July 2015 Maryland Certiorari Grants

On the heels of its eight(!) published opinions today, the Court of Appeals of Maryland released its July 2015 certiorari grants. There are only four grants, three of which involve disputes with the Maryland Department of the Environment. The cases, with questions presented, appear after the jump. Read More…

Non-Mutual Collateral Estoppel: A Shield, but is it a Sword?

By Brad McCullough

Traditionally, the preclusive effects of res judicata and collateral estoppel applied only if the parties in the second case were the same as, or in privity with, the parties in the first case. This was commonly referred to as the “strict mutuality of parties” requirement, but the Court of Appeals “long ago discarded” that requirement for both res judicata and collateral estoppel. Caldor, Inc. v. Bowden, 330 Md. 632, 657 (1993) (citations omitted). Thus, it is now “irrelevant that the party seeking to assert collateral estoppel was not a party to the prior proceeding. Only the party against whom collateral estoppel is asserted need be a party or in privity with a party in the prior adjudication.” Id. at 657.

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Get Ready for a Busy Six Weeks in the Court of Appeals

The Court of Appeals of Maryland has six weeks (minus a day) until its self-imposed deadline of August 31 to issue opinions in all cases heard from September 2014 through June 2015. We count 23 such cases awaiting opinions: 11 criminal appeals, 8 civil appeals, and 4 attorney discipline cases. Those numbers include three cases (1 civil, 2 attorney discipline) where the Court issued a per curiam order immediately after argument and indicated that an opinion was forthcoming. If this year shakes down like last year, we should expect most of those opinions to come down in the days following the Court’s July 23 conference, with the remaining handful of opinions coming down in August. If you want a preview of what’s coming, the Court’s Pending Cases list provides a handy guide.

Only Two Apply for Court of Appeals, Triggering Mandatory Re-Advertisement

A vacancy on Maryland’s highest court opened when Court of Appeals Judge Glenn T. Harrell, who occupied the seat reserved for Prince George’s County, hit mandatory retirement age on June 27. The joke in legal circles has been that we’ll now learn whether there are any Republican lawyers in Prince George’s County (aside from a former lieutenant governor and RNC chair).

You can keep joking away. Steve Lash is reporting, from behind the The Daily Record paywall, that there were only two applications filed by today’s deadline. Both applications came from Democratic appointees to lower courts: Read More…

Pitchforking the Fourth Circuit’s Take on Usher and Bieber’s “Somebody to Love”

By Chris Mincher

“Writing about music is like dancing about architecture,” quipped Martin Mull, summing up in eight words the difficulties and frustrations (and perhaps questionable merit) of trying to adequately convey the nature of a song in written language. I’ve been reviewing music for about a decade now, and it is a never-ending struggle; there is simply no smooth conversion from sound to text. In the realm of intellectual-property law, this constant challenge for critics becomes the occasional burden for the federal judiciary – as Fourth Circuit Judge Pamela Harris recently discovered in resolving a headline-making copyright case involving two pop mega-stars.

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Judges Should Blog More But Learn From Judge Kopf’s Mistakes

By Steve Klepper (Twitter: @MDAppeal)

Since the Maryland Appellate Blog’s debut in September 2013, the “Blogroll” at the bottom of our home page has included Hercules and the Umpire, written by Senior U.S. District Judge Richard Kopf of the District of Nebraska. His blog has offered terrific, insightful commentary from a judge who cares about justice and who vocally deplores injustice. Also, in offering updates on treatment for cancer (thankfully in remission), Judge Kopf has helped to humanize the judiciary. But Judge Kopf made serious mistakes along the way, leading to a not-unexpected outcome this week.

Judge Kopf announced on Thursday that he will cease adding new posts. I’m glad he has seen the light, but I’m sad it came to this. This decision follows the latest in a series of missteps. Read More…

The Asterisking Begins

The Court of Appeals has issued two opinions since June 27. Each has an asterisk in the list of judges: “Harrell, J., participated in the hearing of the case, in the conference in regard to its decision and in the adoption of the opinion but he retired from the Court prior to the filing of the opinion.”

Yes, Maryland’s movie-quoting appellate judge hit the mandatory retirement age of 70 ten days ago. (Steve Lash’s nice-but-paywalled piece is here.) Read More…

Kulbicki Still Awaiting Supreme Court Cert Decision

By Michael Wein

The Maryland case of Kulbicki v. State, involving the post-conviction relief appropriate for those convicted with help from the now thoroughly discredited FBI “comparative bullet lead analysis” (“CBLA”), was one of the “blockbuster” cases of last year, as noted by fellow Blog editor Brad McCullough in a post discussing how the case unexpectedly did not decide larger issues and by myself on a list of some of the “longest pending cases” in the 2013-2014 Term (Kulbicki being the longest). The 4-3 Court of Appeals decision and majority opinion by Judge Lynne Battaglia, instead of dealing with potentially more sweeping issues that could have also been addressed in the case, concentrated more narrowly on Kulbicki’s entitlement to a post-conviction remedy under a regular ineffective-assistance-of-counsel analysis, despite that potential error not being earlier presented in the certiorari petition. As Judge Robert McDonald’s dissent noted, the case “reverses Mr. Kulbicki’s conviction on the basis that his trial counsel failed to anticipate [that CBLA would one day be deemed inadmissible] and thereby provided ineffective assistance of counsel in their cross-examination of the prosecution’s CBLA forensic expert – a ground not briefed by either party in this appeal and not among the questions on which we granted the writ of certiorari in this case.”

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No, a different Arthur and Kehoe…

By Steve Klepper (Twitter: @MDAppeal)

The Court of Appeals’ latest list of denied petitions included “Arthur v. Kehoe – Pet. Docket No. 50.” I Tweeted at the time: “I’m guessing not [Court of Special Appeals] Judges [Kevin] Arthur & [Christopher] Kehoe.”

As it turns out, the coincidence did not go unnoticed at the Court of Special Appeals. The unreported opinion of the Court of Special Appeals in Kehoe v. Arthur (Feb. 11, 2015) isn’t available online, but my Tweet prompted a reader to forward me a copy of Judge Nazarian’s opinion, which opens with a gem: Read More…

A Possible Shift in Establishing a Hostile Work Environment

By Karen Federman Henry

In many respects, the en banc decision of the U.S. Court of Appeals for the Fourth Circuit in Boyer-Liberto v. Fontainebleau Corp., No. 13-1473 (May 7, 2015), presents a series of unfortunate events.* The Court used a relaxed standard for an employee to assert a claim for hostile work environment that could have a significant impact on employers.

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