“A Supermajority of the Court Concurring”

By Steve Klepper

In today’s per curiam order dismissing certiorari as improvidently granted (colloquially, a “DIG” order) in Tonrey v. Towson University, the Supreme Court of the Maryland used a phrase that has never before appeared in its opinions and published orders: “a supermajority of the Court concurring.”

The phrase “a majority of the Court concurring” often appears in the Court’s per curiam orders (not just DIG orders) to indicate a non-unanimous vote.

So why a “supermajority” for a DIG order?

The explanation is an “aside” in a 2015 opinion by Judge Robert McDonald dissenting from the DIG order in People’s Ins. Couns. Div. v. State Farm Fire & Cas. Co., 442 Md. 55 (2015):

As an aside, I note that the five-vote majority in favor of dismissing this petition is the minimum that ought to be necessary for dismissing a petition. An explanation: Under the longstanding practice of this Court, consistent with the statute that sets forth our certiorari jurisdiction, a petition for certiorari is granted if three judges vote to do so (even if four judges do not favor granting the petition). See Inner Workings of the Court of Appeals of Maryland. If a petition, once so granted, could be immediately dismissed on an identical 4-3 vote, it would be at odds with the three-vote standard for granting petitions and with the statute that caps the requisite number of votes at three. See Maryland Code, Courts & Judicial Proceedings Article, § 12-203 (“The Court of Appeals may by rule provide for the number of its judges who must concur to grant the writ of certiorari in any case, but that number may not exceed three”) (emphasis added). The upshot is that we should not dismiss a petition as improvidently granted unless we do so by a supermajority vote of at least 5-2.

But why is “supermajority” first appearing a decade later? It is rare for a DIG order to note a dissent or use other language to indicate the vote was not unanimous. The last time a DIG order included the phrase “a majority of the Court concurring”—rather than identifying dissenters—was in 2013, before Judge McDonald’s 2015 dissent.