Talking About Maryland’s Appellate Courts in the Past Tense
By Steve Klepper (Twitter: @MDAppeal)
Last month, Maryland voters approved a constitutional amendment renaming our appellate courts—with the Court of Appeals becoming the Supreme Court of Maryland, and the Court of Special Appeals becoming the Appellate Court of Maryland. Judges of the Supreme Court of Maryland will now be “Justices.”
Since then, lawyers have kept asking me the same question: “If I’m discussing a pre-name-change decision, do I use the new names and titles?”
My answer is: “I don’t know, but do whatever feels most comfortable until the courts tell you otherwise.”
The pole star in these discussions is that the courts and judges will be exactly the same, except for the names and titles. They are not successor courts, and no one is getting a promotion. The situation is akin to a name-change at marriage (such that a prior name may appear with a “née” parenthetical) rather than a name change significant to gender identity, gender expression, or religion (in which case the name is retroactive unless the person freely and clearly tells you otherwise). There is nothing fraught about using the prior name.
This answer is fairly clear for a pending case or a judge who still sits by designation. A judge who retired from the Court of Appeals, will be a “Senior Justice” when sitting by designation, under a rule amendment scheduled for a vote on December 14, 2022.
But what happens when discussing a decision that Chief Judge Robert C. Murphy authored for the Court of Appeals in 1980? Does it become a decision that Chief Justice Robert C. Murphy authored for the Supreme Court of Maryland in 1980?
There is considerable room for reasonable minds to differ. The main concerns are clarity, consistency, and respect for history.
The rule need not be the same in all contexts. If I were writing a legal history article, I would use the prior names and titles, with a footnote or parenthetical about the new names. There, the history is the point. When drafting a brief, however, and I’m citing a case as precedent, I could see using the new names and titles retroactively to emphasize continuity. But if history looms large in a brief’s argument, the answer may be different.
We are likely to find out soon whether there is an official policy. The Supreme Court of Maryland will hold its monthly conference on December 14, the day the name change takes effect. Perhaps in the following days a footnote in an opinion will announce a policy. Or maybe different justices will take different approaches in their opinions—signaling that the only policy is “there is no policy.”
Unless and until the courts express a clear preference, however, I ask practitioners to take a deep breath and accept that they can only do whatever feels right under the circumstances. In the short term, no one will be confused or offended. In the long term, a standard practice will emerge, either formally or informally.
3 responses to “Talking About Maryland’s Appellate Courts in the Past Tense”
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- March 1, 2023 -
Another thought is simply, to take a relaxed approach, with expected reminders from the Maryland Court of Appeals in all their correspondence (soon to be Supreme Court of Maryland), and the issue will sort itself out within a year.
Chief Judge Robert Bell occasionally faced a litigant (such as in a self-represented AGC case), who would call him at the start “Mr. Chief Justice” (like in the United States Supreme Court) and Chief Judge Bell would remark with a line like “[t]here is no Justice [capitalized] in Maryland.” Amusing and perhaps a double entendre, but it corrected the litigant, but didn’t take it too personally.
As to how attorneys should handle the matter, it’s easy enough to now start using the proper name, substituting as a transitive logic matter. When directly quoting a few sentences of a previous decision, I could see different approaches. The simplest is to use ellipses, (i.e. “as the [Supreme Court of Maryland] held in….”] substituting the name with the updated name. Now, if there’s an announced preference given, to not have to use ellipses all the time, then the soon-to-be Supreme Court of Maryland could say it is unnecessary, just substitute it without the need for ellipses. Or perhaps, taking a relaxed approach, either method is fine for now.
I would point out, in my lengthy blog post on the Colonial Appellate Court history, which did a deep dive on Maryland, I suggested that it would be a relatively good time, to do an historical perspective on the Maryland Court of Appeals’ history, put it up online, with a joint commission with the State Librarian and State Archivist offices (and perhaps others). This would be similar to what Virginia has done, to explain its “name change history” since the 1600s. Maryland has virtually zero description on its website, while Virginia has a very nice interactive description on its website.
Correction to above…I meant use square brackets, not ellipses.