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Philip Morris Inc. v. Angeletti5/16/2000
aves, 19 Md. 351, 374 (1863) (citations omitted). See also Ipes v. Board of Fire Com'rs of Baltimore, 224 Md. 180, 183, 167 A.2d 337, 339 (1961); Upshur v. Baltimore City, 94 Md. 743, 746, 51 A. 953, 954 (1902); Poe, supra, § 709, at 664.
As a prerogative writ, the authority to issue mandamus rests within the sound discretion of the court, but that discretion must "be exercised under the rules long recognized and established at common law." Hardcastle v. Md. & Del. R. R. Co., 32 Md. 32, 35 (1870) (internal quotation marks omitted). In addition, Circuit Courts of this State have been statutorily conferred with the power and discretion they enjoyed under the common law to issue writs of mandamus. See Maryland Code (1974, 1998 Repl. Vol., 1999 Supp.) § 3-8A-01 of the Courts and Judicial Proceedings Article. This case, however, does not involve the correctness vel non of the issuance of a writ of mandamus by an inferior court. Rather, Petitioners have requested that this Court issue a writ of mandamus in the first instance. Accordingly, we turn to the authority and role of this Court in ruling upon a petition for mandamus.
We initially reject Respondents' contentions (1) that this Court's promulgation of Title 8 of the Maryland Rules, Appellate Review in the Court of Appeals and Court of Special Appeals, effective July 1, 1988, forecloses the issuance of a writ of mandamus by this Court because of the absence of an express provision in the Rules for such; (2) that any appellate review of the present case, if conducted by this Court, must occur by way of a writ of certiorari, necessitating that the case first be noted and pending in the Court of Special Appeals; (3) that the present petition should be denied on the ground of untimeliness; and (4) that a grant of the requested writ would be futile because Petitioners failed to specifically include the Circuit Court's initial order of class certification within their request for relief.
First, that Title 8's lack of an express provision for this Court to issue a writ of mandamus does not negate our mandamus authority is beyond debate. As noted above, the writ of mandamus is an original action, not an appeal. See Goodwich, 343 Md. at 145, 680 A.2d at 1047. Hence, Title 8's governance of appellate procedure is simply not applicable. Moreover, the extraordinary writ of mandamus in this State originated under the common law and has several times been recognized to remain a common law prerogative of this Court, even in cases subsequent to 1988. See Doering v. Fader, 316 Md. 351, 558 A.2d 733 (1989) (confirming this Court's authority under common law to issue writ of mandamus yet ultimately determining writ unnecessary in that case); Keene Corp. v. Levin, 330 Md. 287, 623 A.2d 662 (1993) (acknowledging this Court's common law power to issue writ of mandamus but ruling such issuance improper under circumstances therein). Even were Title 8 applicable, there exists a generally accepted principle in construing statutes and court rules that the legislative, or quasi-legislative, derogation of the common law must be made expressly clear. See, e.g., Robinson v. State, 353 Md. 683, 693, 728 A.2d 698, 702 (1999); Lutz v. State, 167 Md. 12, 15, 172 A. 354, 356 (1934).
Second, for the very reason that a petition for writ of mandamus is not an appeal, any notion that the Court of Special Appeals possesses "primary jurisdiction" in the present matter is equally inapposite. Third, the writ of mandamus is, again, by its very nature an extraordinary form of relief, the request for which is likewise highly unusual, and, as such, the writ is not ordinarily subject to specific time requirements or other like restrictions. In short, a petition for w
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