Department of Human Resources v. Howard (Ct. of Appeals)

Filed March 13, 2007. Opinion by Judge Glenn T. Harrell, Jr.

The issue facing the Court of Appeals was whether specially assigned retired judges could properly sit with the Court of Special Appeals ("CSA") during the hearing and decision of an appeal in banc. While taking pains to acknowledge the abilities and contributions of specially assigned judges, the court held that only the thirteen incumbent judges of the CSA could participate in the hearing and decision of in banc appeals.

The facts of the underlying appeal are not relevant to the issue before the court. After an appeal to the CSA had been noted and routinely assigned to a three-judge panel, the CSA invited the parties to submit the question at issue to the CSA in banc. In addition to the thirteen incumbent judges of the CSA, two specially assigned judges participated in the hearing and decision of the appeal. Following an eight to seven decision of the CSA, which generated a multiplicity of opinions, the Court of Appeals granted certiorari sua sponte, posing the additional question of the propriety of participation by the specially assigned judges.

In its analysis, the Court of Appeals traced the history of the CSA, examined the statutes creating the court and providing for in banc review, and examined the manner in which in banc review was handled by other courts. The Court of Appeals found that the underlying statute clearly and unambiguously stated that in banc review was to be conducted by "incumbent" judges, being those appointed by the Governor and confirmed by the Senate. Specially assigned judges did not meet this definition, and, therefore, could neither participate in the hearing nor decision of an in banc appeal. This result, the Court of Appeals held, is consistent with the policy reason for in banc review - permitting the incumbent judges of the CSA to control the jurisprudence of the court upon which they sit. The court expressly refused to simply disregard the votes of the specially assigned judges and treat the vote of the incumbent judges as the decision of the CSA. Instead, the decision of the CSA was vacated and the matter remanded for further proceedings.

The opinion is available in PDF format.