By Tia L. Holmes[*]

Early last month, the Appellate Court of Maryland issued its unreported opinion in Snyder v. State, App. Ct. of Md., Sept. Term 2021, No. 1127 (Feb. 3, 2023). Snyder involved a pretextual traffic stop that the Court concluded was authorized by Whren v. United States, 517 U.S. 806 (1996). During the traffic stop, Mr. Snyder’s vehicle was searched, and the fruit of that search led to his arrest and subsequent conviction. The Court reversed Mr. Snyder’s conviction because the evidence that was used to convict him had been seized in violation of the Fourth Amendment. Concurring with the Court’s decision, Judge Dan Friedman wrote separately to express his views regarding Whren and to urge the Supreme Court of Maryland to abandon the failed federal doctrine established in Whren.

In a previous post about the Snyder opinion, Maryland Appellate Blog editor Chris Mincher left an open invitation for a discussion about Judge Friedman’s concurrence. I accepted his invitation because, in my opinion, Judge Friedman’s concurrence is the most important part of the Court’s decision.

“After much debate,” the 214th Report of the Maryland Rules Committee proposes to amend Rule 1-104, which has long prohibited citation to unreported Maryland appellate decisions as precedent or as persuasive authority. The new Rule 1-104(a)(2)(B) would provide that, unless “designated as a per curiam opinion, an unreported opinion of the Appellate Court issued after [effective date of Rule] may be cited for its persuasive value only if no reported authority adequately addresses an issue before the court.” The comment period ends March 1, 2023, and the proposal will then go to the Supreme Court of Maryland for its consideration.

In what is hopefully the first of a recurring feature, we’ve polled our editorial board to get their views of the new rule.

By Michael Wein

For the first time, the Maryland Rules Committee has recommended Unreported Opinions in Maryland be cited for “persuasive value” under Maryland Rule 1-104.   Part of the given Rule change’s rationale, was the Maryland Supreme Court does not consider itself as limited in citations, as at Maryland’s intermediate Appellate Court of Maryland.   See Blog post dated 2/19/2020 discussing apparent contrary use of unreported opinions by Maryland Supreme Court. There remains some uncertainty as to the final version, as described below.   This comes after a September 2022 Rules committee meeting, became publicly available about 2 weeks ago, as part of the 214^th Report.   The listed deadline for Comment to the Maryland Supreme Court is on March 1, 2023, with an open meeting scheduled for March 23, 2023.

The concerns about reforming Maryland’s Unreported Opinion Rule are long-running and also previously discussed in previous posts here (on recent Maryland Supreme Court decision), here (on 2015 Rules proposal to allow them on Case Search, but restricting their use from other jurisdictions for first time), and here (Rules Committee dropping 2015 restrictions after criticism).   The Federal Courts got rid of any Local Rules with a prohibition against citations for persuasive value back on January 1, 2007.   This present iteration, is the first time the Rules Committee has proposed doing away with the unreported opinion citation Rule. 

However, with 15 years of Federal appellate Courts managing the Rule change, the Rules Committee, has chosen to not follow the Federal model of a simple removal of the prohibition as all Federal Circuit Courts of Appeal now have, with citations available online.  Instead, like the 2015 version, the Maryland Rules Committee seems to exchange more transparency for “granting” unreported opinion citations, by creating a much more complex Rule in its place.