maryland Constitution to appeal to the in banc panel. The Court framed issue as, “Whether the in banc court was lawfully created” at all.

Under Article IV, §22 of the Maryland Constitution, a party may challenge a circuit court’s decision to “three judges of the Circuit, who shall constitute a Court in banc for such purposes.” The procedure for appeals to an in banc court are governed by the Maryland Rules, which “have the force of law.” Under Rule 2-551, an issue is reserved for in banc review by making an objection in the circuit court as set forth in applicable rules for those objections. The notice for in banc review must then be filed “within ten days after entry of judgment” or certain dispositive rulings. This time may not be extended. Thereafter, the Circuit Administrative Judge designates three circuit judges to sit in banc. The decision of the in banc panel does not preclude an appeal to the Court of Special Appeals by a party “who is otherwise entitled to appeal.”

After reviewing over a century of case law and the several amendments since to §22, the Court of Appeals determined that the State did not have the right to appeal to an in banc panel. In order to do so, the Court said, a party must file its notice for in banc review within 10 days, as the rule mandates. The State here filed its notice for in banc review within six days, but it waited over a month to file its objections to the issues to be appealed to the panel. “A month would not qualify as a timely objection and thus not a timely reservation,” the Court held. That was just one reason the Court found the in banc panel had no jurisdiction to hear the State’s appeal.

Next, Rule 2-551 is “unmistakably clear” that an in banc panel is not to be designated until a notice for in banc review is filed within 10 days after the judgment was entered. “That hasn’t happened yet,” the Court said. An in banc review is permitted only when a judgment has been entered. This precluded in banc review of interlocutory rulings, such as the suppression order in Phillips’ case.

Finally, the State failed to overcome the “inconvenient fact” that it had no right to appeal to the Court of Special Appeals, which meant it also had no right to in banc review. The right to appeal in a criminal case is limited by Courts Article § 12-302(c), and the circuit court’s order did not fall under that rule, the Court concluded. “When no appeal from a circuit court could be taken to the Court of Special Appeals or the Court of Appeals, then no appeal can be taken to a court in banc.”

In sum, the Court said in banc review under §22 provides a “comparable and compatible alternative” to an appeal to the Court of Special Appeals without “unduly interrupting the ordinary course of trial.” To be entitled to in banc review, a party must (1) properly and timely object in the circuit court, (2) be appealing from a final, appealable judgment, and (3) file a notice for in banc review within 10 days of that judgment. Otherwise, the in banc panel is without jurisdiction to render a judgment on an appeal.

Accordingly, the Court of Appeals affirmed the Court of Special Appeals’ judgment holding that the in banc panel did not have jurisdiction to enter a judgment reversing the circuit court’s order suppressing the evidence in Phillips’ case. See: State v. Phillips, 179 A.3d 965 (Md. 2018). 

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