The September 2018 Term could become known as the “SIJ Term” for the Maryland Court of Appeals. “SIJ” stands for Special Immigrant Juvenile status under a federal statute, 8 U.S.C. § 1101(a)(27)(J). As the U.S. Citizenship and Immigration Services website says, “you may qualify for lawful permanent residency (also known as getting a Green Card)” if “you are in the United States and need the protection of a juvenile court because you have been abused, abandoned, or neglected by a parent.”
Although the Court of Appeals has been granting certiorari in fewer cases than usual so far this term, it has given close attention to petitions in SIJ cases. Three of its 62 grants have involved SIJ status. Read More…
Court of Special Appeals Rules for Adverse Possessor in Dispute About a Property on the Ocean City Boardwalk
On December 21, 2018, in Nathans Associates v. The Mayor and City Council of Ocean City, the Court of Special Appeals handed the descendants of Nathan Rapoport a big victory, preventing Ocean City from kicking Nathans Associates out of a property the Rapoport family has continuously occupied and controlled since 1912 (the “Nathans Property”). In so doing, the Court reversed a trial verdict for Ocean City issued by retired Maryland Court of Appeals Judge Dale R. Cathell. This case is a cautionary tale for anyone who has the burden of proof to show that a modern-day building is located at a particular point on an old plat in a town’s records. The case is also interesting because of a motion to recuse that Nathans Associates made during the trial, after Ocean City introduced a letter that Judge Cathell wrote to Mr. Rapoport in 1972 when Judge Cathell was the City Solicitor of Ocean City. The Court of Special Appeals found no abuse of discretion in Judge Cathell’s denial of Nathans Associates’ recusal motion.
Happy New Year from the Maryland Appellate Blog!
Three new writs of certiorari start off our 2019:
(I) In re Santos Nohe Lopez Perez – Order granting an emergency petition for writ of certiorari and ordering the case be remanded to allow the petitioner to apply for special immigrant status, “with haste” and before his impending 21st birthday later this week (the Daily Record’s Steve Lash gives further coverage of this case, including a quote from Perez’s attorney – the Blog’s own EIC, Steve Klepper);
(II) Ronald F. Moser, et al. v. Kristi Heffington, et al. (COSA Reported Opinion by Judge D. Eyler) – Civil Procedure – 1) Did CSA err when it vacated the trial court’s denial of Respondent’s motion to stay in a case where: A) Respondent initiated the civil action for defamation; B) during the pendency of the civil action, Respondent was criminally indicted for the conduct at issue in the civil suit, yet Respondent had fully participated in all aspects of discovery both prior to and after the indictment, which discovery included her own deposition; and C) on the eve of trial, and four months after the indictment, Respondent filed an 11th hour motion to stay the civil trial on the grounds that she intended to invoke her Fifth Amendment privilege not to testify at the civil trial? 2) Did Respondent waive her Fifth Amendment privilege in the civil action by testifying at her deposition and providing other discovery responses without invoking the privilege, after she was on notice that the police were investigating her for the conduct at issue? 3) Given that Respondent had already answered questions at her deposition concerning the conduct at issue, did Respondent fail to preserve for review the denial of a stay of the civil action where she failed to proffer the questions as to which she intended to invoke her right to silence – which was necessary to determine if she could validly exercise the privilege or had waived it? 4) Did CSA unnecessarily decide a Constitutional question, i.e. whether the trial court had failed to fully consider Respondent’s Fifth Amendment right by not granting a stay of the civil action, after it learned that Respondent had been convicted of the very conduct that formed the basis of the alleged defamation, which rendered moot her defamation claim?
(III) State of Maryland v. John Schlick (COSA Reported Opinion by Judge Raker) – Criminal Law – Does a court lose revisory power over a criminal sentence “after the expiration of five years from the date the sentence originally was imposed,” as Maryland Rule 4-345(e) states, or does the court indefinitely retain “fundamental jurisdiction” to revise a sentence, which it is an abuse of discretion not to consider exercising, as CSA held below?
Brynja McDivitt Booth, Booth, Booth, Cropper & Marriner (Easton)
Joyce Elizabeth Jones, Jones & Suh, LLC (Church Hill)
Carla Lynn Knight, Lynn Knight Law (Centreville)
Jane Chace Miller, Law Office of Jane Chace Miller (Chester)
These four individuals join Christopher F. Drummond, Judge Christopher B. Kehoe, and Judge Brett W. Wilson, who each applied in August of 2018. The Commission intends to meet on January 14, 2019 to review these applications.
One of the Court of Appeals’ more notable decisions from 2018 is Kennedy Krieger Institute, Inc. v. Partlow, 460 Md. 607 (2018), which analyzed the scope of a Maryland tort defendant’s duty of care. The Partlow court was asked whether medical researchers at Kennedy Krieger[i] owed a duty of care not only to participants in its medical research study on lead-paint abatement but also to a participant’s sibling, who was not part of the study. With compelling arguments from both sides, the court split 4-3, holding that the researchers owed a duty to the non-participating sibling.
The Maryland Court of Appeals granted review in six cases yesterday. All were civil cases, addressing toxic torts, taxation, termination of parental rights, and the law governing partnerships and homeowners associations. Below are the six grants, with questions presented and links to the Court of Special Appeals opinions under review. Read More…
As previously reported on the Maryland Appellate Blog, Judge Sally D. Adkins’s retirement left a vacancy on the Court of Appeals, for the First Appellate Judicial Circuit. In August, three submitted applications for the seat – Christopher F. Drummond, Judge Christopher B. Kehoe, and Judge Brett W. Wilson. But, according to the Maryland Courts website, “[t]his vacancy is being re-advertised for new applicants.”
**Correction: As originally posted, this blog post incorrectly stated that the Appellate Judicial Nominating Commission had nominated all three existing applicants. In fact, the Commission has yet to make any nominations for this vacancy. This correction has been made.
For direct updates on the Appellate Judicial Nominating Commission’s consideration of applications for this vacancy and others, see the Maryland Courts website.