Congress Considers Creating New Federal Appellate Seats, and the Usual Political Arguments Emerge.

By John Grimm

The House Judiciary Committee recently held a hearing to consider creating additional federal judgeships, including the addition of new appellate-court seats.[1] The hearing revealed bipartisan concern that rising caseloads—and the growing backlogs they produce—threaten litigants’ access to the courthouse. At the appellate level, courts have grappled with increasing workloads by giving more power to staff attorneys to manage low-profile cases. Witnesses also cited curtailed oral arguments and a proliferation of unpublished decisions as casualties of appellate court overload.

Read More…

The Singular “They” Reaches the White House, But Not the Appellate Courts

By Steve Klepper (Twitter: @MDAppeal)

Within hours of his inauguration, President Biden signed his Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation. The Executive Order began:

Every person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love. Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports. Adults should be able to earn a living and pursue a vocation knowing that they will not be fired, demoted, or mistreated because of whom they go home to or because how they dress does not conform to sex-based stereotypes. People should be able to access healthcare and secure a roof over their heads without being subjected to sex discrimination. All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.

Focus on the first sentence. It uses the singular “they,” instead of “he or she,” to refer to an indeterminate person. That’s no coincidence in an order addressing discrimination based on gender identity.

The phrase “he or she” rests on the erroneous assumption that everyone is either a “he” or a “she.” Non-binary individuals do not identify as men or women. The easy fix is to write in plain English and use the singular “they,” just like the White House does.

I’ve written on this issue before—urging judges to abandon “he or she” and expressly embrace the singular “they” (in the same way they endorsed the “cleaned up” parenthetical). My proposal made no headway, so far as I can tell. The phrase “he or she” continues to appear regularly in Maryland appellate opinions. In the words of Arlo Guthrie, however, “I’m not proud … or tired.”

Read More…

February 2021 Maryland Certiorari Grants

Yesterday, the Maryland Court of Appeals granted certiorari in four criminal appeals and three civil appeals. The cases, with the questions presented and links to the Court of Special Appeals opinions under review, are below.

Read More…

Issues That May Be Raised For The First Time On Appeal

By Megan Coleman

Every appellate attorney is familiar with the rule that the appellate courts will not consider arguments raised for the first time on appeal. My experience doing criminal appeals informs me that I better make sure my issues were raised below, otherwise I can expect the Office of the Attorney General to begin their response brief with an argument that the issue was not preserved and therefore should not be considered on appeal. 

Where an issue was not raised below, normally the only recourse is to ask the appellate court to exercise plain error review pursuant to Maryland Rule 8-131(a). That is an uphill battle that usually results in the appellant rolling backwards a long way down.

However, there are certain issues that may properly be raised for the first time on appeal. Appellate attorneys reviewing the trial record should keep a lookout for these issues as they may be dispositive to the appeal.

Read More…

Problems with Modern Electronic Legal Research—“Googlization” versus “Boolean Logic”

By Michael Wein

About every two to three years, Westlaw and Lexis representatives contact my office about renewing my existing (and not inexpensive) legal database subscription or switching to the other company.  I have used legal databases since college, though which one I prefer is not the subject here.  What’s comparably new is both companies for about the past decade, have boasted their new legal database systems now have a sophisticated algorithm search comparable to Google, for every appellate (and most Federal District Court cases), to quickly and correctly locate the best cases on the topic.  This conceivably makes Boolean logic or just regular “keyword” searching, unnecessary or obsolete.  As explained below, though there are some advantages, depending on the market audience, it is not necessarily these algorithms are superior, particularly when it comes to locating more obscure appellate caselaw, to help win a case.

Read More…

The importance of non-pattern jury instructions

By Brad McCullough

Maryland’s appellate courts strongly encourage lawyers and trial judges to rely on pattern jury instructions, observing that pattern instructions “have been put together by a group of distinguished judges and lawyers who almost amount to a ‘Who’s Who of the Maryland Bench and Bar.” Green v. State, 127 Md. App. 758, 771 (1999). Thus, “generally the pattern jury instructions suffice and trial judges usually may rely on them.” Bayne v. State, 98 Md. App. 149, 160 (1993). But lawyers should not be complacent and simply rely on pattern instructions without thinking whether other non-pattern instructions could buttress their cause. In an opinion by Judge Stuart Berger, writing for a panel that included Judge Kevin Arthur and Senior Judge Robert Zarnoch, the Court of Special Appeals reversed a judgment where the trial judge refused to give requested non-pattern jury instructions that correctly stated the law, were supported by the evidence, and were not fairly covered by instructions the court actually gave. Six Flags America, L.P. v. Gonzalez-Perdomo, Case No. 1620, Sept. Term 2019 (Dec. 16, 2020).

Read More…

Court of Special Appeals Bats .500 in Appeal of Planning Board Actions

By Alan B. Sternstein

At some time during their ownership, real property owners are likely to be concerned with local or state regulatory proceedings related to nearby property. These proceedings take various forms, from rezoning requests, to requests for variances from zoning requirements or special zoning uses, to requests for approval of preliminary subdivision or development plans. This blog writer has had first-hand experience with many of these actions, as a member for years of a board of zoning appeals and, at other times, as counsel representing property owners.

Two administrative law aspects of the decision of the Court of Special Appeals in West Montgomery Co. Citizens Ass’n v. Montgomery Co. Planning Bd., No. CSA-REG-0579 2019 (“West Montgomery”), bear comment, at least from the perspective of this blog writer’s experience. First is the content of the written support that regulatory bodies are required to provide by statute, regulation or law for their decisions approving or disapproving the administrative actions they take. Second, in the case of real property proceedings, is whether these regulatory bodies have the authority to require, as a condition of approvals within their jurisdiction, compliance with private agreements between applicants for actions and nearby property owners related to such administrative actions.[1]

Read More…

Can Maryland Courts Affirm Summary Judgment on Alternative Grounds?

By Derek Stikeleather

Law is complicated. I often need to remind myself that, if law was easy to understand and apply, no one would need attorneys. To efficiently analyze legal problems and resolve cases, courts and practitioners naturally rely on general legal rules and principles. Such analytical shortcuts are invaluable—when they fit the case—because they provide clear, correct guidance. But for any general legal rule, the proverbial devil is not so much in the details as in the exceptions to the rule.

Practitioners must be able to not only recognize and recite general legal rules but also identify each rule’s limits to know when to ask appellate courts to reject the general rule and apply an exception. This article examines one general rule that shapes Maryland appeals from orders entering summary judgment: Do not affirm summary judgment on grounds different from those the trial court relied on.

Maryland’s appellate courts are quick to cite the general rule that they will not affirm summary judgment on grounds that differ from the trial court’s reasons. The general rule aligns with the principle of limiting appellate courts to reviewing final judgments rather than preempting trial courts and creating their own alternative final judgments. The reasoning holds that if a trial court improperly granted summary judgment, any alternative basis for summary judgment should initially be resolved by the trial court. Affirming summary judgment on alternative grounds would effectively end a plaintiff’s case without an affirmed adverse ruling from the trial court.

Read More…

January 2021 Maryland Certiorari Grants

Yesterday, the Court of Appeals of Maryland granted certiorari in two civil cases, both involving unreported Court of Special Appeals opinions. The two cases, with links to the opinions under review, are below.

Read More…

Judge Laura Ripken Appointed to Court of Special Appeals

Today, Governor Larry Hogan appointed Anne Arundel County Circuit Court Judge Laura Sue Ripken to the Court of Special Appeals. She was one of four nominees forwarded by the Appellate Courts Judicial Nominating Commission to fill the vacancy created by the retirement of Judge Timothy Meredith.

Governor Hogan’s press release states:

Read More…