What Is a Majority Opinion?

By Michael Wein

After eagerly awaiting the outcome this summer on whether Maryland would retain contributory negligence, or adopt comparative negligence as exists in 46 other States, the Court of Appeals of Maryland on July 9, 2013, kept contributory negligence. What is less clear is an unusual procedural question arising from the Court’s decision in Coleman v. Soccer Association of Columbia: Which opinion was the majority opinion?

There were three opinions that follow in sequential order. The first “Opinion” is 14 pages long and was written by Retired Judge John Eldridge. Judge Eldridge’s opinion itself does not specify that it is the majority opinion, though it does include the ‘Mandate’ section where the Court notes that the “Judgment of the Circuit Court for Howard County Affirmed.” Judge Eldridge’s opinion, for the most part, is devoted to his discussion as stare decisis precedent in Harrison v. Montgomery County Bd. of Education, 295 Md. 442 (1983), which Judge Eldridge originally joined.

The second opinion in order is the “Dissenting Opinion” written by Judge Glenn Harrell, and joined by Chief Judge Robert Bell. It is 51 pages, and inter alia compares the maintenance of Contributory negligence” as if it were a “[living] dinosaur roam[ing…] the landscape of Maryland…” It’s a good read.

But it is the third opinion, the four-page “Concurring Opinion”—that is intriguing. Now, if it were three judges concurring, that would be somewhat less unusual about a single judge’s written opinion being construed as a “majority opinion” by both the “Dissenting Opinion” and the “Concurring Opinion.” But the Concurring Opinion, authored by Judge Clayton Green, Jr., was joined by three other judges—Judge Lynne Battaglia, Judge Robert McDonald, and Retired Judge Irma Raker—meaning that a majority joined the opinion. And the Concurring Opinion itself points out this conundrum somewhat, with Judge Green at the outset noting “I join the majority opinion in rejecting Petition’s invitation to change Maryland common law and abrogate the doctrine of contributory negligence. I write separately to explain why I believe, in addition to the reasons advanced in the majority opinion, we should defer to the General Assembly with regard to what would amount to a comprehensive revision of the law in this State.”

Of course, the Court of Appeals of Maryland gets to say what the law is, but I’m uncertain that the label given here as to what constitutes the “Majority Opinion” is necessarily the most accurate. According to Judge Green’s opinion, four judges agreed on two somewhat interrelated grounds that the complications of changing to comparative negligence justifies one more (to use my phrase) “spin the wheel” deference in Maryland’s case law to the General Assembly. Perhaps the overlap is so nuanced on these two grounds, that it really does not make much of a difference. Regardless, it appears to be that Judge Eldridge’s decision is at least slightly narrower than Judge Green’s decision. And because Judge Green’s decision actually has a majority of vote, it would seem to be more traditionally construed as the majority opinion of the Court, while Judge Eldridge’s opinion—though perhaps a ‘super-majority’ of five judges, and despite being the first listed opinion with the ‘Mandate ‘ section attached, described by all 6 other judges as the “Majority” and ten pages longer than Judge Green’s opinion—is more accurately construed as a separate ‘Concurring’ opinion.

This construction would comport with the definition of what is a ‘majority’ opinion—in particular, that any opinion that is the “broadest rule” that has a “majority” of the judges, is to be construed as the majority opinion.   The Supreme Court has shown some creativity in this regard.  McConnell v. FEC, 540 U.S. 93 (2003), in making fractured rulings on the constitutionality of the Bipartisan Campaign Reform Act of 2002, issued three majority opinions for the different sections of the legislation.

This is not the first time in Maryland that there has been some question of what constitutes a ‘Majority’ versus a ‘Concurring’ opinion, though it is still a bit of a rarity. For example, Abrams v. Lamone, 398 Md. 146 (2007), also involved a complex fracturing of opinions on Thomas Perez’ qualifications under the Maryland Constitution to run for Attorney General, when he was only a member of the Maryland Bar at that time for five (5) years, and Maryland’s constitution seemingly required ten (10) years. The Court of Appeals unanimously ruled Perez was not then permitted to run for Attorney General of Maryland. (Note: Perez, who now serves as President Obama’s Secretary of Labor, recovered nicely from this temporary setback.)

The Court of Appeals summarized its opinions as follows: “Plurality Opinion by Bell, C. J., which Wilner and Cathell, JJ., join. Concurring Opinion by Eldridge, J., which Raker, J., joins; Harrell and Greene, JJ., join in Parts I and II only. Concurring Opinion by Wilner, J. Concurring Opinion by Harrell and Greene, JJ.”

It’s hard to see, right? But the middle “Concurring” Opinion by Judge Eldridge as far as Parts 1 and 2, was joined by not only Judge Raker, but also Judges Harrell and Green. Now, those sections merely held that to run for Attorney General, in accord with the Maryland Constitution, one had to be a Member of the Maryland Bar for 10 years. That conclusion didn’t require the almost 100 pages of decisions issued in that case, but the short opinion agreed to by the majority of judges on this point, does appear to be a clean and precedential ‘holding’ with four judges in support.    Thus, it should have perhaps been more accurate to state that Judge Eldridge’s opinion in Lamone was both a “Majority and Concurring” decision.

Other than clearer labeling, what’s the solution? In cases where there’s ambiguity or lack of clarity as to what are the clear majority ‘precedential’ holdings of the Court of Appeals, it would usually be preferable for the Court to spell it out, as has been done before. See e.g. Newman v. State, 384 Md. 285, 328 (2004) (Wilner, J., dissenting) (“[b]ut for Judge Harrell’s concurrence in this part of the dissent [on post-arrest silence issue], which deprives the Court’s opinion on this issue of any precedential value, its purported [3 Judge] ruling would sow nothing but confusion”).