Appellate Courts’ “Undying Appreciation” for Useful Record Extracts

By Steve Klepper (Twitter: @MDAppeal)

Maryland Court of Appeals Judge Robert McDonald is known for thorough, scholarly opinions, which earned him the MSBA Section of Litigation’s Harrell Award for Judicial Excellence in 2019. He is not known for hyperbole. As a result, this footnote in one of his recent opinions, MVA v. Geppert, was striking:

In presenting the relevant materials to us, the parties have distributed them over four separate appendices and a copy of the record extract that was filed in the intermediate appellate court. This suggests that there may have been a lack of cooperation between counsel. We will not attempt to assign blame for this situation and, in any event, we have reviewed the original record for purposes of this opinion. We simply note that future litigants will earn the undying appreciation of an appellate court if they can successfully consolidate relevant materials from the record in an agreed-upon record extract, as encouraged by Maryland Rule 8-501.

When Judge McDonald says litigants have an opportunity to earn an appellate court’s undying appreciation, he means it. And if you attend continuing legal education events where Maryland appellate judges speak, you’ll hear strong opinions from the judges regarding the record extract (our state-practice equivalent of the Joint Appendix). When I lectured alongside appellate judges in conjunction with the release of the fifth edition of Appellate Practice for the Maryland Lawyer, the judges often would perk up when I discussed the record extract.

Below I’ll address six key ways that advocates can make record extracts more helpful to appellate judges.

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Additional November 2020 Maryland Certiorari Grant

Following its November 19 conference, the Court of Appeals of Maryland granted review in one additional case. It is listed below, followed by two cases in which the Court of Appeals has accepted certified questions for review.

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Introducing the Applicants for the Court of Special Appeals

Today was the deadline to submit applications to the Judicial Nominating Commission for the vacancy on the Court of Special Appeals created by the retirement of Judge Timothy Meredith. Applicants must be residents of Anne Arundel, Calvert, Charles, or St. Mary’s County. The Commission will interview the applicants on December 21, 2020, and submit a list of the nominees to the Governor.

The applicants include two trial court judges, seven attorneys, and one administrative law judge:

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Not A Child, Not Yet An Adult: Why Maryland’s Laws Pertaining To Juveniles Charged With Felony Murder Have Not Kept Pace With Evolving Standards

By Megan Coleman

Maryland, like every other state in the country, has a juvenile court system set up to promote the welfare of juveniles, to develop the character of the juvenile to become a productive member of society, and to instill public safety and protection of the community. See Courts and Judicial Proceedings Article (C.J.) § 3-8A-02.

In Maryland, the law recognizes distinctions between juveniles and adults, and in many criminal cases, provides juveniles with the benefit of having their criminal case heard in juvenile court, or at the very least, provides the juvenile with the opportunity to have a hearing to determine whether the case may be transferred to juvenile court.

But for a certain subset of juveniles, namely 16 and 17-year-olds charged with first-degree murder, the law treats these children as though they are adults, providing no opportunity for these juveniles to have a hearing to determine whether their cases would be appropriate to transfer to juvenile court.

It may seem absurd to think that society would permit an almost 18-year-old to be subject to juvenile court jurisdiction for only three plus years (as jurisdiction of the juvenile court terminates at age 21), for committing the crime of first-degree murder.

However, there may be legitimate (and constitutional) reasons for giving all juveniles, the opportunity to have their case transferred to juvenile court. Alternatively, if 16 and 17-year-olds charged with first-degree murder are still required to be charged in adult court, there may be valid (and again constitutional) reasons for mandating special sentencing practices before a court may impose a life with the possibility of parole sentence upon a juvenile.

These reasons should become even more apparent in the context of a juvenile charged with first-degree felony murder, an offense which has drawn worldwide criticism not just in the context of charging a juvenile, but in its application to adults as well.

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“This is the Way”— A Practical Roadmap Towards Constitutional Electoral College and Redistricting Reform.

By Michael Wein

Following last week’s election results, with Pennsylvania and Arizona decided and declared by all media outlets, President-Elect Joseph Biden and Vice President-Elect Kamala Harris’ will be Inaugurated on January 20, 2021.  Considering the divisiveness of the 2020 election, it is unsurprising there has been significant online discussion of the present Electoral College system.   This is also unsurprising, as two of the last six Presidential elections have gone to the candidate who did not win the popular vote nationwide. Two pending Federal Circuit Court of Appeals cases are strong Certiorari candidates to the Supreme Court, tackling Electoral College reform not through a transition to popular vote, but rather, a more accurate transition to the traditional Congressional District allocation method approved by Framers such as James Madison, and currently employed only in Maine and Nebraska.

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November 2020 Maryland Certiorari Grants

Today the Maryland Court of Appeals granted review in three civil cases and five criminal cases. The criminal petitions include a challenge to the Court of Special Appeals’ practice of issuing summary denials of applications for leave to appeal.

The cases are listed below, with the questions presented and, where applicable, links to the Court of Special Appeals opinion under review.

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Maryland Court of Appeals Criminal Decisions, 2019 Term

By Steve Klepper (Twitter: @MDAppeal)

To follow up on last year’s post, I’ve continued to track merits-stage decisions by the Court of Appeals of Maryland in criminal cases.  

During the September 2019 Term (9/1/2019 to 8/31/2020), the Court of Appeals decided 27 criminal appeals following argument.[1] Below is my categorization of those decisions.

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Harmless Error in Court of Special Appeals Opinions, 2017 to 2020

By Erica Becker
Guest Contributor[*]

Maryland precedent indicates that in criminal cases, a significant majority of errors will not be deemed harmless on appeal. The burden is on the State to show errors are harmless, and that burden is quite high:

“Harmless error review is the standard of review most favorable to the defendant short of an automatic reversal.” Bellamy v. State, 403 Md. 308, 333, 941 A.2d 1107 (2008). When we have determined that the trial court erred in a criminal case, “reversal is required unless the error did not influence the verdict.” Id. at 332, 941 A.2d 1107 (citation omitted). “To say that an error did not contribute to the verdict is … to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed by the record.” Id. (citation omitted). In other words, reversal is required unless we find that the error was harmless. We have explained that an “error is harmless only if it did not play any role in the jury’s verdict.” Id. (emphasis added) (citation omitted). The State carries the burden of proving, beyond a reasonable doubt, that the error meets this high standard. Dionas v. State, 436 Md. 97, 108, 80 A.3d 1058 (2013) (citation omitted).

Porter v. State, 455 Md. 220, 234, 166 A.3d 1044, 1052 (2017).

However, a review Court of Special Appeals opinions from recent years indicates that in practice, errors are deemed harmless approximately half the time.

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A Maryland Guide to Judicial Recusal

By Derek M. Stikeleather

Recusal standards for appellate judges rarely trend on social media. But the recent nomination of Seventh Circuit Judge Amy Coney Barrett to the United States Supreme Court has spawned widespread popular debate over whether she should recuse herself from deciding any cases involving the results of the 2020 Presidential election. Regrettably, most media soundbites on the issue offer little more than partisan excerpts of her supporters saying that she should not recuse herself and her critics arguing that she should. Few delve into the controlling rules and standards.

Ultimately, a Justice Barrett recusal seems unlikely for one simple reason: At the Supreme Court, the recusal decision rests exclusively with the Justice herself and is not subject to further review. Thus, absent any unambiguous precedent that requires her recusal or a statement from Judge Barrett that she plans to recuse herself from election cases, she appears unlikely to do so.

While I have nothing special to add to the arguments for or against a potential Justice Barrett recusal, the uproar prompted me to look more closely at Maryland’s standards for recusing appellate judges. Here’s what I found:

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Court of Appeals reviews moot appeal from a non-final judgment – In re O.P.

By Brad McCullough

As we know, courts typically refrain from deciding cases that do not present real, live justiciable controversies. Where the passage of time has erased the dispute that once existed between the parties, a court will generally dismiss that case as being moot. That’s not always the case, however, as there are narrow exceptions to that general proposition. We also know that appellate courts generally have jurisdiction only over appeals from final judgments, i.e. orders or judgments that adjudicate all claims against all parties. But again, there are exceptions to this general rule.

Recently, in an opinion authored by Judge Robert McDonald, the Court of Appeals decided a moot case in an appeal taken from a non-final judgment: In re O.P., No. 26, Sept. Term, 2019, 2020 WL 4726601 (Aug. 14, 2020). Due to the public interest presented by the litigation—and the fact that the litigation presented a controversy capable of repetition, yet evading review—the Court considered the case even though it had become moot. And because the appeal conclusively determined an important issue separate from the merits of the action that would be effectively unreviewable if the appeal had to await entry of a final judgment, review was allowed under the collateral order doctrine.  

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