Not to Worry: A Comment on Today’s Dissent in Ray v. State

By Steve Klepper (Twitter: @MDAppeal)

(This post has been updated to address some points I overlooked in my original post. The irony.)

Today the Court of Appeals, in Ray v. State, issued useful guidance on the limits on an appellate court’s discretion under Md. Rule 8-131(a) to consider the merits of a waived claim. The five-judge majority, in an opinion by new Chief Judge Barbera, held that the Court of Special Appeals, in an opinion by new Court of Appeals Judge Watts, erroneously reached the merits of the defendant’s claim in Ray v. State, 206 Md. App. 309 (2012).

Two judges dissented.  The dissent “agree[d] that the Court of Special Appeals erred in concluding that the matter was a proper subject of appellate review.”  Nevertheless, the dissent “disagree[d] with the Majority’s failure to vacate the Court of Special Appeals’ holding about the merits of Ray’s Fourth Amendment claim—a decision that rests on an expanded and worrisome interpretation of Maryland v. Pringle, 540 U.S. 366, 124 S. Ct. 795 (2003) …. This means that the Court of Special Appeals’ holding will be applied by trial courts until the next time this Court decides a case applying Pringle in a similar context.”

Not to worry. The decision of the Court of Special Appeals on the merits of the question is now only dicta:

A Court of Special Appeals’ opinion underlying a judgment, which is reversed or vacated in its entirety by this Court on another ground, may, depending upon the strength of its reasoning, constitute some persuasive authority in the same sense as other dicta may constitute persuasive authority. Nonetheless, analytically the intermediate appellate court’s opinion is only dicta because it no longer supports or reflects a viable appellate judgment.  Accordingly, such an opinion is not a precedent for purposes of stare decisis.

West v. State, 369 Md. 150, 797 A.2d 1278, 1282 (2002).

The wrinkle in Ray is that the Court of Appeals ultimately affirmed the judgment below, since the Court of Special Appeals had ruled against the defendant on the merits of the question that it should not have reached. But the principle in West still should prevail—since the Court of Special Appeals erred in reaching the question in the first place, its discussion on the merits is dicta.

Nevertheless, there is some potential for confusion, since a not-too-close review of the procedural history of the case would show “affirmed.” I’ve even seen practitioners, and occasionally judges, cite as precedential a case with the signal “reversed on other grounds,” without recognizing that the opinion below was rendered dicta. The lesson, though, is that one should always carefully review the procedural history of the case, rather than just being content that Westlaw or LEXIS shows the decision was affirmed.

But I do believe that that the dissent in Ray v. State is properly labeled a “concurrence,” since the opinion concurs with the disposition of the case by the Court of Appeals.