May 2015 Court of Appeals Certiorari Grants

The perfect Friday afternoon distraction on a sunny spring day: three new certiorari grants, including a constitutional challenge to statutory provisions regarding the involuntary medication of psychiatric patients. This month’s batch after the jump. Read More…

Rough Justice Is Not Simple Justice: Fourth Circuit Guts Wal-Mart v. Dukes and Creates Circuit Split by Ordering Title VII Claims Certified as Rule 23(b)(3) Class

By Derek Stikeleather

Judges want to do justice in all cases. In civil-rights cases, they overwhelmingly want to promote equal opportunity and fight racial injustice in America. Title VII employment discrimination cases often provide them with that opportunity. Workers who present persuasive evidence that they were harassed or denied promotions because of their race often find sympathetic jurors and judges who are eager to faithfully enforce fair-employment laws.

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Sublet v. State: It is what it is… or is it?

By Brad McCullough

One of the more ubiquitous idiomatic phrases used in recent years has been, “It is what it is.” In three consolidated cases decided last month by the Court of Appeals of Maryland, the Court turned that phrase around and focused on the question, “Is it what it is?” – or, more precisely, “Is it what it says it is?” On April 23, 2015, Judge Battaglia issued the Majority’s opinion in Sublet v. State, Sept. Term 2014, No. 42; Harris v. State, Sept. Term 2014, No. 59; and Monge-Martinez v. State, Sept. Term 2014, No. 60.[1] The cases concerned the authentication of information derived from social media, required the Court to expand on its four-year-old decision in Griffin v. State, 419 Md. 343 (2011), and inquired whether three trial judges had suitably answered whether the proffered social media “was what it says it was.” As part of that inquiry, the Court of Appeals adopted a standard to be used by trial judges in resolving the authentication issue. But, as will be discussed, the standard chosen by the Court presents yet another question: what standard of appellate review should be employed in assessing a trial court’s decision on authenticity?

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Comptroller v. Wynne: A Rough Day for Maryland Localities

By Steve Klepper (Twitter: @MDAppeal)

At long last, the Supreme Court today issued its ruling affirming the decision of the Maryland Court of Appeals in Comptroller v. Wynne, 431 Md. 147 (2013). The Supreme Court’s opinion is here. Justice Alito wrote for the 5-to-4 majority, holding that Maryland’s income tax scheme violates the dormant commerce clause. In the kind of unusual lineup we expect in dormant commerce clause cases, Justices Scalia, Thomas, Ginsburg, and Kagan dissented.

The decision could cost Maryland and its localities $200 million in tax refunds. Although the taxpayers were disputing their Howard County income tax, the hardest-hit locality is Montgomery County, which has many residents who earn income in Washington, D.C. or Virginia.

For our previous coverage of Comptroller v. Wynne, click here. The filings (including some excellent briefing by Hogan Lovells in a tough case) are available here.

The Full Fourth Circuit Should Grant Rehearing on the “Intrinsic Evidence” Doctrine

By Steve Klepper (Twitter: @MDAppeal)

On May 11, the Fourth Circuit published its opinion in United States v. Bajoghli, which held that a Virginia district judge abused his discretion in excluding evidence of acts that were either deleted from an indictment for healthcare fraud or that took place after the scheme was alleged to have ended. In the process, Bajoghli took an extreme view of the doctrine of evidence that is “intrinsic” to an indictment. If the defendant petitions for en banc review, the full Fourth Circuit should take the opportunity to cabin or abandon the “intrinsic evidence” doctrine. Read More…

March/April 2015 Link Round-Up

By Chris Mincher

Blog editor Michael Wein has been all over the new and proposed Maryland Rules regarding unpublished opinions. As noted by Daily Record blogger N. Tucker Meneely, unpublished Court of Special Appeals are already being officially posted online, but the prospects that Maryland courts will actually let you rely on them as trustworthy statements of law is pretty low. Earlier in the month, Tucker also expressed his appreciation for Judge Harrell’s use of “humorous quips and pop culture references” in his opinions. Other links of note from March and April appear after the jump. Read More…

Fourth Circuit applies “gist of the action doctrine,” avoids slippery slope of Rule 15

By Derek Stikeleather

A century ago, pleading causes of action presented many traps for the unwary; entire cases could collapse over minor imperfections or pleading errors. Such rigid formalism ended in 1938 with enactment of the modern Federal Rules of Civil Procedure. Specifically, Rules 8 and 15 provide much more liberal standards for pleading and amending causes of action, even allowing some plaintiffs to amend their complaints after their trials have ended. But, as the Fourth Circuit recently reminded practitioners in Dan Ryan Builders, Inc. v. Crystal Ridge Development, Inc., No. 13-2234, — F.3d —-, (4th Cir. April 20, 2015), Rule 15’s capacity to accommodate pleading errors has its limits. 

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A Brief Legal History of Baltimore Riots

By Steve Klepper (Twitter: @MDAppeal)

Wracked by feelings of powerlessness regarding Baltimore’s recent troubles, I did one thing I know how to do – I wrote a blog post.[1] I’ve seen debates on social media whether to label the events of this past week a “protest” or a “riot.” It’s a false dichotomy. We’ve had both protests and riots. And my adopted home city in fact has a long history of riots and litigation arising out of them. The decisions of the Court of Appeals of Maryland teach much about the history of Baltimore riots. Read More…

Update on Consideration of Proposed Unreported Opinion Rule

By Michael Wein

A lot of lively discussion ensued on this Blog and others on the proposed revisions to Md. Rule 1-104. There was a general positive reaction to the news that, for the first time, unreported opinions from the Court of Special Appeals (about 90 percent of the appellate opinions in the state) would by end of this year be made available online on the Judiciary website. Most commentary, however, focused on the proposed revisions to 1-104 that would expand the prohibition on citation of Maryland unreported opinions to include all “non-precedential,” “unreported,” and “unpublished” opinions, thereby broadly sweeping away an enormous number of previously citable decisions from across the nation, including all state and federal trial and appellate courts.

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Event: Fourth Circuit Seminar, Featuring Judges Motz, Davis, and Harris

This exciting invitation just arrived in our inbox. Big thanks to the FBA Maryland chapter!

Federal Bar Association Maryland Chapter




Panel discussion by 4th Cir. Judges Motz, Davis, and Harris

Advocacy Advice by former U.S. Solicitor General Paul D. Clement

View from Behind the Bench by Clerk of Court Patricia Connor

Round Table Discussion by Distinguished Attorneys

MAY 28th, 2015 at 1:30 p.m.

at the U.S. District Court for the District of Maryland in Baltimore

101 W. Lombard Street

Baltimore, MD 21201

Please RSVP to Kelly Cooper, Esq. at by May 14th.

Light Reception to follow



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