Did a Maryland judicial candidate's five years of state residency have to be the five years right before their election or appointment?

Plain-English summary

The State Court Administrator's office asked the Attorney General to explain a conclusion it had already been given informally: whether the Maryland Constitution's requirement that judges have "resided" in the State for at least five years could be satisfied by any five-year period of past residency, or had to be five continuous years immediately before the candidate's election or appointment. The opinion read Article IV, §2 closely and found that its phrase "next preceding their election, or appointment" grammatically modified only the separate six-month local residency requirement, not the five-year State residency requirement, so the plain text set no timing requirement for the State residency period. Tracing the provision's history from Maryland's 1864 and 1867 constitutional conventions, the opinion found that the framers of 1867 had deliberately deleted a "next preceding" qualifier that the 1864 Constitution had attached to the same five-year requirement, apparently to let Civil War veterans who had been absent from Maryland, including those who served the Confederacy, become eligible for judicial office despite their wartime absence. The opinion distinguished the one Court of Appeals case addressing a similar residency requirement for a different office, State's Attorney, as resting on different constitutional language, and concluded that a judicial candidate's five years of Maryland residency could come from any continuous five-year period in that candidate's past, though the five years still had to be continuous rather than pieced together from separate stints of residency.

Currency note

This opinion was issued in 1983. 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's conclusion rested entirely on the text and 1860s drafting history of Article IV, §2 of the Maryland Constitution, a provision the opinion noted had "not been construed by the courts" on this precise point. Maryland's judicial qualification provisions and any court decisions interpreting them may have changed since 1983; verify the current text of Article IV, §2 and any intervening case law before relying on any specific residency rule described here.

Common questions

Could someone become a Maryland judge if they had lived in Maryland for five years decades earlier, moved away, and then returned shortly before their appointment?
According to this opinion, yes, so long as that past five-year period was itself continuous. The opinion concluded that Article IV, §2's five-year State residency requirement was not tied to any particular timeframe relative to the appointment, unlike the separate six-month local residency requirement in the same sentence, which did have to immediately precede the election or appointment.

Why would Maryland's constitution require six months of local residency right before a judicial election but not require the five years of state residency to be equally recent?
The opinion traced this back to the 1867 Constitutional Convention, finding that the framers deliberately deleted a "next preceding" qualifier that the 1864 Constitution had attached to the State residency requirement, a change the opinion linked to a broader effort that same convention made to open offices like Attorney General to Civil War veterans, including former Confederate sympathizers, who had been away from Maryland during the war.

Did an earlier Maryland court decision about a different office's residency rule control the outcome here?
No. The opinion considered Rasin v. Leaverton, a 1942 case interpreting a State's Attorney residency requirement, but found it did not control here because that provision's text, unlike Article IV, §2, did not include a "next preceding" phrase attached to any residency requirement in the same sentence for contrast, so the reasoning did not transfer to judicial residency.

Background and statutory framework

Article IV, §2 of the Maryland Constitution required judges to have "resided" in the State "not less than five years, and not less than six months next preceding their election, or appointment" in the local jurisdiction for which they were chosen. The opinion read the "next preceding" phrase as modifying only the six-month local residency clause, applying the principle from Mazor v. Dep't of Correction that courts must give sentences their ordinary grammatical structure, and the rule from Brown v. Brown that unambiguous constitutional text ends the inquiry without resort to extrinsic aids.

Even so, the opinion went on to trace the provision's drafting history, since the Court of Appeals had elsewhere cautioned that residency requirements can presuppose a "fixed, present domicile" even without express textual support. It found that Maryland's 1864 Constitution had expressly required judges' five years of State residency to run "next preceding their election," but the 1867 Constitution, largely copying the 1864 text, conspicuously dropped that qualifier. The opinion connected this deletion to a parallel change the 1867 Convention made to the Attorney General eligibility provision in Article V, §4, where convention debates recorded in Philip Perlman's collected newspaper accounts of the proceedings showed delegates like Mr. Mackubin explicitly seeking to make eligible "those sons of Maryland who had been temporarily absent in defense of what they conceived to be right," a clear reference to Confederate service. By contrast, the opinion noted, the 1867 Convention retained "next preceding" residency language for other offices, including Governor (Article II, §5) and Sheriff (Article IV, §44), showing the deletion for judges and the Attorney General was a deliberate, targeted choice rather than an oversight. The opinion distinguished Rasin v. Leaverton, where the Court of Appeals read an unmodified residency requirement for State's Attorney to require immediately preceding residency, on the ground that Article IV, §2's structure, with "next preceding" expressly modifying one clause and not the other in the same sentence, gave courts no similar basis to imply the phrase into the State residency requirement.

Citations

Statutes:

• Article IV, §2 of the Maryland Constitution (five-year State and six-month local judicial residency requirement)
• Article IV, §44 [1867] (Sheriff residency, "next preceding")
• Article IV, §49 [1864] (predecessor Sheriff residency provision)
• Article IV, §40 (1867) (Orphans' Court judge residency)
• Article IV, §43 (1864) (predecessor Orphans' Court judge provision)
• Article II, §5 (Governor residency, "next immediately preceding")
• Article V, §4 (Attorney General eligibility; "next preceding" deleted in 1867)
• Article V, §10 (State's Attorney residency, construed in Rasin v. Leaverton)
• Chapter 55, Laws of Maryland 1804 (1805 predecessor judicial residency requirement)

Cases:

• Mazor v. Dep't of Correction, 279 Md. 355, 362 (1977)
• Brown v. Brown, 287 Md. 273, 277-78 (1980)
• Rasin v. Leaverton, 181 Md. 91, 93, 96 (1942)
• Dorf v. Skolnik, 280 Md. 101 (1977)
• Bainum v. Kalen, 272 Md. 490 (1974)

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/1983/Volume68_1983.pdf

Original opinion text

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

PUBLIC OFFICERS

Judges—Residency Requirements—5-Year State Residency Need Not Immediately Precede Election or Appointment.

March 3, 1983

James H. Norris, Esq.
State Court Administrator

Your predecessor requested our opinion concerning the requirement of Article IV, §2 of the Maryland Constitution that individuals appointed or elected to judicial office must have resided in the State for at least five years. Specifically, he asked whether this minimum five-year State residency requirement can be met by any five-year period of prior residency or only by five years of continuous residency immediately preceding the appointment or election.

For the reasons given below, it is our opinion that the five-year State residency requirement may be met by residence in Maryland for any continuous period of five years, and that the residency period need not be for the five-year period immediately preceding the applicant's appointment or election to judicial office.1

1 We advised your Office of this conclusion in a previous letter. This Opinion sets forth the reasoning underlying our conclusion.

I
Constitutional Text

Article IV, §2 of the Maryland Constitution provides as follows: "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. They shall not be less than thirty years of age at the time of their election or appointment, and shall be selected from those who have been admitted to practice law in this State, and who are most distinguished for integrity, wisdom and sound legal knowledge." (Emphasis added.)

The grammar of the residency requirement could not be clearer. The phrase "next preceding their election, or appointment" modifies only the six-month local residency requirement; it does not modify the five-year State residency requirement. "As a corollary of the rule that we accord words their ordinary meaning, we must accord sentences an ordinary grammatical structure." Mazor v. Dep't of Correction, 279 Md. 355, 362 (1977).

Given the clarity of this phrasing, the inquiry might well be ended, for the principles of constitutional construction applied by the Court of Appeals preclude resort to extrinsic aids when the text in question is, as here, unambiguous: "[I]t is axiomatic that the words used in the enactment should be given the construction that effectuates the intent of its framers . . . ; such intent is first sought from the terminology used in the provision, with each word being given its ordinary and popularly understood meaning . . . ; and, if the words are not ambiguous, the inquiry is terminated, for the Court is not at liberty to search beyond the Constitution itself where the intention of the framers is clearly demonstrated by the phraseology utilized." Brown v. Brown, 287 Md. 273, 277-78 (1980) (emphasis added).

However, we recognize that the Court of Appeals, in construing a residency requirement elsewhere in the Constitution, has observed that: (i) as a general rule, such requirements presuppose a "fixed, present domicile" preceding the election or appointment to office, even absent an express statement to that effect; and (ii) "the Constitution of 1867 does not always possess the consistency that [a textual] argument supposes." Rasin v. Leaverton, 181 Md. 91, 93, 96 (1942).2 Thus, we consider whether there is evidence in the history of the provision that the framers intended a meaning different from that plainly conveyed by the text itself.

2 We examine this case in more detail in Part III below.

II
Constitutional History

The pertinent language of Article IV, §2 was adopted in the Constitution of 1867 and has remained essentially unaltered since then. Its immediate predecessor, Article IV, §2 of the shortlived Constitution of 1864, provided as follows: "The Judges of the several Courts, except the Judges of the Orphans' Courts, shall be citizens of the United States, and residents of this State not less than five years next preceding their election or appointment by the Executive in case of a vacancy, and not less than one year next preceding their election or appointment residents in the Judicial District or Circuit, as the case may be, for which they may be elected or appointed. They shall be not less than thirty years of age at the time of their election, and selected from those who have been admitted to practice law in this State, and who are most distinguished for integrity, wisdom and sound legal knowledge." (Emphasis added.)3

3 Article IV residency qualifications for judges first appeared in 1805. Article IV, §1, as proposed by Chapter 55, Laws of Maryland 1804, and adopted by the voters in 1805, provided, in pertinent part: "[T]here shall be appointed, for each of the said judicial districts, three persons of integrity and sound legal knowledge, residents of the State of Maryland, who shall, previous to and during their acting as judges, reside in the district for which they shall be respectively appointed." Article IV, §4 of the Constitution of 1851 read, in pertinent part: "And one person from among those learned in the law, having been admitted to practice in this State, and who shall have been a citizen of this State at least five years, and above the age of thirty years at the time of his election, and a resident of the judicial district, shall be elected from each of the said districts by the legal and qualified voters therein, as a judge of the said court of Appeals."

Thus, the 1864 Constitution quite clearly required that both the State and local residency requirements be satisfied by a period of residency "next preceding" the election or appointment.

The language of Article IV, §2 was amended only three years later to read as follows: "The Judges of all 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 in the Judicial Circuit, as the case may be, for which they may be, respectively, elected or appointed. They shall be not less than thirty years of age at the time of their election, or appointment, and shall be selected from those who have been admitted to practice Law in this State, and who are most distinguished for integrity, wisdom and sound legal knowledge." (Emphasis added.)

The change from the 1864 to the 1867 Constitution is striking. The framers of the latter document carried forward, in large part verbatim, the language of former Article IV, §2, except that they deleted the former's clear and explicit requirement that the five-year period of State residency be "next preceding" the election or appointment.

It is, of course, possible to speculate that the change represented nothing more than a misguided attempt to streamline the wording of the provision without substantive change.4 But the framers of the 1867 Constitution did not make other "stylistic" changes in Article IV, §2, and we decline to assume that the draftsmen, in pursuit of an uncharacteristic economy of diction, were insensible to the dramatically changed meaning that their choice of phrasing conveys. Accordingly, we infer from their rewording of the provision an intention to change the State residency requirement, so that the five years of State residency need no longer be "next preceding" a judge's election or appointment.

Although we find no explanation of this particular change in the Convention's records, the Convention's decisions regarding certain other residency requirements suggest the policy decision underlying the change: the Convention apparently decided to relax the State residency requirement so that absence from the State during the Civil War would not preclude judicial service by one who had previously been a resident of the State for at least five years.

4 The official digest of the Convention's transactions, Proceedings of the State Convention of Maryland to Frame a New Constitution (1867), is unenlightening about the meaning of this provision. The Convention did not produce an official manuscript of the debates. Consequently, the most detailed accounts of the debates appeared in newspapers. The accounts in The Baltimore Sun have been collected in Philip Perlman's 1923 book, Debates on the Maryland Constitutional Convention of 1867 ("Debates"). According to the Debates, it seems that at least one delegate, Mr. Parran, read the reworded provision as if it effected no change in the 1864 requirement: "Mr. Carter moved to amend by making six months' residence in the circuit necessary instead of one year's. Mr. Ritchie opposed the amendment and Mr. Brown and others advocated it. The question was then taken on the amendment of Mr. Carter, when it was agreed to by a vote of 37 to 30. Mr. John Parran moved an amendment requiring the judges to have resided ten years in the State next preceding their election, instead of five. The amendment was not agreed to." Debates at 303 (emphasis added). Assuming that the newspaper reporter accurately summarized it, this characterization of Mr. Parran's amendment implies that he understood the provision then being considered (and ultimately adopted) to require that the five years' residency, which he proposed be extended to ten, must have occurred in the years "next preceding" the judicial election or appointment. However, this indication of one delegate's understanding (or misunderstanding) cannot fairly be attributed to the Convention as a whole, which rejected his amendment.

The Convention's intent to relax State residency requirements and thereby expand eligibility for office may be seen in the deletion of the phrase "next preceding" from the eligibility provision for Attorney General. Article V, §4 of the 1864 Constitution provided: "No person shall be eligible to the office of Attorney General, who has not resided and practiced law in this State, for at least seven years next preceding his election." (Emphasis added.) In 1867, the language of Article V, §4 was amended to read: "No person shall be eligible to the office of Attorney General, who is not a citizen of this State and a qualified voter therein, and has not resided and practiced Law in this State for at least ten years." (Emphasis added.) Deletion of the proviso "next preceding" made attorneys who had been absent from the State during the Civil War eligible to serve as Attorney General.5

5 As first proposed to the Convention of 1867, Article V, §4 read as follows: "'No person shall be eligible to the office of Attorney General who has not resided and practiced law in this State for at least ten years next preceding his appointment.'" The following debate then took place: "Mr. Wickes moved to amend by inserting after the word 'who', 'is not a citizen of the State of Maryland and a qualified voter therein at the time of his appointment.' Mr. Mackubin moved the following as a substitute: 'No person, unless a native of this State, actually resident therein at the time of his appointment, shall be eligible to the office of Attorney General who has not resided therein at least ten years next preceding his appointment, and has been admitted to practice law therein at least ten years prior to his appointment.' Mr. Mackubin said the object of his amendment was to throw this office open to those sons of Maryland who had been temporarily absent in defense of what they conceived to be right. Now that the struggle was over, he was willing to welcome them back with open arms. After some discussion, Mr. Barry proposed the following as a substitute: 'No person shall be eligible to the office of Attorney General who is not a citizen of this State, and a qualified voter therein, and who has not resided and practiced law in this State for at least ten years.' Messrs. Mackubin and Wickes accepted the substitute in lieu of their amendments, and it was then adopted." Debates at 205. This colloquy suggests that Mackubin, who wanted to render eligible for Attorney General "those sons of Maryland who had been temporarily absent in defense of what they conceived to be right", was satisfied that the Barry substitute, deleting "next preceding", achieved his intended result. The Barry substitute, with Mackubin's acquiescence, was adopted by the Convention.

By contrast, the Convention did retain the requirement that State residency be "next preceding" for some offices. Thus, for example, the 1867 Constitution retained from the 1864 Constitution a requirement that the requisite period of residency be "next immediately preceding" the Governor's election (Article II, §5) and "preceding" a Sheriff's election (Article IV, §44 [1867], Article IV, §49 [1864]). Indeed, the 1867 Constitution added such a requirement to the qualifications for Orphans' Court judge. Compare Article IV, §40 (1867) with Article IV, §43 (1864).

In sum, the constitutional history suggests that the framers of the 1867 Constitution made a deliberate decision to fashion a more relaxed residency requirement for judges than that found in the 1864 Constitution or in other provisions of the 1867 Constitution. Our best reading of the admittedly scanty record is that this decision reflected an intention to open judgeships to Civil War veterans, especially those who fought for the Confederacy and who were therefore more likely to have served outside Maryland.6

6 In general, the 1867 Constitution was drafted by Democrats, who were largely sympathetic to the Confederacy, to supplant Unionist policies embodied in the 1864 Constitution. See Report of the Constitutional Convention Commission 59 (1967).

In any event, even if this history provides no conclusive support for our belief that the provision ought to be read as it is written, surely it affords no basis whatever for reading the provision as if it were written differently, as if the former provisions of the 1864 Constitution had been left untouched.

III
Judicial Construction

The residency requirement in Article IV, §2 of the Maryland Constitution has not been construed by the courts. The one case that has addressed the meaning of a different residency requirement in the Constitution is distinguishable, in our view, and sheds little light on the particular phraseology used in Article IV, §2.

In Rasin v. Leaverton, 181 Md. 91 (1942), the Court of Appeals determined that a candidate for State's Attorney in Kent County was ineligible under Article V, §10 of the Constitution, which provides that: "No person shall be eligible to the office of State's Attorney . . . who has not resided, for at least two years, in the county, or city, in which he may be elected." The candidate had resided in Kent County for a number of years, then moved out of the county for several years, and finally took up residency there again, but less than two years immediately preceding the election.

The Court of Appeals held that the candidate was not eligible for the office. In effect, the Court appears to have construed Article V, §10 to require that the two years' residency must be "next preceding" the election, even though this provision, unlike others in the Constitution, lacked express language so stating. 181 Md. at 96. The same approach, it can be argued, should also be adopted with respect to Article IV, §2, which, as to its State residency requirement, likewise lacks such express language.

However, we do not think that Rasin's holding about Article V, §10 is applicable to the problem posed by Article IV, §2. First, the Court of Appeals was not asked to directly consider, and therefore did not expressly resolve, the issue that we address, whether the requisite period of residency in the State must be met by a period immediately preceding appointment or election, or whether the requirement is satisfied by a sufficiently lengthy period of residency prior to the election but not immediately so. The candidate in Rasin did not argue that Article V, §10 permitted any prior period of two years' residency; he evidently conceded that Article V, §10 required residency immediately preceding an electoral event. Instead, he simply argued that the event which counted was the assumption of office, not the election itself. It was this argument only that the Court of Appeals rejected.

But even if one treats Rasin as speaking to issues beyond the narrow question actually presented in the case, we think that the construction of Article V, §10 adopted by the Court cannot reasonably be applied to Article IV, §2. The Court in Rasin rejected the contention that "the absence of the words 'preceding the election,' from the requirement of residence in the clause now considered (Art. V, Sec. 10), and the presence of those words in statements of qualifications for other offices under the same Constitution, evidence an intention that previous residence is not required of candidates for State's Attorney". 181 Md. at 96. The Court observed: "[T]he Constitution of 1867 does not always possess the consistency that the argument supposes." Id. Thus, the Court held, it would construe the bare phrase "resided, for at least two years, in the county" in accordance with the following generalization: "The requirement in the Constitution of residence for political or voting purposes is one of a place of fixed, present domicile." 181 Md. at 93.

We readily acknowledge that the presence of words in one constitutional provision is not necessarily determinative of the significance of the absence of such words in another, unrelated provision, especially when each provision was drafted by a different committee of the 1867 Constitutional Convention. Indeed, if neither the State nor the local residency requirement in Article IV, §2 were modified by "next preceding their election", Rasin might suggest that the phrase ought to be inferred, because it is the norm. But Article IV, §2, unlike Article V, §10, is not open to such an inference. Rather, in a single sentence the phrase "next preceding their election" modifies one residency requirement, and not the other. Surely the generalization about residency requirements in Rasin does not supplant the framers' specific formulation of two different requirements in the same provision.

Accordingly, we simply do not believe that the discussion in Rasin affords a basis on which to depart from the plain meaning of Article IV, §2.

IV
Conclusion

In summary, it is our opinion that the five-year State residency requirement for applicants for judicial office, as contained in Article IV, §2 of the Maryland Constitution, may be met by residence in Maryland for any continuous period of five years and need not be the period of residence immediately preceding election or appointment.7

Stephen H. Sachs, Attorney General
Jack Schwartz, Assistant Counsel,
Opinions and Advice
Avery Aisenstark
Chief Counsel
Opinions and Advice

7 Though the period need not occur immediately preceding the election or appointment, we believe that the required five years of residency must be continuous and may not be met by tacking together shorter, separate periods of residency. The State residency period required by the 1864 Constitution was necessarily continuous, and we do not understand the change in the 1867 Constitution to have altered this aspect of the residency requirement. For a discussion of the general principles that govern the determination of residency in constitutional or statutory provisions setting forth qualifications for office or for voting, see Dorf v. Skolnik, 280 Md. 101 (1977); Bainum v. Kalen, 272 Md. 490 (1974).