Maryland’s COA and COSA should become SCOA and COGA
By Steve Klepper (Twitter: @MDAppeal)
Before COVID cut the 2020 Session short, the Maryland General Assembly was once again considering a constitutional amendment to change our highest court’s name from the Court of Appeals of Maryland to the Supreme Court of Maryland. As for our intermediate appellate court, the Court of Special Appeals, proponents were considering one of two alternatives—the Maryland Appellate Court or the Appellate Court of Maryland. The name-change movement appeared to be gaining real traction, and I would expect to see renewed proposals.
The legal historian in me likes the link to the Court of Appeals’ storied past, just like I love the judges’ red robes. But the name is confusing. In nearly all states, the highest court is called the “Supreme Court of [state],” and the intermediate appellate court is called the “Court of Appeals of [state].” Those names are descriptive and intuitive.
Our courts’ names, while nowhere near as confusing as New York’s, are confusing to Marylanders and non-Marylanders alike. There’s nothing intuitive about a system where we call our highest court the Court of Appeals and our intermediate court the Court of Special Appeals. I often have to remind my clients (lawyers and laypeople alike) which court is which. My very first post on this blog collected instances of Maryland federal courts accidentally referring to the Court of Appeals as the Maryland Supreme Court. And when I Tweet about Maryland appeals, I usually refer to the Court of Appeals as the “Maryland high court,” largely to avoid confusion.
But I have concerns about the proposed names, as a matter of practice and historical continuity. My proposal would be to rename them as follows:
- The Supreme Court of Appeals of Maryland
- The Court of General Appeals of Maryland
The National Conversation: Although the debate has focused on confusion among members of the general public, that confusion carries over to courts and advocates. The development of the common law is a national conversation among appellate courts, and the confusing names for our appellate courts diminishes Maryland’s voice in that conversation.
When an appellate judge outside Maryland asks a law clerk to survey decisions of state appellate courts on an issue of the common law, it is easy for a law clerk to mistake Court of Appeals decisions for intermediate appellate decisions, which carry less weight in the national conversation. (For that reason, when I cite Court of Appeals decisions in federal court or in other states’ appellate courts, I often refer to the “Maryland high court.”) Similarly, if non-Maryland attorneys are looking for persuasive authority to bring to a court’s attention, they are less likely to cite a Court of Appeals decision if they assume it is an intermediate appellate decision.
The Benefits and Costs of a “Supreme” Name Change: The word “Supreme” would remove ambiguity going forward. But there is a cost: as soon as there is a “Supreme Court of Maryland,” it will become even more natural for judges, their clerks, and advocates to assume that pre-name-change Court of Appeals decisions are intermediate appellate decisions, and to give them less weight in the national conversation. On balance, I believe that the benefits of a change, particularly as they relate to dispelling confusion among Marylanders, outweigh the drawbacks.
But, in the interest of continuity and clarity, I would suggest that the official name become the Supreme Court of Appeals of Maryland. Although it is a mouthful, our neighbors in West Virginia colloquially refer to the Supreme Court of Appeals of West Virginia as the “West Virginia Supreme Court” in conversation and court filings, without any confusion. And our neighbors in Virginia originally changed the name of their high court from the Court of Appeals of Virginia to the Supreme Court of Appeals of Virginia in 1830, before changing it to the Supreme Court of Virginia in 1971.
It may well be that future generations of Marylanders would eventually drop the “of Appeals,” as happened in Virginia, but the “Supreme Court of Appeals of Maryland” would give greater continuity and clarity in the short- and medium-term.
Our Intermediate Appellate Court’s Name: I think it far more important, however, to avoid changing the name of the Court of Special Appeals to the “Maryland Appellate Court” or the “Appellate Court of Maryland.” Both of these names would be very easily confused with the Court of Appeals of Maryland. For example, lawyers and judges outside Massachusetts often refer to the Massachusetts Appeals Court as the “Massachusetts Court of Appeals,” even though no court by that name exists. If there is no longer a court called the Court of Appeals going forward, it would be natural for a reader to assume that it is the same court as the “Maryland Appellate Court” or the “Appellate Court of Maryland.”
If there is a “Supreme Court of Maryland” or a “Supreme Court of Appeals of Maryland,” it may not be necessary to change the name of the Court of Special Appeals at all. “Supreme” is clearly above “Special.” I realize that “Special” is a vestige of the court’s early days, when it heard only non-capital criminal appeals and family law appeals, but to my mind it would be better than the confusion likely to ensue from renaming it the “Maryland Appellate Court” or the “Appellate Court of Maryland.”
Still, recognizing the benefits of changing the court’s name to accurately reflect its role, I would suggest the “Court of General Appeals of Maryland.” The acronym “COGA” would be a smooth transition from “COSA.” It would be a signal to judges, law clerks, and advocates that our appellate courts’ names are different when they are surveying nationwide decisions for persuasive value. Most importantly, “COGA” would accurately describe the court’s jurisdiction.
So this issue had almost passed into law last session, as you noted.
It’s unclear whether with the focus in Annapolis in 2021, on just legislation that’s seen as time-sensitive, or Covid-related, if it will be resubmitted and/or passed in 2021. If not, seems a good bet for 2022.
My sense, is that there’s not too much debate on renaming the Maryland Court of Appeals to the Maryland Supreme Court. Which, by the din of the name change, will most likely justify/allow Judges of the Court of Appeals, to now, as a matter of practice and protocol, be referred to as “Justices.” Just as in the United States Supreme Court.
That does not mean that some “tweaking” of the legislation should not be considered. New York’s system of calling the trial courts “Supreme Court” and the high court the “Court of Appeals” is way more confusing than Maryland’s, but somewhat mitigated by 20 years of Law and Order reruns (usually with Jack McCoy) explaining what each Court is called, even though the names are completely opposite from the way it’s done in every other state.
I do think, however, that some special recognition of the Maryland Court of Appeals’ history is called for, and as I suggested in the piece that you linked to,
that there should be a historical commission with the results put online in web site format, and furnish to the general public the history of the Court since about 1642. Maryland may actually be the longest continuously serving appellate Court in the United States, almost 40 years longer than Pennslyvania.
Regardless, I think as part of the change, Maryland can do what Virginia adopted a few years ago, and not terribly costly, for a joint committee including input from the State Archivist and State Law Librarian, to have a sophisticated web page outlining that history. That can then provide a crucial link between the past, present, and future.
As to the Court of Special Appeals…part of the confusion in figuring what to do with the “Maryland Court of Special Appeals” (Md-COSA) as a name, is that virtually all “Intermediate Appellate Courts” list their names….wait for it…as the [Name of the State] “Court of Appeals!”
Adopting Occam’s Razor at this point, since under these circumstances, virtually any name given will create confusion because of the378 year history of a “Court of Appeals of Maryland” as Maryland’s High Court, I think the best solution would be Hawaii’s method since 1979, and call it eiter the “Maryland Intermediate Court of Appeals” or “Maryland Intermediate Appellate Court”. Yes, it doesn’t roll off the tongue, but it’s accurate and reduces confusion, in a pareto optimal way.