Maryland Court of Appeals Ends Unusual Certiorari Procedure

By Steve Klepper (Twitter: @MDAppeal)

With no fanfare, the Court of Appeals of Maryland has ended an internal practice that was unusual among state high courts. At the May meeting of the MSBA Litigation Section Council, Court of Appeals Judge (and Section Chair) Glenn Harrell informed the council that the Court of Appeals has, effective immediately, disbanded its Bypass Committee.

That committee, composed of a rotating duo of Court of Appeals Judges, reviewed every Appellant Brief filed in the Court of Special Appeals. If both judges agreed that a brief raised questions warranting certiorari, the committee would recommend it to the full Court at the Judges’ monthly conference. If at least one more Judge agreed, the Court would grant certiorari on its own motion.

These “own motion” grants came fairly regularly, but the practice, like Maryland certiorari practice generally, was somewhat mysterious. In Maryland, law clerks play no part in the certiorari process, and the Judges are tight-lipped about individual cases. If there are any dissents from the denial of certiorari, I’ve never seen one. CJP § 12–203 requires that the “reasons for the denial of the writ shall be in writing,” but those reasons typically consist of a boilerplate statement that review is not desirable or in the public interest. In most big bypass cases, like the most recent challenge to contributory negligence, the appellant petitioned to bypass the Court of Special Appeals. Own-motion grants were sometimes head-scratchers.

Such own-motion grants created some procedural head-scratchers as well. The sole authority for such grants is a single sentence of CJP § 12–201, providing that “the Court of Appeals also may issue the writ of certiorari on its own motion.” The Maryland Rules do not mention own-motion cert grants at all. In one recent case, the Court discovered that an own-motion grant required the Court to resolve an anomaly in the intersection of Rule 8-131 (governing the scope of appellate review) and the law-of-the-case doctrine. See Kearney v. Berger, 7 A.3d 593 (Md. 2010). And, at least in theory, own-motion grants could create problems for parties who had already filed briefs drafted specifically for the Court of Special Appeals. Before that intermediate appellate court, the question is what the law is, because all Maryland precedents are binding. Before the Court of Appeals, parties instead can argue what the law should be. I’d be surprised if the Court of Appeals would deny leave to file a supplemental brief in such a situation, but this potential problem highlights that the appellate rules weren’t drafted with own-motion grants in mind.

Eliminating the Bypass Committee represents another wise reform under Chief Judge Barbera. It compliments the most important reform — the new policy of deciding every case in the same term it was argued. In retrospect, it’s surprising that the Court was reaching down to grab cases on its own motion notwithstanding a (since-resolved) backlog of argued cases awaiting opinions.

Bypass still will be possible. In cases where parties are angling to make new law, parties can still petition for bypass. But on such petitions the respondent will have the opportunity to make the case against certiorari. Judge Harrell indicated that the Court is open to the Court of Special Appeals certifying more cases under Rule 8-304. And the Court of course still retains statutory authority for own-motion grants in unusual cases.

Overall, the clear trend is that the Court of Appeals is looking more for input from outside the Court — the parties, the Court of Special Appeals, and amici — in identifying cases where certiorari is desirable and in the public interest.