As most people know, in November 2022, Maryland voters approved a constitutional amendment changing the names of the appellate courts. On December 14, 2022, the switch flipped—the Court of Appeals became the Supreme Court of Maryland, and the Court of Special Appeals became the Appellate Court of Maryland. Judges of the Supreme Court of Maryland became "Justices."
Whether you welcomed this change because it reduces confusion ("wait, so the Court of Special Appeals hears everything?") or you were fine with the old names and saw no reason to upset the apple cart, the deed is done. Supreme Court of Maryland and Appellate Court of Maryland it is. The only question at this point is one that Steve Klepper wrote about back in December: how to refer to the appellate courts in the past tense?
When Steve wrote his post, the name change was not yet official, and the courts had offered no guidance. We thought perhaps there would be an official policy statement, or a style guide expressing preferences based upon the circumstances. To my knowledge, no such policy or statement of preferences has been issued. What we have now that we didn't have in December, however, is opinions written by the courts under the new name regime. I have done an unofficial survey of the opinions (published and unpublished) written between December 14, 2022 and February 8, 2023. Here is what I learned:
1. A footnote is your friend. My informal and unofficial research indicates that a footnote is the most common method for dealing with any potential confusion based on the name change. On December 14th, immediately after the change became official, both appellate courts put an asterisk after the new name of the Court on the front page of every opinion with a footnote that reads: "At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Appeals of Maryland [Court of Special Appeals of Maryland] to the Supreme Court of Maryland [Appellate Court of Maryland]. The name change took effect on December 14, 2022." As of February 23rd, these footnotes were still appearing on all reported and unreported opinions.
A number of judges have been dropping footnotes in the bodies of their opinions as well. In a reported opinion written by Judge Leahy, the Court dropped a footnote identical to the standard front-page footnote at the first mention of the Appellate Court of Maryland. Interestingly, several judges have used footnotes to alert the reader of the name change while continuing to refer to an appellate court by its previous name. This has happened in a variety of circumstances. In another reported opinion of the Appellate Court of Maryland, Judge Arthur, while discussing the procedural history of the case, quoted questions presented in a petition for writ of certiorari filed before the name change. The Court did not alter the text of the questions (which asked if the Court of Special Appeals erred in its decision) but dropped a footnote alerting the reader that the Court's name had changed since the time of the petition. The Supreme Court did the same thing when referring to a certified question from the United States District Court for the District of Maryland that was issued before the name change.
In several other opinions, both reported and unreported, when discussing cases issued prior to the name change, the author referred to the court using its historical name and dropped a footnote explaining that the name had since been changed. In a few cases, once the Court alerted the reader of the name change, it continued to use the historical name without reference to the new name when discussing previously issued case law. In one unreported opinion, Judge Deborah Eyler used the footnote method when discussing an action taken by the "Chief Judge of the Court of Appeals." In that case, the footnote simply read: "[o]n December 14, 2022, the Court of Appeals was renamed the Supreme Court of Maryland."
2. A parenthetical can also work. A close second for addressing the name change is a parenthetical. Whether telling the reader what the court used to becalled or what it is called now, a number of judges have chosen to relay this information via a parenthetical. Judge Zarnoch, in reported opinion of the Appellate Court, introduced a discussion of a 1973 opinion by saying, "The Supreme Court of Maryland (then Court of Appeals) . . . ." Several unreported opinions have taken this same approach when talking about the Appellate Court of Maryland, noting in a parenthetical that it was "(at the time named the Court of Special Appeals of Maryland)."
The award for most thorough discussion of the name change goes to Chief Judge Wells, who took a parenthetical/footnote combination approach when referring to the pandemic court closures in a February 2023 reported opinion. Chief Judge Wells wrote that closures were "ordered by the Honorable Mary Ellen Barbera, at the time, the Chief Judge of the Court of Appeals of Maryland (now called the Supreme Court of Maryland)." Chief Judge Wells then dropped a footnote not only explaining the constitutional amendment that effectuated the name change but also quoting Maryland Rule 1‑101.1(a) and explaining that the judges of the Supreme Court of Maryland are now called "Justices."
3. Or you can just pretend that it isn't happening. Still refer to McDaniel as Western Maryland College? Stevenson as Villa Julie? That football team in Indianapolis as the Baltimore Colts? Then this method may be for you. In a handful of opinions, issued at various time between December 14th and February 8th, reported and unreported, judges have referred to the appellate courts using their old names without any acknowledgement of the name change at all. Usually when this has happened the Court is quoting from a prior opinion or a pleading in the case that was filed prior to December 14th. Occasionally, it occurs when the author is referring to the Court that issued an opinion before the name change. Whether this is a case of old habits dying hard or a conscious decision to refer to the courts by their old names when quoting or referring to an old opinion remains to be seen.
At the end of the day, how judges and advocates handle the name change appears to be a matter of personal preference. My practice has been to drop a footnote explaining the referendum and constitutional amendment. Now that it has been a few months, I plan to switch to a simple parenthetical alerting the reader of the name change, but only when it is necessary for clarity. Like all changes large and small, it's not so bad once you get used to it.
Carrie Williams is a member of the firm's Appellate Practice Group. She represents clients across the firm's many practice groups in pre-trial and appellate matters. She can be reached at email@example.com.
This post originally appeared on the Maryland Appellate Blog, the blog of the Maryland State Bar Association Litigation Section.