Maryland Court of Appeals to Follow SCOTUS Policy of Deciding Argued Cases by Term’s End

By Michael Wein

New Chief Judge Mary Ellen Barbera, after her appointment in July by Governor O’Malley, announced her objective of having the Court of Appeals issue opinions no more than one year after oral arguments. Though unsaid, this new policy was clearly intended to refute criticism, including from the Baltimore Sun and The Maryland Daily Record, about how some cases in the Court of Appeals seemed to languish for years under Chief Judge Bell’s tenure.

This objective could have simply taken the form of an informal, voluntary agreement amongst judges not to take more than one year. However, in the past two months, as the specifics of the plan emerged, the Court of Appeals has signaled that it is taking a different approach.  It involves a significant change, adopting a policy already in effect at the United States Supreme Court, under which all cases are decided by the end of the term that they are argued, which in Maryland is the end of August.  Like most things, there may be some missteps along the way, but once fully implemented, this policy may work better in Maryland than the mostly smooth process that has long existed at the Supreme Court.

Chief Judge Barbera was the guest speaker at a recent Prince George’s County Bar Association meeting I attended. Much of her discussion involved the new policy, and she stated that the judges of the Court of Appeals “unanimously” support this new guiding principle. She noted that, based on her previous work as an Assistant Attorney General handling criminal appeals on behalf of the State of Maryland, she would often find herself working on Supreme Court cases (presumably mostly involving certiorari petitions by criminal defendants).  As a result, Chief Judge Barbera became familiar with the Supreme Court’s policies and with this background, considering whether some of those policies would translate well to the Court of Appeals.

The United States Supreme Court, with the unusual exception of a case every few years that is set for re-argument the next Term (as in Citizens United), decides every case during the same Term the case is argued. The Term’s first arguments are in October, and all cases are decided no later than the end of the Term, usually the following June. All certiorari conferences are scheduled well in advance, and the Supreme Court, unlike the Court of Appeals, does not meet for substantive certiorari conferences during the summer months of July, August, and September.  This year, the “long conference” covering and deciding upon nearly a quarter of all certiorari petitions received, was held on September 30, 2013.

In the Supreme Court, certiorari conferences in January and February can demarcate which cases are put on which Term’s calendar.  Up through about the third week in January, all such pending cases (about 75 per year) are scheduled for oral arguments that same Term and are slotted (in the case of the January certiorari grants) for April of that Term, to be decided by the end of the June. Usually, these cases from January certiorari grants are anticipated to be less complex and controversial and, therefore, easier to decide.  Sometimes, however, the more complicated cases are thrust upon the Supreme Court later in the Term, such as the Affordable Care Act (ACA) cases, which had certiorari granted in November 2011 and oral arguments scheduled in March 2012. Perhaps to make up for the unusual complexity of the legal issues involved, the Supreme Court not only granted certiorari in three ACA cases from different Circuits but also raised additional questions presented for the parties to address, resulting in a highly unusual five hours of oral arguments.  The enormous implications of the decision and “short-notice” legal work, also likely  justified, in the Supreme Court’s estimation, that almost half of the month of March oral arguments, would be reserved on just on the ‘Obamacare’ cases, taking up the argument time of what in other years would be five (5) separate legal cases, so that dispositive opinions would feasibly be issued by the end of June 2012.

In this regard, Maryland practitioners may notice a change in the nature of the Court of Appeals’ scheduling of argument for cases pending Certiorari decisions in February and March.  Previously, when there was no deadline for deciding cases, it did not make much difference when argument for a given case was scheduled.  Under the new policy, for example, it is highly unlikely that a case like the recent Exxon-Mobil decisions—where there were over 300 pages of opinions in the Maryland Court of Special Appeals and a 19,410-page joint record extract—would, if certiorari were granted in February or March, be set for argument the same term.  The Court of Appeals likely will identify the cases anticipated to be more complex and place them on the next term’s argument calendar, to give sufficient time for research, review of the record, internal court deliberation and drafting opinions.

The Maryland Court of Appeals has three existing practical advantages and features that would likely lead to a comparably easy transition to a “same term” decision-making schedule, though, inevitably, there may be some ‘kinks’ to work out the first year.

First, the judges of the Court of Appeals typically review each certiorari petition (about 1,000 per year) individually. In contrast, though the scope of the practice and participation by individual Justices have varied over the years, the present Supreme Court Justices, with the exception of Justice Alito, delegate this review to a “Cert Pool” comprised of their law clerks. A single law clerk prepares a “Cert Memo” that arguably leads to an outsized role in the eventual decision to grant or deny certiorari. Because the Maryland Court of Appeals Judges review the petitions themselves, they can better get a first-hand sense of complexity of the case’s issues, including the approximate amount of time necessary to draft and publish an appropriate opinion on the case. (On a relevant sidenote, I published a piece last year in The Maryland Daily Record, with Clarence Gideon of Gideon v. Wainwright as an inspirational example of a “cert-worthy” case that would not be recognized by the average law Clerk, and arguing that as a better practice and a matter of the Constitutionally delegated authority deemed to only apply to Supreme Court Justices themselves, the Cert Pool should be disbanded in favor of a randomized selection process used in most Federal Courts already to determine judicial assignment, with each individual Supreme Court Justice’s chambers (including all four law clerks) to be responsible for one-ninth (1,000 per justice) of each year’s petitions.)

Second, the Maryland Court of Appeals has never taken off the entire three summer months, (assuming September is also summer), like the Supreme Court.   Although there is a two-month break from oral arguments in July and August (and obviously most of the Judges save their vacations for that time period), certiorari petitions are still being considered during those summer months. Based on Chief Judge Barbera’s pronouncement, the Court will at the very least be making some hard decisions on cases by the end of August of the Term, that will require them meeting in person, which they already typically do for certiorari conferences.

Third, a “same Term” schedule means that the law clerks who typically begin working for the respective judges in August or early September, will be able to “see through to the end” each and every case that is argued beginning in September of that Term, through the last oral arguments in June.  (The Supreme Court clerkships typically begin in July, which when combined with the use of the Cert Pool, does pose some significant efficacy concerns, in that there are about three months when the law clerk is still being attuned to his or her surroundings as a new Supreme Court clerk, are asked to immediately jump into drafting certiorari memos, which will very likely determine the vote on the petition.) Instead, in Maryland, the law clerks’ work will only be truly complete when they finish up the last draft and research work assigned by their judge, no later than mid-August, but possibly as early as June or July, depending on the circumstances and the incentive the law clerk has to finish their work early.

Of course, there may be unusual cases that do not fit this “same-term” mold such as when the Supreme Court grants certiorari in a case raising the same legal issue as a case scheduled for argument or already argued in the Maryland Court of Appeals. One solution would be that the Court of Appeals making clear that the case decision is being held for a Supreme Court case, such as by requesting future supplemental briefing by the parties; the Court of Appeals, however, retains discretion to deviate from the same-term rule, and cases like that are likely to be the exception, not the rule, under Chief Judge Barbera’s recent pronouncement