Locating a Fragmented Appellate Court’s Rule of Decision – The Marks Rule Marks the Spot?
Stare decisis, the practice of following in judicial decisionmaking a rule of decision established in prior cases, is a cornerstone of the United States legal system. More fundamentally, it is the practice of respecting precedent. The Marks Rule, the subject of this post, aides stare decisis by purporting to establish a method for ascertaining the binding rule of decision in fragmented cases, that is, cases in which no majority of a quorum of an appellate court joins in a single opinion of the court or in otherwise expressing the rule of decision. The Marks Rule provides that:
When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds …. “
Marks v. United States, 430 U.S. 188, 193 (1977), quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976) (opinion of Stewart, Powell, Stevens, JJ). In other words, the Marks Rule establishes precedential effect of a decided case, where there would otherwise be none.
The judicial principle that a rule of decision is established only when a majority of a quorum of an appellate court joins in a single opinion of the court is the primary rationale for the existence of the rule. In addition, the rule relieves a court of the more difficult task of establishing a new rule of decision in a single opinion, a difficult if not sometimes impossible task requiring the expenditure of time and additional intellectual and, often, emotional energy. Likewise, the rule allows lower courts to have the benefit of binding precedent where there would otherwise be none.
Like the principle that only a majority can establish a rule of decision, the Marks Rule is also a principle of precedential law. It purports to bind decisionmaking by state and lower federal courts when the subject is a prior Supreme Court decision (and also by federal district courts applying decisions of the circuit courts of appeal). In those instances where state judiciaries have adopted the Marks Rule for purposes of construing their own cases, the Marks Rule also purports to bind decisionmaking by lower state courts, when the subject is a state appellate court case.
Maryland is one of the few state jurisdictions to have applied the Marks Rule to the decisions of its own appellate courts. See State v. Falcon, 451 Md. 138, 161-62, 152 A.3d 687, 701 (2017); Ali-Fuller v. Moyer, No. 1289/16 (Md. App. Dec. 13, 2017) (unreported); Long v. Dep’t of Public Safety & Correctional Svcs., 230 Md. App. 1, 18, 146 A.3d 546, 556 (2016); Wright v. State, No. 1077/15 (Md. App. May 17, 2016) (unreported); Feaster v. State, No. 1967/14 (Md. App. Dec. 30, 2015) (unreported), citing Wilkerson v. State, 420 Md. 573, 594 (2011); In re Nick H., 224 Md. App. 668, 684-85, 123 A.3d 229, 238-39 (2015); Quise del Pino v. Dep’t of Public Safety & Correctional Svcs., 22 Md. App. 44, 58-59, 112 A.3d 522, 530-31 (2015); Guardado v. State, 218 Md. App. 640, 98 A.3d 415, 421 (2014). The other state jurisdictions applying the Marks Rule are California, Connecticut, Massachusetts and New York.
The apparent value of the Marks Rule can be put into perspective by appreciating its place in the fundamentals of a viable and orderly system of law. There is at least one attribute of such a system, in whatever form, that is essential to its purpose of enabling rights, privileges, powers and liabilities to govern behavior among legal persons. Whether the subject form of law is constitutional provisions, statutes, rules, orders or judicial decisions and whether the legal persons are individuals or other entities that have rights, privileges, powers and liabilities, law must be ascertainable. As stated, the Marks Rule aides this attribute, for it establishes rules of decision where none might otherwise exist.
From the attribute of ascertainability, two further requirements for an effective body of law derive. First, it must be the goal that the meaning of all statements of law be objectively understandable, not susceptible of subjective and differing understandings. Attaining this goal is, of course, impossible, but still there must be the aim of achieving – and devices and procedures for achieving – a broad common understanding of the meaning of statements of law. Absent at least wide common understanding, it would be impossible for law to achieve its purpose of governing behavior among legal persons. Without some level of common understanding about what any given right, privilege, power or liability means, actions and transactions among persons would be unmanageable, their consequences uncertain and their effects unreliable. As stated, the Marks Rule aides this requirement, for it provides guidance as to how the various opinions in a fragmented decision are to be respected in ascertaining a rule of decision.
Second, whatever the common meaning of any particular statement of law, it needs to be stable. If the meaning of a given right, privilege, power or liability, however commonly understood, can change weekly, monthly, yearly or even more often, actions and transactions among persons would also be unmanageable, their consequences likewise uncertain and effects unreliable. This is not to say that meanings must be immutable. As our understandings of human and economic behavior change, the law must adapt to those changes, lest it become ineffective in its purpose to govern behavior among legal persons.
The right to equal treatment in race relations and, in particular, the demise of the “separate but equal” doctrine are paradigms for changing meanings in law wrought by change in our understanding of human behavior. A paradigm for change in the sphere of economics has been the increasing acceptance of vertical market integration by antitrust law. The constitutional prohibitions against ex post facto punishments and prohibiting a state from passing any law that “impairs the obligation of contracts” are examples of legal principles themselves aimed at stability. With regard to stability, the Marks Rule, as stated, also lends assistance, given that the common denominator in a fragmented decision (the “majority’s” narrow rule of decision) will have a tendency, over time, to constrain the direction of development of the law applicable to the matter at issue.
Although a body of law must allow change in order to remain viable, how that change occurs is also important, in order to allow time for persons to prepare for and adapt to change. So stability is not just the limitation of change but also change that is gradual and predictable. An effective body of law must be not just a continuous function but also a function without large or frequent discontinuities. Here, again, the Marks Rule, as stated, makes a contribution, given, again, majority common denominator’s tendency over time, to constrain the direction of development of the matter of law at issue.
The Marks Rule’s deceptively simple statement is enticing, particularly given the support it lends to a viable legal system or body of law. Despite the simplicity of its statement, however, it application in judicial practice has probably resulted in at least as much uncertainty in yielding a rule of decision and, thereby a binding precedent, as it has certainty. In other words, despite the rule’s appeal “as stated,” in practice, it falls short of the “Mark.”
Judicial experience with the Marks Rule, empirically and analytically, is exhaustively and comprehensively covered in a forthcoming law review article by Richard M. Re, an assistant professor at the UCLA School of Law. His article convincingly concludes that the Marks Rule should be abandoned, at least as a rule for conferring precedential status on fragmented decisions equivalent to the precedential status of cases whose rule of decision is expressed in an opinion joined by the majority of an appellate court or in a rule of decision expressed by such a majority, though in two or more opinions in a case.
Analyzing several fragmented Supreme Court cases, including their treatment by lower state and federal courts, Professor Re demonstrates that “[w]hen the justices do not express majority agreement, there is no logical or inevitable basis for inferring majority approval for any particular rule of decision.” For example,
To illustrate as much … take Williams v. Illinois, [567 U.S. 50 (2012)], which is one of the most often Marks’d cases ever …. Despite sharp disagreements among the justices, lower courts have tried to apply the Marks rule. Yet Justice Elena Kagan’s dissenting opinion pointed out why any effort to extract precedent from Williams would inevitably prove to be futile. As she put it, “The five Justices who control the outcome of today’s case agree on very little,” and “no proposed limitation [on the relevant constitutional right] commands the support of a majority.” [567 U.S. at 141 (Kagan, J., dissenting).]
An unreported decision of the Maryland Court of Special Appeals, though by Maryland Rule 1-104 not itself a precedent, provides another illustrative example of the Marks Rules difficulty in practice. The issue in Ali-Fuller v. Moyer, supra, was whether amendment of the Maryland sex offender registration laws to require retroactive registration of convicted sex offenders violated Article 17 of the Maryland Declaration of Rights’ prohibition of ex post facto laws. Resolution of the issue turned on the construction and application of Doe v. Dep’t of Safety & Correctional Svcs., 430 Md. 535 (2013) (Doe I), a fragmented decision of the Court of Appeals. A three-judge plurality contended that the prohibition is violated when “the law is retroactively applie[d] and the application disadvantages the offender.” Id. at 551-52. The Supreme Court had rejected this arguably broad test of illegality in Collins v. Youngblood, 497 U.S. 37 (1990), when applying the ex post fact prohibition in the U.S. Constitution. Instead, the Supreme Court applies the two-step “intents-effects” test, which requires, first, a determination whether the legislature, in enacting a law, intended additionally to penalize a convict, as opposed to establishing some form of civil regulation, which would be unconstitutional, and, if not, whether the law, despite civil regulatory intent, is nevertheless so punitive either in purpose or effect as to negate such intent. See Smith v. Doe. 538 U.S. 84, 92, 105 (2003).
Two judges in Doe I concurred in the judgment of the Court of Appeals but purported to apply the federal constitutional standard, viewing Article 17 as in pari materia with the U.S. Constitution. The court in Ali-Fuller, therefore, viewed the concurrence as effectively but not expressly applying the “intents-effects” test and, applying the Marks Rule, held that test to be the test applicable in the case before it under the Maryland Declaration of Rights. The leap of faith here, of course, is that the concurrence never made clear how it viewed the Supreme Court’s treatment of the ex post facto prohibition. Whether the concurring judges’ understanding and application of the “intents-effects” test comports with the Supreme Court’s or the three-judge plurality’s understanding of the test is unknown. The Marks Rule’s umbrella of certainty is only an illusion, formed by the impression of others as to just what the “narrowest grounds” for decision was in Doe I.
Indeed, the Ali-Fuller court leaped, not once, but twice in its decision, for in evaluating whether the registration amendments at issue were in purpose or effect so punitive as to override any benign intent, the court, as did the plurality in Doe I, looked to the Supreme Court’s decision in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). Mendoza-Martinez was actually a majority decision, but Justice Thomas, who provided the majority’s fifth voted, also filed a concurrence that expressly “join[ed] the Court’s opinion,” but only because the relevant facts satisfied a separate test to which only Justice Thomas subscribed. For this reason, Professor Re describes Mendoza-Martinez as a case to which lower courts have frequently applied the Marks Rule, again purporting to achieve precedential certainty where there really was none.
Professor Re argues for abandoning the Marks Rule, not so much for its unmanageability as for its tendency to relieve appellate courts from the work of forming definitive rules of decision through majority opinions. So viewed, rather than creating an illusory certainty, the Marks Rule impedes the creation of true certainty. It operates to relieve a court of the difficulty of achieving a majority opinion and rule of decision, while still permitting a decision or judgment, if not a controlling rule of decision. One may question how much of a problem this is or whether abandoning the Marks Rule would increase certainty, for with difficult questions of law, particularly those implicating societal mores and values, even majority opinions will be written with ambiguity and lack of clarity to accommodate experimentation and evolution in the law. The Marks Rule seeks certainty through logic, but as Justice Oliver Wendell Holmes observed, “The life of the law has not been logic: it has been experience.”
The Supreme Court this past term, in Hughes v. United States, No. 17-155 (decided Jun. 4, 2018), declined an opportunity to clarify or abandon the Marks Rule in the context of 4-1-4 decisions of the Court. Slip Op. at 3. This itself, however, may reflect judicial pragmatism, for the Marks Rule, viewed not as a rule conferring precedential effect on decisions where there often is none but as one principle for construction of judicial opinions, in order to divine the development of direction in the law, is a useful principle. That, in fact, appears to be one substantial manner in which the Marks Rule has been treated in practice and should be the valuable understanding of it.
 According to the Supreme Court, a precedent is established, in general, only when a majority of justices subscribe to a single rule of decision. See CTS Corp. v. Dynamics Corp., 481 U.S. 69, 81 (1987) (plurality view was nonbinding, as it “did not represent the views of a majority of the Court”).
 Maryland Courts have also applied the Marks Rule when construing fragmented decisions of the Supreme Court. See State v. Norton, 443 Md. 517, 539-40, 117 A.3d 1055, 1068 (2015); Colbert v. State, 229 Md. App. 79,143 A.3d 173, 176-77 nn.3, 4 (2016); Derr v. State, 434 Md. 88, 114, 73 A.3d 254,269 (2013); Wilkerson v. State, 420 Md. 573, 24 A.3d 703, 715 (2011); Cooper v. State, 877 A.2d 1095, 1107, 163 Md. App. 70 (2005).
 Re, Beyond the Marks Rule, 132 Harv. L. Rev ___ (forthcoming 2018), February 24, 2018 draft at 14-15 (draft: https://www.law.uchicago.edu/files/2018-01/beyond_the_marks_rule_1-5-18_draft_uc_0_0.pdf) (citations here and hereinafter are to pages of the February 24, 2018 draft).
 Professor Wesley N. Hohfeld, a Yale Law School professor, proposed early in the last century a taxonomy of legal relationships consisting of precisely defined meanings for a right, a privilege, a power and an immunity and the correlatives of these relationships that comprehensively describe all of the legal relationships that exist among juridical entities in an orderly and effective system of law. See generally W.N. Hohfeld, Fundamental Legal Conceptions (1919).
 U.S. Const. art. 1, §§ 9, 10
 Id. at art. I, § 10, cl. 1.
 Re, supra, note 3.
 Id. at 4.
 Id. at 47 (footnotes omitted).
 U.S. Const. art. I, § 10.
 Re, supra, note 3, at 16-17.
 O.W. Holmes, The Common Law, at 1 (1881).
 See Re, supra, note 3, at 40 (“Thus, the Court’s precedents can reasonably be read to invite recourse to the Marks rule where it sensibly applies, rather than rigid adherence to it. In other words, Marks can be viewed as establishing more of a guideline than a rule.”). For discussion of a similar rule of appellate opinion construction, see Sternstein, The Precedential Effect of United States Supreme Court Minority Decisions, 15 Ariz. L. Rev. 621 (1973).
 See Re, supra, note 3, at 26-38.