Why an Unconstitutional Maryland Statute May Still Appear in the Code
Published .
The general concept
A statute can remain printed in the Annotated Code of Maryland even after the Supreme Court of Maryland has held that it cannot constitutionally be enforced. Its continued appearance does not establish that every part of the statute remains enforceable.
A judicial decision and a legislative amendment perform different functions. Courts determine whether statutory provisions comply with the Constitution and how they may lawfully be applied. The General Assembly amends or repeals statutory language. A constitutional ruling does not automatically produce a legislative amendment deleting the offending words.
Maryland’s separation of powers, expressed in Article 8 of the Declaration of Rights, helps explain this distinction. The court’s ruling governs the legal issue it decides, while the enacted wording may remain unchanged unless the legislature acts. Legislative inaction does not, by itself, override the court’s constitutional holding. Maryland Declaration of Rights, Article 8
Section 5-109 illustrates the problem
Courts and Judicial Proceedings § 5-109 governs medical malpractice filing deadlines. Subsection (a) generally requires filing within the earlier of five years from the time the injury was committed or three years from discovery.
The statutory text also contains provisions addressing children. Subsection (b) refers to commencement of the periods at age 11. Subsection (c) refers to age 16 for specified injuries involving the reproductive system or a negligently retained foreign object. Subsection (e) restricts the effect of ordinary minority tolling on those provisions. Those provisions remain in the text currently published by the General Assembly. Courts and Judicial Proceedings § 5-109
Reading those words alone, however, does not reveal the controlling rule for a child’s own medical malpractice claim.
What Piselli decided
In Piselli v. 75th Street Medical, 371 Md. 188, 808 A.2d 508 (2002), Maryland’s highest court—then named the Court of Appeals and now named the Supreme Court of Maryland—addressed the constitutional problem with applying those deadlines to minors.
The Court held that Article 19 of the Maryland Declaration of Rights prevents the three-year and five-year periods under § 5-109 from beginning to run against the child’s own claim before age 18. Its reasoning recognized that a child’s right to a remedy should not be lost through a parent’s failure to bring suit while the child cannot independently pursue the claim.
The printed age-11 and age-16 provisions therefore cannot be applied as written to begin those periods against the child before adulthood. Piselli did not invalidate every part of § 5-109. Nor does the child’s protection necessarily extend to a parent’s separate claim, which requires its own limitations analysis. Read Piselli
Remaining in the Code is different from remaining enforceable
Maryland decisions recognize that statutory text and enforceability can diverge. In Home Utilities Co. v. Revere Copper & Brass, Inc., 209 Md. 610, 619, 122 A.2d 109 (1956), the Court explained that a state statute conflicting with federal legislation could remain suspended or unenforceable rather than requiring legislative reenactment after the conflict disappeared.
That case concerned a federal-law conflict, not the medical malpractice provisions. It illustrates the broader distinction without establishing that every unconstitutional statute has identical consequences. The scope of the particular ruling matters: a court may invalidate an entire enactment, a severable provision, or a particular application. Read Home Utilities
Why annotations and case law matter
The statutory text is the starting point for legal research. Annotations help identify decisions interpreting or limiting that text, but the opinions themselves must be examined for their holdings and subsequent treatment.
Section 5-109 demonstrates the practical danger of relying on the printed statute alone. Its age references remain visible, but the governing rule includes Piselli’s constitutional limitation. The legislature need not first remove those references for the constitutional holding to control.
Related Maryland Cases and Authorities
- Maryland Declaration of Rights, Articles 8 and 19.
- Md. Code, Courts and Judicial Proceedings § 5-109.
- Piselli v. 75th Street Medical, 371 Md. 188, 808 A.2d 508 (2002).
- Home Utilities Co. v. Revere Copper & Brass, Inc., 209 Md. 610, 619, 122 A.2d 109 (1956).