Save time and money by appealing in banc

By John Grimm

I recently posted about appeals in District Court of Maryland cases, including lesser-known appellate options. Maryland also allows for an unusual type of appeal from circuit court decisions — the in banc appeal. Article 4, § 22 of the Maryland Constitution allows, with some exceptions, a party who loses “any trial conducted by less than three Circuit Judges,” to request review “in banc” (and yes, for the pedantically inclined, the term of art is “in banc,” not the more common “en banc”) by three circuit court judges, in lieu of an appeal to the Court of Special Appeals.

The exact rationale for the in banc review may be lost to history, but the common understanding is that, when the 1867 Constitution was drafted, the framers wanted to provide an alternative to a costly trip to Annapolis and the expense of preparing an appellate brief; this explains the procedure’s colloquial name: the “poor person’s appeal.” (For a detailed history of the creation of the in banc procedures, read this.) Although cars and word processors have rendered these concerns somewhat anachronistic, appeals are still expensive and time consuming, and the in banc appeal remains an option worth considering in the right case. An in banc appeal is possible in both civil and criminal cases, but it is not available for review of appeals of District Court trials, or for misdemeanors that are not punishable by “confinement in the Penitentiary.” In criminal cases, in banc review should not be confused with sentence review by a three-judge panel under Md. Code Crim. P. § 8-102, because a sentence-review panel can sua sponte increase a defendant’s sentence.

Although in banc reviews are uncommon, they are far from a dead letter, and Maryland’s appellate courts address them with surprising frequency. The Court of Special Appeals has confirmed that an in banc appeal is a substitute for an appeal in the Court of Special Appeals, and that an appellant cannot get two bites at the apple by requesting in banc review and filing a notice of appeal. See Bethesda Title & Escrow v. Gochnour, LLC, 197 Md. App. 450 (2011). However, the Constitution was amended in 2006 to allow an in banc appellee to appeal an adverse in banc decision to the Court of Special Appeals. (The amendment abrogated a 2005 Court of Appeals decision holding that neither the in banc appellant nor the appellee could appeal an in banc decision to the Court of Special Appeals. See Bienkowski v. Brooks, 386 Md. 516 (2005).) The Constitution now provides that “such decision in banc shall not preclude the right of Appeal, by an adverse party who did not seek in banc review . . . in the Court of Special Appeals.”

There can be good strategic reasons for seeking an in banc appeal instead of an appeal to an appellate court. The main one is that the in banc procedures, set out in Md. Rule 2-551, are much simpler than the appellate rules, and the entire proceeding is less formal. An in banc appeal is most likely faster and cheaper, so, for smaller claims, it may be more economical than a full-blown appeal. And it’s a good option if you’re not interested in a reported decision — or if you’re concerned that a loss will create harmful precedent in future cases.

Sometimes it can also be useful to have a circuit court decision reviewed by other judges of the same court. For example, some procedures vary county by county, and it might be helpful for the judges in your appeal to have expertise with local practices. In sum, the in banc review may largely be a historical holdover, but it has continued vitality as courts and the General Assembly develop it. As with any procedural tool, it’s worth understanding and giving consideration in determining your case’s appellate strategy.