Can the Maryland legislature give medical malpractice defendants an automatic right to move their case to a different court?

Plain-English summary

A legislative staff member asked the Attorney General whether any law or constitutional provision would stop the General Assembly from giving defendants in medical malpractice lawsuits an automatic right to move their case to a different court. Before 1980, Maryland's Constitution gave civil litigants generally an automatic right to such a change of venue, but the Court of Appeals struck that provision down in 1975 because of how Baltimore City's old multi-court structure made the "automatic" removal meaningless there while it worked as a real removal everywhere else, violating equal protection.

The opinion concluded that, after Baltimore City's courts were consolidated into one circuit court in 1980, the specific equal-protection defect that doomed the old automatic removal provision no longer existed. But the 1980 constitutional amendments had already replaced the automatic right with a discretionary one, so as the Constitution then stood, the Legislature could not create a new automatic removal right for medical malpractice defendants by ordinary statute. If the Constitution were amended again to restore an automatic removal right, the opinion concluded that neither the state nor federal constitution would then bar the Legislature from enacting such legislation.

Currency note

This opinion was issued in 2003. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule or constitutional interpretation mentioned here.

Common questions

Did a 2003 Maryland opinion say a law could give medical malpractice defendants an automatic right to change venue? No. The opinion concluded that, under the Maryland Constitution as it then stood, the Legislature could not create an automatic right of removal for medical malpractice defendants; venue changes remained a matter of the court's discretion.

Did the opinion say Maryland once had an automatic right to change venue for all civil cases? Yes. The opinion explained that before 1980, the Maryland Constitution gave civil litigants generally an automatic right to move their case, but the Court of Appeals struck that provision down in 1975 because Baltimore City's then-existing multiple circuit-level courts made the "automatic" removal illusory there, unlike in the counties.

Did the opinion say a future constitutional amendment could restore an automatic venue-change right? Yes. The opinion concluded that because Baltimore City's courts had since been consolidated into a single circuit court, the original equal-protection problem no longer existed, so a new constitutional amendment restoring an automatic removal right would not violate the federal or state constitution.

Background and statutory framework

At the time of this opinion, Article IV, § 8 of the Maryland Constitution governed changes of venue in civil cases. Before 1980, that provision gave a party an automatic right to have their case transferred to another court simply by filing a sworn suggestion that they could not get a fair trial where the case was pending. In Davidson v. Miller, the Court of Appeals struck this provision down under the federal Equal Protection Clause because Baltimore City then had three separate circuit-level civil courts sharing the same judges and jury pool, so a defendant who removed a case within the city could end up back in front of the same jury pool, while removal from a county circuit court reliably produced a new jury from a different locality.

In response, the General Assembly proposed, and voters ratified in 1980, two constitutional amendments: one consolidating Baltimore City's circuit-level courts into a single court, and another replacing the automatic removal right with a discretionary one requiring a party to satisfy the court that there was a reasonable basis to believe a fair trial could not be had. The opinion reasoned that the consolidation of Baltimore City's courts removed the specific equal-protection problem identified in Davidson, meaning a future amendment reinstating an automatic removal right would be constitutionally permissible, even though the current, already-amended Constitution required a discretionary showing rather than an automatic right.

Citations and references

Statutes and constitutional provisions:

• Maryland Constitution, Article IV, § 8, governing changes of venue in civil actions
• Md. Rule 2-327(c)-(d), permitting discretionary changes of venue for convenience of parties and witnesses or common questions of law or fact
• Courts & Judicial Proceedings Article §§ 3-2A-06(h), 6-201, governing venue for medical malpractice actions

Cases:

• Davidson v. Miller, 276 Md. 54, 344 A.2d 422 (1975), holding the pre-1980 automatic removal provision unconstitutional under the federal Equal Protection Clause
• Perkins v. Eskridge, 278 Md. 619, 366 A.2d 21 (1976), holding that the state constitutional removal provision retained enough force to bar a contrary state statute even after being found unconstitutional under the federal constitution
• Andrews v. Governor, 294 Md. 285, 286-88, 449 A.2d 1144 (1982), summarizing the 1980 constitutional amendments responding to Davidson
• Cobrand v. Adventist Health Care, Inc., 149 Md. App. 431, 816 A.2d 117 (2003), applying the discretionary venue-change rule

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/2003/88oag177.pdf

Original opinion text

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177

CONSTITUTIONAL LAW

COURTS AND JUDGES – MEDICAL MALPRACTICE – WHETHER LEGISLATURE MAY CREATE ABSOLUTE
RIGHT TO CHANGE OF VENUE FOR DEFENDANTS IN MEDICAL MALPRACTICE ACTIONS

December 9, 2003

Mr. Kenneth Masters
Chief Legislative Office

You have asked for our opinion whether any statute or constitutional provision prevents the General Assembly from enacting legislation that would permit a defendant in a medical malpractice action to request or compel a change of venue as a matter of right.

In our opinion, the Maryland Constitution precludes the Legislature from enacting legislation that confers an automatic right of removal for a defendant in a medical malpractice action. If the State Constitution were amended to eliminate that obstacle, no other constitutional or statutory provision would preclude the enactment of such legislation.

I

Discussion

A. Constitutional Provisions

Prior to 1980, the State Constitution conferred on civil litigants an automatic right to a change of venue. In particular, it provided, in pertinent part:

The parties to any cause may submit the same to the court for determination without the aid of a jury, and in all suits or actions at law, ... upon a suggestion in writing under oath of either of the parties ... that such party cannot have a fair and impartial trial in the court in which the same may be pending, the said court

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shall order and direct the record of proceedings in such suit or action ... to be transmitted to some other court having jurisdiction in such case for trial ... and the General Assembly shall make such modification of existing law as may be necessary to regulate and give force to this provision.

Maryland Constitution, Article IV, §8 (Constitution of 1867, as amended by Chapter 364, Laws of Maryland 1874 ratified by the voters November 2, 1875). As is evident, if a defendant requested removal, the court was obliged to transfer the case to another court.

In 1975, the Court of Appeals held that this provision was unconstitutional under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. Davidson v. Miller, 276 Md. 54, 344 A.2d 422 (1975). The Court noted that, on its face, the provision appeared to give all civil law litigants one automatic right of removal from the court in which the action was originally filed. However, in reality, the provision treated those subject to suit in Baltimore City differently than those sued in the counties because of the unique court structure in the city at that time.

In particular, when the right of removal was exercised in the circuit courts of any of the 23 counties, the case would be transferred to another county or Baltimore City.1 However, there were at that time three civil common law circuit-level courts in Baltimore City, staffed by the same judges and drawing upon the same jury pool. The Court summarized the consequences of this court organization on the right of removal:

As a result, while removal from a county circuit court necessarily places the case in the circuit court of another county or Baltimore City, guaranteeing a new jury selected from an entirely different locality, when the case originates in one of the circuit-level civil law courts in Baltimore City and the constitutionally provided automatic right of removal in civil cases is utilized, then it is

1
The choice of venue was left to the discretion of the judge originally assigned to the case. Davidson, 276 Md. at 65.

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satisfied if the judge so exercises his discretion ... simply by a transferral from that court to another common law court in
Baltimore City.... This can and sometimes does result in the case being tried by a jury drawn from the same panel the litigant attempted to avoid. In reality, then, usually no removal whatsoever takes place except one strictly on paper ....

276 Md. at 66-67 (footnote omitted). The Court held that there was no rational basis for the difference in treatment of litigants in Baltimore City compared to those in other jurisdictions in the State and that the automatic removal provision of Article IV, §8 therefore violated the Equal Protection Clause. 276 Md. at 82.

In response to the Davidson decision, the Legislature passed two amendments to the State Constitution, which were both ratified by the voters on November 4, 1980. Chapters 523, 524, Laws of Maryland 1980.2 One amendment effected the consolidation of the various circuit-level courts in Baltimore City, thus harmonizing the structure of its circuit court with those in the counties. The other amendment eliminated the language in Article IV, §8, struck down in Davidson, that conferred an automatic right of removal in civil cases, and replaced it with a provision entrusting the decision on removal to the discretion of the court. See Andrews v. Governor, 294 Md. 285, 286-88, 449 A.2d 1144 (1982) (summarizing 1980 constitutional amendments). The change of venue provision was made discretionary with the court out of a concern that an absolute right of removal would result in a large number of petitions to remove cases out of Baltimore City to the detriment of judicial efficiency and minority litigants. See Andrews, 294 Md. at 299-300 (summarizing legislative history of constitutional amendment).

2
The Legislature initially reacted to Davidson by enacting §6-204 of the Courts and Judicial Proceedings Article, which granted all litigants in certain types of actions an automatic right of removal to another county. However, the Court of Appeals held that Article IV, §8 of the State Constitution, even though it violated the federal constitution, retained sufficient vitality to prevent the enactment of contradictory State legislation such as §6-204. See Perkins v. Eskridge, 278 Md. 619, 366 A.2d 21 (1976).

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As a result of the 1980 amendments, the removal provision of the State Constitution now provides, in pertinent part:

[I]n all suits or actions at law ... pending in any of the courts of law in this State which have jurisdiction over the cause or case, in addition to the suggestion in writing of either of the parties to the cause or case that the party cannot have a fair and impartial trial in the court in which the cause or case may be pending, it shall be necessary for the party making the suggestion to make it satisfactorily appear to the court that the suggestion is true, or that there is reasonable ground for the same; and thereupon the court shall order and direct the record of the proceedings in the cause or case to be transmitted to some other court, having jurisdiction in the cause or case, for trial....

Article IV, §8(c) (2003 Repl. Vol.) (emphasis added). Thus, a party who invokes the removal provision of the State Constitution must convince the court that there is a reasonable basis for believing that the party will not receive a fair and impartial trial in the jurisdiction in which the case was filed. Neither party has an absolute right to a change of venue. The Maryland Rules also allow a circuit court to grant a change of venue for other reasons. See Rule 2-327(c)-(d) (discretionary changes of venue permitted for "convenience of the parties and witnesses" and when different actions involve common questions of law or fact); Cobrand v. Adventist Health Care, Inc. 149 Md. App. 431, 816 A.2d 117 (2003) (applying rule).

In our view, Article IV, §8 could be amended to allow for an automatic right of removal without offending the federal constitution. There is now only one circuit court in Baltimore City and there thus would be no difference in treatment between litigants who would seek removal from Baltimore City and those who would seek removal from other jurisdictions. An automatic removal right would thus not raise the equal protection concerns that caused the Court of Appeals in Davidson to hold the former right of removal unconstitutional.

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B. Statutory Provisions

Venue of medical malpractice actions is determined by the statutes governing civil actions. See Annotated Code of Maryland, Courts & Judicial Proceedings Article, §§3-2A-06(h), 6-201. No statute currently addresses the removal of medical malpractice actions from one jurisdiction to another. In any event, the existence of such a statute would not preclude the General Assembly from enacting a statutory right of removal if permissible under the State Constitution.

II

Conclusion

In our opinion, Article IV, §8 of the Maryland Constitution precludes the Legislature from conferring by statute an automatic right of removal on defendants in medical malpractice actions. If that provision were amended to allow for an automatic change of venue, neither the State nor federal constitution would preclude the enactment of such legislation.

J. Joseph Curran, Jr.
Attorney General

Robert N. McDonald
Chief Counsel
Opinions and Advice