Can Maryland require a circuit court judge to actually live in a specific county, not just anywhere in the multi-county judicial circuit?

Plain-English summary

Maryland's State Court Administrator asked the Attorney General whether a lawyer who lived in the Seventh Judicial Circuit, but not specifically in Prince George's County, could run for a vacant Circuit Court seat that state statute reserved for Prince George's County residents. The candidate argued that the Maryland Constitution itself only required actual county residency for 4 of the county's 13 circuit judgeships, so the other 9, including the vacant one, should only require residency somewhere in the broader judicial circuit. The opinion rejected that argument and upheld the statute, concluding that the Maryland Constitution sets only a minimum number of judges who must reside in a particular county, while separately authorizing the General Assembly to require county residency for additional judgeships it creates by ordinary statute, which is exactly what the legislature had done for all 13 Prince George's County seats.

Currency note

This opinion was issued in 1982. 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, deadline, or remedy mentioned here.

The opinion applied Article IV of the Maryland Constitution and section 1-503 of the Courts and Judicial Proceedings Article as they stood in 1982, along with a detailed legislative history of amendments to Article IV, section 21 going back to 1954. The specific judgeship allocations and residency statutes discussed here, including the count of resident judgeships for Prince George's County, have likely changed further since 1982 as Maryland's judiciary has grown. Anyone researching current residency requirements for a Maryland circuit judgeship should verify the current text of Article IV and the Courts and Judicial Proceedings Article rather than relying on this opinion's 1982 count and analysis.

Common questions

Does the Maryland Constitution itself require every circuit judge to live in a specific county?
Not directly, according to this opinion. The Constitution's Article IV, section 21(b) sets only a minimum number of judges who must reside in specified counties, such as "at least four resident in Prince George's County." The opinion read that minimum as a floor, not a ceiling, that the legislature was free to exceed.

So where did the requirement for all 13 Prince George's County seats to be county residents come from?
From an ordinary statute, section 1-503 of the Courts and Judicial Proceedings Article, not the Constitution itself. The opinion traced a 1954 constitutional amendment that first gave the General Assembly power to create additional resident judgeships by law, and found a consistent, decades-long practice of the legislature doing exactly that, creating judgeships tied to county residency well beyond the constitutional minimums.

Did any court case support reading the residency requirement this way?
Yes. The opinion relied heavily on Boyer v. Thurston, a 1967 Court of Appeals decision, which it read as recognizing that after the 1954 constitutional amendment, circuit judgeships were understood to be held on a county basis, including judgeships that had been created by statute rather than by the Constitution's own minimums.

Could the legislature have gone the other way and required only circuit-wide residency for the extra seats?
According to the opinion, yes, the General Assembly had discretion to create additional circuit court judgeships tied to either a county or an entire judicial circuit, but in Prince George's County it had consistently chosen the county option, and the constitutional residency clause was written flexibly enough to accommodate whichever choice the legislature made.

Background and statutory framework

The dispute centered on a vacancy created by the resignation of a resident circuit court judge from Prince George's County. Section 1-503 of the Courts and Judicial Proceedings Article allocated 13 resident judgeships to Prince George's County within the Seventh Judicial Circuit (which also includes Charles, Calvert, and St. Mary's Counties), and the vacancy was one of those 13 seats. A prospective candidate who lived in the Seventh Judicial Circuit, but not in Prince George's County itself, argued that only 4 of those 13 seats were required by Article IV, section 21(b) of the Constitution to be filled by actual county residents, so the other 9, absent a specific constitutional mandate, should only require residency in the judicial circuit under Article IV, section 2.

The opinion rejected this argument on three grounds. First, it read the plain language of Article IV, section 21(a) and (b): while subsection (b) sets minimum numbers of resident judges for certain counties, including "at least four resident in Prince George's County," subsection (a) separately gives the General Assembly authority to determine by law the total number of circuit judges "in each county and circuit," which the opinion read as authorizing the legislature to create additional county-resident judgeships beyond the constitutional floor. The opinion traced this authority to a 1954 constitutional amendment (Chapter 607, Laws of Maryland 1953, ratified 1954) that, for the first time, let the General Assembly increase or decrease the number of judges for particular counties, and cataloged a consistent pattern since then of the legislature creating additional resident county judgeships by ordinary statute, including in Baltimore County (1955), Anne Arundel County (1966), and, by the time of this opinion, a 1982 statute increasing Prince George's County's resident judgeships from 13 to 14 effective July 1, 1982. The opinion applied the presumption that a continuous and uniform legislative construction of a constitutional provision, especially one reinforced by the legislature separately amending the Constitution's own minimums on multiple occasions while also creating judgeships by ordinary statute in the same sessions, carries strong interpretive weight, citing Humphrey v. Walls.

Second, the opinion relied on the Court of Appeals' decision in Boyer v. Thurston, which addressed who had authority to appoint an interim court clerk in Washington County and, in doing so, described the 1954 constitutional amendment as a "most significant change" that shifted circuit judgeships from being held at large within a judicial circuit to being held within a particular resident county. The opinion noted that in Boyer, one of the two relevant Washington County judgeships had been created by the Constitution's own minimum and the other by ordinary statute, yet the Court of Appeals treated both as "resident judges" holding office within their county, which the opinion read as judicial endorsement of the General Assembly's power to create county-resident judgeships by statute.

Third, the opinion addressed Article IV, section 2, which requires judges to reside in the county or judicial circuit "for which they may be, respectively, elected or appointed." It explained that section 2 was amended in 1966 to add a reference to "county" residency primarily to accommodate the creation of the Court of Special Appeals, citing Walston v. Sun Cab Co., and that this amendment was intended to conform section 2 to section 21 rather than to limit the legislature's established practice of creating county-resident judgeships. Read together, the opinion concluded, Article IV, section 21 gives the General Assembly discretion to create additional circuit judgeships tied to either a county or an entire circuit, while Article IV, section 2 simply specifies the minimum residency period, six months, in whichever locality the legislature has chosen for that seat.

Citations

Statutes:

• Md. Const. art. IV, §1
• Md. Const. art. IV, §2
• Md. Const. art. IV, §21(a)
• Md. Const. art. IV, §21(b)
• Md. Const. art. IV, §3
• Md. Const. art. IV, §19
• Md. Const. art. IV, §14
• Courts and Judicial Proceedings Article §1-503
• Courts and Judicial Proceedings Article §1-402
• Chapter 607, Laws of Maryland 1953
• Chapter 542, Laws of Maryland 1976
• Chapter 10, Laws of Maryland 1966
• Chapter 132, Laws of Maryland 1982
• Chapter 445, Laws of Maryland 1955
• Chapter 231, Laws of Maryland 1959
• Chapter 642, Laws of Maryland 1959
• Chapter 338, Laws of Maryland 1966
• Chapter 372, Laws of Maryland 1966
• Chapter 854, Laws of Maryland 1961
• former Article 26, §§32 through 32J

Cases:

• Kadan v. Board of Supervisors of Elections, 273 Md. 406 (1974)
• Boyer v. Thurston, 247 Md. 279 (1967)
• Humphrey v. Walls, 169 Md. 292, 299 (1936)
• Walston v. Sun Cab Co., 267 Md. 559, 566-67 (1973)

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/1982/Volume67_1982.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Judiciary—Circuit Courts—Judicial Residency Requirements—Legislative Creation of Resident County Judges Not Unconstitutional

June 29, 1982

William H. Adkins II, Esq.
State Court Administrator

You have requested our opinion on the constitutionality of the statutory residency requirement for judges of the Circuit Court for Prince George's County, as specified in §1-503 of the Courts and Judicial Proceedings Article of the Maryland Code. Specifically, you ask whether a member of the bar who resides in the Seventh Judicial Circuit, but not in Prince George's County, is eligible to run for election to fill a vacancy in a seat that, by statute but not by express constitutional mandate, is limited to residents of Prince George's County.

For the reasons given below, it is our opinion that §1-503 of the Courts Article is constitutional, and a person who is not a resident of Prince George's County is not an eligible candidate to fill the vacancy in question.

I
The Constitutional Provisions

The resolution of your inquiry centers on the proper interpretation of certain provisions of the Maryland Constitution that relate to the residency of judges.

Article IV, §1 of the Constitution specifies the various courts in which the "[t]he Judicial power of this State is vested". These include "a Court of Appeals, such intermediate courts of appeal as the General Assembly may create by law, Circuit Courts, . . . and a District Court".

As to the general qualifications, including residency, of the judges of these various courts, Article IV, §2 of the Constitution provides in relevant part:

"The Judges of all of the said Courts shall be citizens of the State of Maryland, and qualified voters under this Constitution, and shall have resided therein not less than five years, and not less than six months next preceding their election, or appointment, as the case may be, in the city, county, district, judicial circuit, intermediate appellate judicial circuit or appellate judicial circuit for which they may be, respectively, elected or appointed." (Emphasis added.)1

1 In its enumeration of the courts of this State, Article IV, §1 also refers to the Orphans' Courts. However, the judges of the Orphans' Courts are not subject to the qualifications set forth in Article IV, §2. Kadan v. Board of Supervisors of Elections, 273 Md. 406 (1974).

As to residency requirements for circuit court judges in particular, Article IV, §21(a) and (b) of the Constitution provides:

"(a) Subject to the provisions of subsection (b) the General Assembly shall determine by law the number of judges of the circuit court in each county and circuit. These judges shall be selected in accordance with Sections 3 and 5 of this Article. (b) There shall be at least four circuit court judges resident in each circuit, and at least one circuit court judge shall be resident in each county. There shall be at least two such judges resident in Anne Arundel County, at least three resident in Baltimore County, at least four resident in Prince George's County, and at least five resident in Montgomery County." (Emphasis added.)

II
The Vacancy in Question

Your inquiry concerns a member of the bar who wants to run for election to fill a vacancy created last year by the resignation of a resident circuit court judge from Prince George's County. This prospective candidate resides in the Seventh Judicial Circuit, which consists of Prince George's, Charles, Calvert, and St. Mary's Counties,2 but he does not reside in Prince George's County.

2 See Article IV, §19 of the Constitution.

Section 1-503(a) of the Courts Article specifies the "number of resident judges", "including the judge or judges provided for by the Constitution", for "each county in the first seven judicial circuits". For each county in the Seventh Judicial Circuit, the statute specifies the following number of resident judges: Calvert, 1; St. Mary's, 1; Charles, 2; Prince George's, 13.3

3 Chapter 132, Laws of Maryland 1982, increased the number of resident circuit court judges in Prince George's County to 14, effective July 1, 1982.

The vacancy in question is in one of the 13 positions allocated by this statute to residents of Prince George's County. The individual in question, while not a resident of Prince George's County, nevertheless contends that he is eligible to be a candidate for and, if elected, to fill this vacancy.

He first argues that, under Article IV, §21(b) of the Constitution, only 4 of the 13 judgeships alloted by the General Assembly to the Prince George's County Circuit Court require actual residency in the County. He further argues that, except for these four seats, Article IV, §2 of the Constitution must be read to require residency only in the judicial circuit, and not in any particular county within that circuit. Thus, he concludes, to the extent that §1-503 requires county residency for all 13 judgeships, it is unconstitutional.

In our view, this reading is contradicted by the plain language of Article IV, §21, the history of that provision, and the decision of the Court of Appeals in Boyer v. Thurston, 247 Md. 279 (1967).

III
Prior Implementation of Article IV, §21

Article IV, §21(a) expressly provides that the General Assembly shall determine "by law" the number of judges of the circuit court "in each county" as well as "in each . . . circuit". The additional mandate in §21(b) that there be "at least" a specified number of resident judges in certain counties, including Prince George's County, distinctly and, we think, quite intentionally refers to but the minimum number of resident judges to be so provided for by law, clearly implying that the General Assembly may exceed that minimum number.

This implied power to create resident judgeships by statute, as part of the express duty to determine by law the number of judges "in each county", was conferred on the General Assembly by a 1954 amendment to the Constitution: Chapter 607, Laws of Maryland 1953, ratified November 2, 1954. Until that time, judges were elected from their respective judicial circuits by the qualified voters of the entire circuit, and there was no constitutional requirement that a judge be selected from any particular county. See Boyer v. Thurston, 247 Md. 279, 285 (1967). The 1954 amendment modified §21 to require that there be "at least" one resident judge in each county of the Third, Fourth, Fifth, Sixth, and Seventh Judicial Circuits, with an additional minimum number of resident judges for certain specified counties, including "not less than" two judges resident in Prince George's County. It also amended §21 to permit the General Assembly, for the first time, to increase or, subject to the minimum requirements there set forth, decrease "the number of judges ... for any of the counties".4

4 In addition, the 1954 amendment enacted a new §3 to Article IV to provide that, in each county of the five affected circuits, all circuit court judges were to be elected "by the qualified voters ... of [that] county". In 1976, the new requirements established by the 1954 amendment in §§3 and 21 were extended to all counties and all circuits. Chapter 542, Laws of Maryland 1976, ratified November 2, 1976.

The General Assembly wasted little time in exercising this authority to increase the number of resident judges in a particular county. See, e.g., Chapter 445, Laws of Maryland 1955, which provided for a new resident judge for the Baltimore County Circuit Court, in addition to the minimum number of resident judges already specified in Article IV, §21 of the Constitution. And, over the last quarter century, the General Assembly has repeatedly exercised the power to establish resident judgeships in excess of the minimums set forth in Article IV, §21. See present §1-503 of the Courts Article and its predecessor statute, former Article 26, §§32 through 32J, as enacted and repeatedly amended over the years.5

5 Until 1955, the General Assembly had never increased the number of judgeships by statute. In September, 1952, Attorney General Hammond advised the Commission to Study the Judiciary of Maryland (the "Burke Commission") that additional judgeships could be created by statute and need not be created by constitutional amendment. 37 Opinions of the Attorney General 237 (1952). Although the Commission had previously been divided on the issue, it informed the Governor in January, 1953, of the Attorney General's views. See Report of the Commission to Study the Judiciary of Maryland 13 (1953). Nevertheless, the General Assembly waited until after Chapter 607, Laws of Maryland 1953, was ratified by the voters in 1954 before exercising its authority to create a judgeship by statute. Interestingly, although the Burke Commission recommended an increase in judgeships (see Report at 11), it proposed no significant change to Article IV, §21 of the Constitution.

Ordinarily, the construction placed continuously and uniformly on a particular provision of the Constitution by the General Assembly furnishes "a very strong presumption" that its view of the intent of the provision is correct. See Humphrey v. Walls, 169 Md. 292, 299 (1936). In this case, the General Assembly's construction of Article IV, §21, as authorizing it to create additional resident judgeships, is particularly compelling: On at least two separate occasions, the General Assembly proposed a constitutional amendment to Article IV, §21 to increase the minimum number of required resident judgeships for certain counties while, at the very same Session, creating by statute additional resident judgeships, in excess of the number already required by §21, for other counties. In 1959, for example, the General Assembly passed both Chapter 231, Laws of Maryland 1959 (a statute adding a resident judge in Baltimore County) and Chapter 642, Laws of Maryland 1959 (a constitutional amendment, ratified November 8, 1960, increasing the minimum number of resident judges in Prince George's County). Similarly, in 1966, the General Assembly passed both Chapter 338, Laws of Maryland 1966 (a statute adding a resident judge in Anne Arundel County) and Chapter 372, Laws of Maryland 1966 (a constitutional amendment, ratified November 8, 1966, setting a minimum number of resident judges for counties in the Second Judicial Circuit).6

6 The General Assembly's practice of sometimes increasing judgeships by statute and, at other times, by constitutional amendment has not gone unnoticed. See E. M. Byrd, Jr., The Judicial Process in Maryland 39-40 (1961), noted in Boyer v. Thurston, 247 Md. 279, 287 (1967).

This history clearly indicates a contemporaneous, long-standing, and consistent understanding by the General Assembly, as well as by the voters who ratified the various related constitutional amendments passed by the General Assembly, that (i) the numbers set by Article IV, §21 are the minimum, not the maximum, number of resident judges for a county, and (ii) the General Assembly is free, as it has done in §1-503 of the Courts Article, to create new circuit court judgeships that are also subject to a county residency requirement.

IV
The Boyer Decision

This view of Article IV, §21 finds additional support in the decision of the Court of Appeals in Boyer v. Thurston, 247 Md. 279 (1967). The issue in that case was whether the appointment of an interim clerk for the Circuit Court of Washington County was to be made by the judges of the Fourth Judicial Circuit or by the resident judges in Washington County.

In reviewing the history of Article IV, §21, Judge Barnes described the 1954 amendment to that section as effecting a "most significant change". 247 Md. at 286.7 More specifically, Judge Barnes noted that:

"The amendment had an important effect on the nature of judicial offices in the five judicial circuits mentioned. The circuit judges no longer held office at large within the judicial circuits, but hold office within the particular county in which they reside, and are elected to office by the qualified voters of each county, rather than by the voters of the entire judicial circuit as previously provided. This amendment did not deprive the judges in the five judicial circuits mentioned from having jurisdiction throughout the boundary of their respective judicial circuits, but after the amendment, each judge held office within the county in which he was a resident and for the individual Circuit Court in which he usually presided." 247 Md. at 286-87 (original emphasis deleted).

7 In 40 Opinions of the Attorney General 276 (1955), the Attorney General similarly described the 1954 amendment as a "far-reaching change in Maryland's judicial system".

Thus, in construing the words "Judges of said Court" (as used in then Article IV, §25 to refer to those designated to fill a vacancy in the clerk's office), Judge Barnes held:

"Prior to the [1954 amendment to §21,] the words, of necessity, meant the judges of the respective judicial circuits; after the amendment changing the holding of judicial office from a judicial circuit to a county basis, they meant the resident judge or judges in each county." 247 Md. at 287-88 (original emphasis deleted).

The Court ultimately concluded that the then two "resident judges" for Washington County were the appropriate appointing authority, both having to agree on the appointment. 247 Md. at 296. Notably, although one of those two judicial offices had been created by Article IV, §21 of the Constitution, the other had been created by statute, Chapter 854, Laws of Maryland 1961. Thus, in reaching the result that it did, and by repeatedly characterizing the latter, statutorily created, office as that of a "resident judge" holding office "within the county in which he was a resident", the Court clearly recognized and endorsed the power of the General Assembly to statutorily create that judicial office as one requiring residency in the county.

V
Effect of Article IV, §2

The language of Article IV, §2, which requires a judge to reside "in the . . . county . . . [or] judicial circuit . . . for which [he or she] may be, respectively, elected or appointed", does not require a contrary result.

Until 1966, Article IV, §2, while generally applicable to the judges of all State courts, nevertheless referred only to required residency "in the Judicial Circuit". As to circuit court judges, however, that reference was obviously superseded by the 1954 amendment to §21, which added certain, more limited, county residency requirements to the Constitution. Moreover, as noted above, the General Assembly has consistently acted since 1954 to statutorily create resident circuit court judgeships for particular counties.8

8 The 1954 amendment to Article IV, §21 specifically provided that it prevailed over any other inconsistent provision of the Constitution. See Boyer v. Thurston, 247 Md. 279, 287 (1967). That specific provision continued for over two decades, until its deletion by Chapter 542, Laws of Maryland 1976, ratified November 2, 1976. As noted below, Article IV, §2 was amended in 1966 to add a conforming reference to "county". It was only after, and, presumably, in reliance on, this conforming amendment that the General Assembly saw fit to delete the now obsolete provision in §21 regarding conflicts with other provisions.

In 1966, Article IV, §2 was amended to refer, inter alia, to "county" residency. Chapter 10, Laws of Maryland 1966, ratified November 8, 1966. It is apparent that the 1966 constitutional amendment, even while retaining the preexisting reference to "judicial circuit" residency, was not intended to restrict, for the first time in 11 years, the General Assembly's practice of creating by statute resident judgeships for a county. Rather, that constitutional amendment was enacted primarily for the purpose of authorizing the creation of the Court of Special Appeals. See Walston v. Sun Cab Co., 267 Md. 559, 566-67 (1973). In our view, the 1966 change in residency language was designed simply to conform §2 to §21; and, by adding a reference to "county", it reflected, even affirmed, the preexisting and continuing practice of statutorily establishing resident circuit court judgeships for a particular county.9

9 The judges of the Court of Appeals are required to be residents of "their respective Appellate Judicial Circuits" [Article IV, §14], and the judges of the Court of Special Appeals are to be chosen from among residents of those same circuits [§1-402 of the Courts Article]. Hence, the reference in §2 to "county" refers only to circuit court judges and, in the words of the title to the 1966 amendment, was added simply "to correct [an] error." Indeed, it would be beyond the scope of that title, which contains no reference at all to circuit courts or circuit court judges, to also read the 1966 amendment as somehow limiting the General Assembly's then existing powers under §21. See also note 8 above.

Clearly, under Article IV, §21, the General Assembly may create additional circuit court judgeships for either a county or an entire circuit, even though in practice it has uniformly adopted the former option rather than the latter. Article IV, §2, by referring in the alternative to both "county" and "judicial circuit", merely mirrors the two options available to the General Assembly in this regard; and, in doing so, it simply supplements Article IV, §21 by specifying the minimum requisite period of continued residency ("six months next preceding [the judge's] election ... or appointment") in the particular locality ("county [or] judicial circuit") from which the particular circuit court judge is required by law to be elected or appointed.

VI
Conclusion

In summary, it is our opinion that §1-503 of the Courts Article is constitutional. Accordingly, a candidate for a resident judgeship in Prince George's County must be a resident of that county for a period of at least six months immediately preceding his or her appointment or, as in this case, election.

Stephen H. Sachs, Attorney General
Robert A. Zarnoch, Assistant Attorney General
Avery Aisenstark
Principal Counsel,
Opinions and Advice