October 2017 Maryland Certiorari Grants

The Maryland Court of Appeals has posted six certiorari grants. The list is heavy on procedural questions, such as the “prison mailbox rule” and interlocutory appeals in criminal cases. (Incidentally, Michael Wein posted yesterday about civil interlocutory appeals.) The list of grants, with questions presented, appears after the jump. We’ve added, in brackets, a link to the Court of Special Appeals opinion. Read More…

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Death of adult with Down syndrome shows difference between federal and Maryland interlocutory appeals

By Michael Wein

A Washington Post article dated September 13, 2017, discussed the upcoming oral arguments and the expectation was that it could “takes months” for a decision, in the death of Robert Ethan Saylor, an adult with Down Syndrome, who after refusing to leave a movie theater, to watch a second showing of Zero Dark Thirty, lead to his tragic death by sheriff deputies in Frederick, Maryland. The Fourth Circuit didn’t think months were necessary, and in a one-page opinion, two weeks later, affirmed Federal Judge William Nickerson’s 65-page decision finding genuine disputes of material facts. Read More…

Assistant AG Matthew Fader appointed to Court of Special Appeals

From this morning’s press release:

Governor Larry Hogan today announced the appointment of Matthew J. Fader to the Maryland Court of Special Appeals. The governor made the appointment after reviewing nominees from the judicial nominating commission.

“I am confident that Mr. Fader is the most qualified candidate to fill the vacancy on the Maryland Court of Special Appeals,” said Governor Hogan. “I would like to congratulate him on this appointment, and I know that he will serve the people of Maryland well in this new role.”

Matthew J. Fader has served as an Assistant Attorney General with the Office of the Attorney General since June 2010 and is currently the Chief of Civil Litigation for the State of Maryland. Prior to joining the Attorney General’s office, Mr. Fader was a partner at the Pittsburgh, Pennsylvania-based firm of Kirkpatrick and Lockhardt, LLP, an international law firm, where he represented clients in commercial litigation in federal and state courts, as well as arbitrations. He also counseled clients with respect to compliance with the Foreign Corrupt Practices Act. Mr. Fader served as a Trial Attorney with the U.S. Department of Justice from 1999-2002. Mr. Fader received his B.A. from the University of Virginia, and received his J.D. from Yale Law School where he served as Senior Editor on the Yale Law Journal.

The End of Frye-Reed

By Derek Stikeleather

Maryland’s Frye-Reed era appears to be ending. Last month, in Savage v. State,[1] the Court of Appeals handed down a significant decision on “the proper scope for the threshold evaluation of expert scientific evidence” under Maryland’s “Frye–Reed” test. Although the Frye-Reed test, as originally envisioned, would preclude only opinions based on novel scientific methodologies that were not “generally accepted as reliable within the expert’s particular scientific field,”[2] its scope has greatly expanded in recent decades. The Savage opinion highlights that Frye-Reed now precludes opinions, even those based on methodologies that are both (1) not novel and (2) generally accepted, if the reasoning behind the opinion is simply unreliable. Under Savage, the Frye-Reed inquiry requires trial judges—regardless of whether the expert’s underlying methodology is well-established and valid—to examine “whether the expert bridged the ‘analytical gap’ between accepted science and his ultimate conclusion in a particular case.”

How did we get here and where are we headed? Read More…

Benisek v. Lamone – an End Run for No Gain in Redistricting Challenges?

By Alan B. Sternstein

A three-judge panel of the federal district court for Maryland recently concluded another round in the longstanding legal fight over the state’s 2011 congressional redistricting plan and, in particular, the plan’s restructuring of Maryland’s Sixth Congressional District. In a 2-1 decision, the panel denied plaintiffs’ motion for a preliminary injunction against use of the redistricting plan in the upcoming 2018 midterm congressional elections. Benisek v. Lamone, 2017 U.S. Dist. LEXIS 136208 (Aug. 24, 2017) (“Benisek II”).[1] In Benisek v. Lamone sub nom. Shapiro v. McManus, 203 F. Supp. 3d 579 (D. Md. 2016) (“Benisek I”), the same district court panel denied defendants’ motion to dismiss plaintiffs’ second amended complaint. Read More…

Final Judgments and Harmless Jurisdictional Error in Maryland

By Michael Wein

Appealable final judgments have been described as a legal quagmire that for “the past forty or fifty years … no one issue has been the subject of more opinions than the question of whether a trial court order is appealable …” Brewster v. Woodhaven Bldg. & Dev. Inc., 360 Md. 602, 623 (2000). Going further, the Court of Appeals noted “[n]either the Code nor the Rules define when an order or ruling is sufficiently final to qualify as a judgment…’[W]hether a ruling is final’ … is frequently so close a question that decision of that issue either way can be supported with equally forceful arguments, and that it is impossible to devise a formula to resolve all marginal cases coming within what might well be called the ‘twilight zone’ of finality”) Circuit City Stores, Inc. v. Rockville Pike Joint Venture Ltd. P’ship, 376 Md. 331, 347 (2003), quoting in part, Gillespie v. United States Steel Corp., 379 U.S. 148, 152 (1964)). The solution for the “marginal” and/or inadvertent non-final judgment cases being actually decided on the merits by the Maryland appellate courts, with reasonable continuing predictability for the vast majority of appeals that do not have these concerns, may be found in a Federal Rule and legal interpretation, and recent developments support a similar Rules adoption. Read More…

Event: Chambers Chat with COSA Judge Beachley

From our inbox…


The YLS of the Frederick County Bar and MSBA YLS is hosting a

Chambers Chat

with

The Honorable Donald E. Beachley

Judge at the Court of Special Appeals

on

Wednesday September 27, 2017

5:30 p.m. until 7:00 p.m.

Miles & Stockbridge

30 West Patrick Street, 5th Floor

Frederick, Maryland 21701

Judge Beachley will be talking to the group about (1) preserving the record; (2) concise briefing; (3) and oral argument techniques.  There will also be a question and answer period.

Refreshments will be provided

RSVP not required

For more information please email Detric Kemp at Detric@conklynlawfirm.com

September 2017 Maryland Certiorari Grants

The merits docket for September Term 2017 is filling up fast, with 12 new grants posted yesterday on the Maryland Court of Appeals website. We’re now up to 47 merits cases, meaning that the merits dockets is probably about half full. The cases involve a drug-sniffing dog, a woman who needed to visit the rest room before submitting to a breathalyzer test, a challenge to the authentication of business records, a wrongful death claim against a pyschiatrist who discharged a patient from involuntary commitment, a statute-of-repose defense against an asbestos claim, and many more. The full list appears after the jump. Read More…

COSA Spotlight: Judge Stuart Berger

By Steve Klepper (Twitter: @MDAppeal)

This post kicks off a series of profiles of the judges of the Court of Special Appeals. Our guinea pig for this series is Judge Stuart R. Berger, who holds one of the Court’s eight at-large seats. I interviewed him at his Baltimore City chambers. Read More…

August 2017 Maryland Certiorari Grants

The Court of Appeals posted a batch of August 28 certiorari grants, but we were waiting for the questions presented to appear on the Court’s site before we did a post. They’re up, and they’re interesting. Question 1 in Seaborne-Worsely, for example, involves a bar-exam-type hypothetical on the operation of Maryland’s contributory negligence rule; it looks like the Court of Appeals took the case on bypass review. State v. Brookman (COSA opinion here) features a variety of appellate procedure questions arising out of Drug Court proceedings. Rodriguez v. Cooper (COSA opinion here) is on its second trip to the Court of Appeals, which in 2015 reinstated a jury finding of gross negligence against a corrections officer in charge of prison transport bus during one inmate’s murder of another. This time, the question is whether the cap on noneconomic damages applies.

The complete list of grants appears after the jump. Read More…